The entitlement of claimants and the share of compensation in cases involving a tortfeasor, as determined by the provisions of the Motor Vehicles Act and the Hindu Succession Act.

M.R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgment and award dated 22.01.2016 passed by learned Motor Accident Claims Tribunal (Main), Mahesana, in M.A.C.P. No. 700/2010, by which the learned Tribunal has partly allowed the said claim petition and has awarded the total compensation of Rs. 32,71,035/- to the original claimants together with interest thereon @ 9% per annum from the date of the claim petition till realization, towards the compensation for the death of deceased-Surekhaben w/o. Kirtikumar Patel, original opponent-United India Insurance Company Limited-insurer of Car bearing registration No. GJ-18-AC-2401, has preferred the present first appeal.

2. It is not in dispute that in a vehicular accident, which occurred on 26.05.2010, wife of original claimant No. 1, Surekhaben, who was traveling in the said car died. Therefore, husband of deceased-Surekhaben and minor Fenil, son of the deceased, filed M.A.C.P. No. 700/2010 before the learned Tribunal claiming a total sum of Rs. 35,00,000/- towards compensation. At this stage it is required to be noted that the original claimant No. 1-Kiritbhai T. Patel, husband of the deceased-Surekhaben, was also the driver and owner of Car No. GJ-18-AC-2401 and, therefore, in M.A.C.P No. 700/2010 in fact he was also joined as party respondent No. 1. Therefore, as such the original claimant No. 1 filed the claim petition against himself. That as the deceased-Surekhaben died in a vehicular accident while she was traveling in Car No. GJ-18-AC-24 01 which, at the relevant time, was being driven by original claimant No. 1 and also owned by him is not in dispute.

3. That therefore on appreciation of evidence and considering the Income Tax Returns of the deceased-Surekhaben produced below Exh.24, Exh.25 and Exh.26 for the Assessment Years 2008-09, 2009-10 and 2010-11 the learned Tribunal assessed the average income of the deceased at Rs. 2,13,069/- per annum and after adding 50% towards future rise in income the learned Tribunal has considered the prospective income of Rs. 3,19,603/- per annum, after deducting 1/3rd towards the personal expenses of the deceased, the learned Tribunal considered dependency benefit of Rs. 2,13,069/- per annum and after applying multiplier of 15, awarded Rs. 13,96,035/- towards loss of dependency/future loss of income. That thereafter the learned Tribunal has awarded a further sum of Rs. 1,25,000/- under the conventional head and funeral expenses. Thus, by the impugned judgment and award the learned Tribunal has awarded a total sum of Rs. 32,71,035/- with 9% interest thereon from the date of the claim petition till realization. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Tribunal, the original opponent No. 2-insurance company, insurer of Car No. GJ-18-AC-2401 involved in the accident, has preferred the present First Appeal.

4. Mrs. Sharmistha Dave, learned advocate appearing on behalf of the appellant-Insurance Company, has vehemently submitted that in the facts and circumstances of the case the learned Tribunal has materially erred in awarding future loss of income/loss of dependency assessing the prospective income of Rs. 2,13,069/- per annum. It is vehemently submitted by Mrs. Dave, learned advocate appearing on behalf of the appellant-Insurance Company, that the learned Tribunal has materially erred in assessing the income of the deceased at Rs. 2,13,069/- by taking the mean of income mentioned in the Income Tax Returns for Assessment Years 2008-09, 2009-10 and 2010-11. It is further submitted by Mrs. Dave, learned advocate appearing on behalf of the appellant-Insurance Company, that while assessing the income of the deceased the learned Tribunal has materially erred in considering the Income Tax Return for Assessment Year 2010-11 produced at Exh.26 It is submitted that it