Point of law : 1/3rd is to be deducted from total income and when so deducted the total loss of income would be Rs.14,000/- per month and the multiplier which is adopted being 14 taking into consideration the age of deceased as 41 years being just and proper, compensation.

ORDER :

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1. This is a claimants’ appeal calling in question the correctness and legality of the judgment and award passed in M.A.C.P. No.600 of 2009 dated 31.01.2020 whereunder claim petition filed has been allowed in part and a total compensation of Rs.13,24,400/- with interest @ 9% per annum has been awarded as against claim of Rs.1,75,00,000/-.

2. Facts in brief which has led to filing of this appeal are as under.

3. The husband of the first claimant and father of second claimant, namely, Champakbhai Patel while proceeding in his Wagon-R car on 29.10.2009 to Surat from Virpur, an oncoming truck dashed against the Wagon-R, as a result of which said Champakbhai Patel and his daughter Ekta Champakbhai died at the spot due to accidental injuries they sustained in said accident. Hence, a claim petition came to be filed in M.A.C.P. No.600 of 2009 by the wife and son of the deceased seeking compensation for the death of Champakbhai Patel. In fact, other two claim petitions were also filed in respect of same accident which is not the subject-matter of the present appeal. Tribunal after evaluating the pleadings and evidence tendered by the parties as noticed hereinabove awarded total compensation of Rs.13,24,400/- under the following heads :

4. It came to be held by the Tribunal that the driver of the Wagon-R was also negligent to the extent of 25% on account of there being head-on collision and as such said amount was ordered to be deducted from the compensation awarded to the dependents. Not being satisfied with the quantum of compensation awarded, this appeal has been filed.

5. We have heard Mr.Hiren Modi, learned counsel appearing for appellants – claimants and Ms.Kirti S. Pathak, learned advocate appearing for the insurer. Respondent Nos.1 and 2 are served and unrepresented.

6. It is the contention of Mr.Hiren Modi, learned counsel appearing for the claimants that Tribunal committed a serious error in awarding abysmally very less compensation without considering the material evidence available on record and in particular he would draw the attention of this Court to Exhibits- 74, 75 and 76 to contend that income of the deceased was by growing and supplying sugarcane to factories manufacturing sugar as evident from these records which the Tribunal has completely ignored. He would also contend that Tribunal has erred in not considering the fact that wife of the deceased who entered the witness-box has categorically denied that they did not carry on agricultural activities in the land owned by the deceased subsequent to his death and as such, Tribunal ought to have taken the entire income that was earned by the deceased as loss of income to dependents. He would also submit that Tribunal has not awarded just and reasonable compensation. Hence, he prays for enhancement of compensation under all heads.

7. Per contra, Ms.Kirti S. Pathak, learned counsel appearing for the insurer would support the judgment and award passed by the Tribunal and in support of her submissions, she would rely upon the judgments of the Apex Court in the cases of New India Assurance Company Limited vs. Yogesh Devi and others [(2012) 3 SCC 613] and State of Haryana and others vs. Jasbir Kaur and others [AIR 2003 SC 3696], to contend that where the land owned by the deceased is not lost to the dependents, there would be no loss of income and as such, Tribunal has rightly taken the income of the deceased at Rs.8,000/- per month and has ordered for payment of compensation towards loss of dependency which is just and reasonable. She would also contend that when claimants continue to own the agricultural land and said land not having been owned by th