The main legal point established in the judgment is the entitlement of parents to compensation under the head of dependency loss, considering the income and future prospective income of the deceased.

JUDGMENT :

1. The original claimants as appellants have challenged the judgment and award dated 30th June 2018 passed in the M.A.C.P. No.205 of 2007 by the Motor Accident Claims Tribunal (Auxiliary) at Gondal.

2. Mr.Monal Chaglani, learned advocate has challenged the impugned judgment and award on the ground that the learned Tribunal has not considered the oral as well as documentary evidence on record and has not considered the income aspect in accordance with the judgments of the Hon’ble Apex Court where the income tax returns were produced before the Court. According to Mr.Chaglani, the learned Tribunal has erred in considering the aggregate income of the deceased for the last three years and has not even considered the mother of the deceased as dependent while both the parents were dependent on the deceased son. He further submitted that the Tribunal has totally discarded the evidence and has erred in not considering the parents as dependent and only granted a lump-sum amount of Rs.50,000=00, which could have been granted even under Section 140 of the Motor Vehicles Act. In support of the submission to consider the parents as dependent, Mr.Chaglani has relied upon the following judgments :

(1) Chandra and others vs. Mukesh Kumar Yadav and others, (2021) 6 ALT 116;

(2) Indrawati and others vs. Ranbir Singh and others, 2021 ACJ 2156;

(3) Sukhdev Prasad vs. Sunil Kumar and others, 2022 ACJ 332;

(4) N.Jayashree and others vs. Cholamandalam MS General Insurance Co. Ltd. and others, AIR 2021 SC 5218;

(5) Jagruthi Shishir Banugariya and others vs. Rajvi Kanthan Ahir and others, 2016 ACJ 905;

(6) National Insurance Company Ltd. and others vs. Birender and others, AIR 2020 SC 434.

3. Countering the argument, Mr.Daxesh Mehta, learned advocate appearing for the Insurance Company submitted that the learned Tribunal has given reasons for not considering the parents as dependent and further it has been submitted by Mr.Mehta, relying upon the judgment of the Division Bench of this Court in the case of Bhavnaben Shaileshbhai Rank vs. Mahmadmkhan Mahmadjallaudinkhan Pathan (First Appeal No.3508 of 2021, decided on 6th December 2021), that if at all the income of the deceased has to be considered, then the aggregate income for the last three years is required to be assessed since there is no evidence to support the ITRs filed by the deceased.

4. The learned Tribunal, while considering the report, found that the applicant no.1 Sonalben alias Charmiben Hirenbhai Jivani, i.e. widow of the deceased, had made a declaration to affidavit Exh.23 to delete her name and she had consented to give her share of compensation to the applicants nos.2 and 3 respectively since stating that she remarried after the death of her husband in an unfortunate incident. The applicant no.2 being the mother of the deceased examined herself at Exh.20 and she admitted that her daughter-in-law, i.e. applicant no.1, has remarried. In that circumstances, the learned Tribunal observed that there were only two applicants, i.e. mother and father of the deceased, on record and the learned Tribunal went on to consider the issue, whether or not the parents were entitled to the compensation, while determining the same on the basis of the available evidence. The learned Tribunal thus observed that the mother of the deceased, after the marriage of the deceased with the applicant no.1, moved to Rajkot and the father of the deceased owned a shop at Bagsara. Thus, the learned Tribunal observed that prior to the accident, the sustenance of the parents was on the income of the shop which, as per the learned Tribunal, continued. Thus, the learned Tribunal did not find the applicants nos.2 and 3 as the dependent on the income of the deceased. Hence, the learned Tribunal did not deem fit to grant any compensation under the head of dependency loss.

5. The claimant no.2 had filed her examination-in-chief