Contributory negligence and determination of compensation.

JUDGMENT :

R.M.CHHAYA, J.

1. Feeling aggrieved and dissatisfied by the impugned judgment and award dated 30.09.2016 passed by the Motor Accident Claims Tribunal (Main), Ahmedabad (Rural) at Mirzapur in M.A.C.P. No.1486 of 2013, the original claimants have preferred First Appeal No.3215 of 2017, whereas, the appellant – New India Assurance Co. Ltd. has preferred First Appeal No.542 of 2017 under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act”).

2. Both the appeals are tagged together and are heard together and the same are disposed of by this common judgment and order.

3. Following facts emerge from the record of these appeals.

3.1 That the accident took place on 11.07.2013 near Ravlipur Patia on National Highway No.8 i.e. between Ahmedabad to Vadodara. It is the case of the claimants that the deceased Ramavadh Samu was driving Oil Tanker bearing registration no.GJ-1-AT-7711 from Ahmedabad to Vadodara. The record indicates that when the Tanker reached at the scene of occurrence on highway, a Crane bearing registration no.MH-43- 0952 was lying on the road without any light or reflector or indicator and because of which the Oil Tanker dashed behind the Crane. The record indicates that the impact of the same, the fire broke out in the Oil Tanker and due to which the deceased sustained burn injuries and died on account of the same. An FIR was lodged by the representative of the Crane at Exhibit 23 and the present claim petition was filed by the claimants under Section 166 of the Act before the Tribunal and claimed compensation of Rs.25,00,000/-. It is the case of the claimants that the deceased was working as driver and was earning Rs.5,000/- as salary. The claimants relied upon the oral depositions of the wife of the deceased Sitadevi at Exhibit 27 and one Upendranath Yadav at Exhibit 31. The claimants also relied upon the documentary evidence such as FIR at Exhibit 23, panchnama of the place of occurrence at Exhibit 24, inquest panchnama at Exhibit 25, P.M. report at Exhibit 26 and the insurance policy of both the vehicles at Exhibit 35 and Exhibit 43. The Tribunal, after appreciating the evidence on record, came to the conclusion that the driver of the Crane was solely negligent for the accident as the Crane was parked without any light, indicator or sign. As far as the quantum is concerned, the Tribunal assessed the income of the deceased at Rs.4,000/- per month and also considered increase in income by way of prospective income to the tune of 30% and after deducting 1/4th personal expenses and applying multiplier of 14, awarded a sum of Rs.6,55,200/- as compensation under the head of future loss of income. The Tribunal further awarded a sum of Rs.50,000/- as loss of estate and loss of consortium and Rs.10,000/- as funeral expenses and while partly allowing the claim petition, the Tribunal awarded total compensation of Rs.7,15,200/- with 9% interest from the date of claim petition till its realization. As observed hereinabove, the claimants have preferred appeal for enhancement of compensation, whereas, the appellant – Insurance Company of the Crane has filed the appeal on the ground of negligent.

4. Heard Mr.Vilav Bhatia, learned counsel for the claimants, Mr.Sunil Parikh, learned counsel for the insurer of Tanker i.e. National Insurance Co. Ltd and Mr.Maulik Shelat, learned counsel for the appellant – New India Assurance Co. Ltd and perused the photo copy of the FIR at Exhibit 23 and panchnama at Exhibit 24. Such copies are taken on record.

5. Mr.Vilav Bhatia, learned counsel for the claimants has submitted that the Tribunal has committed an error in considering the income of the deceased at Rs.4,000/- per month. He has contended that even if in absence of any evidence, considering the minimum wages standard prevailing on the date of the accident, the deceased has skilled worker and considering the deceased as skilled worker, the income would be at least Rs.5,000/- per month. Mr.Bhatia, learned coun