The main legal point established in the judgment is the application of legal principles from the case of Kishan Gopal and Others vs. Lala and Others, (2014) 1 SCC 244 to calculate the enhanced compensation amount under Section 163A of the Motor Vehicle Act.

JUDGMENT :

VAIBHAVI D. NANAVATI, J.

1. This First Appeal is filed by the appellants-original claimant under Section 173 of the Motor Vehicle Act challenging the judgment and award dated 19.9.2019 passed by the learned Motor Accident Claim Tribunal (Aux.) at Anand in Motor Accident Claim Petition No. 475 of 2017. The said judgment and award according to the appellants herein is contrary to the settled principles of law as laid down in the case of Kishan Gopal and Others vs. Lala and Others, (2014) 1 SCC 244 and that the quantum of the award is on lower side and contrary to the evidence on record.

2. The brief facts leading to the filing of the present appeal read thus:

2.1 On 16.7.2017, at about 20.30 hours when the deceased daughter of appellants was travelling in auto rickshaw No. GJ-23-Z-1589 along with her grandmother, when they reached near the place of accident driver of the auto rickshaw suddenly applied the brake, hence the vehicle coming from behind dashed with auto rickshaw which resulted in the accident. In same accident grievous injuries were sustained by the daughter of appellants and she succumbed to the same injuries during the treatment in the hospital.

3. The legal representatives of the deceased daughter who was aged five months approached the learned Claim Tribunal by filing MACP No. 475 of 2017 at MACT Anand under the provision of 163A of MV Act, 1988 for the compensation to the tune of Rs.2,09,500/-. The Tribunal by judgment and award dated 19.9.2019 awarded Rs.1,69,800/- together with interest at the rate of 9% to the appellants. The said judgment and award dated 19.9.2016 reads thus:

“ORDER:

The claim petition is hereby partly allowed.

The opponent No. 1 to 3 jointly and severally do pay the applicants Rs. 1,69,800-00 (Rupees One Lax Sixty Nine Thousand Eight Hundred only) together with interest at the rate of 9% p.a. from the date of application till realization. The aforesaid opponent is directed to deposit the awarded amount within one month from today in this Tribunal.

On such deposit being made, first of all deficit Court Fees, if any, to be deducted.

When deposited, after deducting deficit court fees, remaining amount be equally distributed amongst the applicants and from the share of respective applicant, 30% amount be paid to the applicant by A/c payee cheque, and rest 70% be fixed deposited in any nationalized bank for a period of five years in the name of applicant with a condition that no loan or advances shall be floated on the said FDR without prior permission of the Tribunal. However, the applicant will be entitled to get periodical interest which accrues on the said FDR.

Award be drawn accordingly.

Pronounced in the open Tribunal on today on 19th day of September, 2019.”

4. Being aggrieved by the said judgment and award dated 19.9.2019 the appellants have approached this Court by filing the present appeal.

5. Heard Mr. R.G. Dwivedi, the learned advocate appearing for Mr. Pradeep R. Mishra, the learned advocate appearing for the appellants and Mr. Rathin Raval, the learned advocate appearing for the respondent No. 3-Insurance Company.

6. The notice to respondent Nos.1 and 2 is served, but they have chosen not to appear. However, as the appeal is only for quantum this matter is finally heard. 6. Mr. R.G. Dwivedi, the learned advocate appearing for Mr. Pradeep Mishra, the learned advocate appearing for the appellants submitted that the learned Tribunal has erred by considering the income of the deceased only Rs.12,000/- p.m. and erred in awarding Rs.1,69,800/-. The concerned Court has erred in not applying the principles as laid down in the case of Kishan Gopal and Others v. Lala and Others, (2014) 1 SCC 244.

7. Mr. Rathin Raval, the learned advocate appearing for the respondent No. 3-Insurance Company was not in position to controvert the submissions canvassed by the learned advocate appearing for the ap