The income of the deceased at the time of death must be used to calculate future income loss, and the multiplier should be based on the deceased's age, not the claimants'.

JUDGMENT :

1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant – original claimants being aggrieved and dissatisfied with the judgment and award dated 20.06.2009 passed by the Motor Accident Claims Tribunal, Surat in Motor Accident Claim Petition No.1097 of 1998.

2. Brief facts of the case are as under :

2.1 The brief fact of the present appeal is such that on 02.11.1998, deceased Hemant was riding his motorcycle No.GJ-5-H-5479 towards his home after completing his work and when he reached near the place of accident, opponent No.1 who was driving Truck No.GJ-19-T-2044 came from back side in rash and negligent manner and dashed with the motorcycle of the deceased. As a result, the accident took place and deceased sustained severe injuries and succumbed to the injuries. Therefore, offence to that effect is registered before the Kamrej Police Station vide FIR being I-C.R.No.258 of 1998. The legal heirs of the deceased have filed aforestated claim petition under Section 166 of the Motor Vehicle Act, 1988 claiming compensation of Rs.15,00,000/-. The learned Tribunal vide impugned judgment and award dated 20.06.2009 has granted compensation to the tune of Rs.4,05,000/-. Hence, the present appeal.

Submissions of appellant :

3. Learned advocate Mr.Hiren Modi appearing for the appellants – original claimants mainly argued that the learned Tribunal has erred in assessing compensation on the lower side. He would submit that deceased had brilliant academic career and he was engaged in multifarious earning activities and he was also income tax payer. He would further submit that claimants being parents of deceased have produced income tax returns for the years 1996-97, 1997-98, 1998-99 and 1999-2000. He would further submit that learned Tribunal has taken up income tax return of year 1998-99 to calculate the dependency loss ignoring last income tax return filed for the year 1999-2000 which shows the income of deceased to Rs.54,000/- and as such learned Tribunal has committed serious error. In support of his submissions, learned advocate Mr.Modi relied upon the judgment of Hon’ble Supreme Court in case of Rukmani Jethani and others vs. Gopal Singh and others – 2021 ACJ 2683.

3.1 Secondly, he would submit that learned Tribunal erred in taking up age of the claimants to adopt the multiplier. He would submit that as per settled principle of law, age of deceased is required to be taken up for applying multiplier, loss of future income and future prospects. Learned advocate Mr.Modi would submit that learned Tribunal erred in granting lesser amount towards loss of consortium which in present case should be granted to both parents individually being consortium under head of filial consortium. He would further submit that learned Tribunal erred in granting compensation under other heads on lower side.

3.2 Upon above submissions, he would submit to allow this appeal.

Submissions of respondent :

4. Whereas learned advocate Mr.Sunil Parikh appearing for the Insurance Company submitted that the income tax return of year 1999-2000 is filed subsequent to the death of the deceased. Hence, income stated in said income tax return cannot be treated as base or multiplicand for the purpose of deciding loss of future income and loss of future prospects. He would submit that in case of National Insurance Company Limited vs. Pranay Sethi – 2017 (16) SCC 680, the Hon’ble Supreme Court had clarified that Court should take actual income of the deceased at the time of death and departure is permissible only in rare and exceptional case involving special circumstances. He would submit that in the present case the claimants have failed to produce any evidence which permits