The main legal point established in the judgment is the determination of negligence and the appropriate compensation under the Motor Vehicles Act, 1988.

JUDGMENT :

R.M.CHHAYA, J.

1. Feeling aggrieved and dissatisfied by the impugned judgment and award dated 14.09.2015 passed by the Motor Accident Claims Tribunal (Aux.), Ahmedabad City (hereinafter referred to as “the Tribunal”) in M.A.C.P. No.487 of 2009, the appellant – Insurance Company has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act”).

2. Following facts emerge from the record of the appeal.

2.1 That on 09.02.2009 at about 12.30 at midnight, the deceased Birendrasingh Omkarsingh Thakur and his grandfather Arjunsingh Mohansingh were returning to their residence on Honda Activa (scooter) bearing registration no.GJ-1-JM-4181 and when he reached near Hatkeshwar Bus Stand, an Eicher truck bearing registration no.GJ-16-X-7564 being driven in rash and negligent manner and in excessive speed dashed with active scooter with front right side of the truck and dragged the active along with deceased and pillion rider upto 40 feet, as a result of which the deceased sustained serious fatal injuries. An FIR being C.R.No.63/2009 lodged with Bamol Police Station and the claim petition under Section 166 of the Act came to be filed claiming compensation of Rs.30,00,000/-.

2.2 The claimants examined one Jagdishbhai Amarsinhbhai Mistry as an eye witness at Exhibit 53. The claimants also relied upon the documentary evidence, such as, FIR at Exhibit 41, panchnama of the scene of accident at Exhibit 42, charge-sheet at Exhibit 43, inquest panchnama at Exhibit 44, post-mortem report of the deceased at Exhibit 45, Sanad of deceased issued by Bar Council of Gujarat at Exhibit 46, identity card of the deceased as a Notary at Exhibit 47, PAN Card of deceased at Exhibit 48, school leaving certificate of deceased at Exhibit 49, original income tax return for the A.Y.2007-2008, Taxpayer’s counterfoil at Exhibit 51 and original income tax return of deceased for A.Y.2008-2009.

2.3 It was the case of the claimants before the Tribunal that the accident occurred because of sole negligence of the driver of the truck. It was further case of the claimants and more particularly the wife of the deceased in her oral deposition at Exhibit 40 that the deceased was a practicing advocate and was 49 years of old at the time of accident and earning Rs.18,000/- per month as advocate notary. The Tribunal after considering the FIR at Exhibit 41 and panchnama at Exhibit 42 came to the conclusion that the driver of the truck was solely negligence. Upon appreciating the evidence on record, the Tribunal assessed the income of the deceased, who was working as notary, at Rs.11,700/- per month and after granting additional compensation by way of prospective income to the extent of 30% deducting 1/4 towards personal expenses and applying multiplier of 13, the Tribunal awarded compensation of Rs.17,79,492/- under the head of deficiency benefit. Over-and above the same, the Tribunal also awarded a sum of Rs.50,000/- as compensation under the head of loss of estate, Rs.50,000/- as loss of consortium and Rs.5,000/- funeral expenses and while partly allowing the claim petition, the Tribunal awarded Rs.18,84,500/- as total compensation along with interest at the rate of 9% p.a. and being aggrieved and dissatisfied by the same, the appellant – Insurance Company has preferred this appeal.

3. Heard Dr.Rushang Mehta, learned counsel appearing for the appellant – Insurance Company and Mr.Hiren Modi, learned counsel appearing for the original claimants. Though served, nobody has appeared for other respondents.

4. Dr.Mehta, learned counsel appearing for the appellant – Insurance Company contended that the Tribunal has committed an error in coming to the conclusion that the driver of the truck was sole negligence. He contended that it was also contended before the Tribunal that the activa scooter was being driven on the wrong side and, t