POINT DECIDED
It is a case not one under Section 163A of the Act and in this case, negligence on the part of the driver of the offending vehicle has been established. It is true that under 1988 Act, multiplier of 5 is applied in case of death of a person, aged 68 years, but it cannot be lost sight of the fact that in a proceeding under Section 163A of the Act claimants are not required to prove negligence. Thus, in a case where claimants have proved negligence on the part of the driver of the offending vehicle, there was no justification applying the multiplier of 5 in case of death of a person aged 68 years.

Hon'ble BHATTACHARYA, Actg. C.J.—This appeal is at the instance of the owner of an offending vehicle and is directed against the order dated 27th July, 1994, passed by the Motor Accident Claims Tribunal No.2 [Aux.] Ahmedabad in Motor Accident claim Petition No. 311 of 1987 thereby disposing of the said claim application by awarding compensation of Rs.1,91,400/- with proportionate costs and interest at 12% per annum from the date of filing of the said application till actual deposit of the amount before the Tribunal.

2. Being dissatisfied, the owner of the offending vehicle has come up with the present appeal.

3. There is no dispute that the victim met with a fatal accident on 16th April 1987 at 7.00 in the morning while he was going to have darshan at Swaminarayan temple. The deceased was going on his scooter from his house. When he reached Raipur cross-roads at about 6.50 a.m. at that time the public transport bus owned by the appellant came from Sarangpur side. According to the claimant, the bus was being driven at excessive speed at the cross-roads and had not blown the horn and was completely unmindful towards the traffic on the road, as a result, it dashed front left portion of the bumper with the scooter of the deceased resulting in severe injuries on the head and other parts of the body. The victim was immediately taken to the local hospital by the conductor of the said bus. However, within few hours, he succumbed to the injuries.

4. It has been established from the evidence on the record that the victim was aged 68 years at the time of death and had business of silver and gold in the name of M/s. Shanjibhai Dahyabhai, a partnership firm and was also looking after another firm in the name of Mukeshkumar Nitinkumar & Company. According to the claimants, the victim used to attend the first firm in the morning and the second firm in the afternoon. It further appears from the income-tax return of the victim that his annual income from the aforesaid two businesses was about Rs.44,000/-.

5. The Tribunal below, on consideration of the entire material on record, came to the conclusion that in the said accident there was 15% contributory negligence of the victim and thus, reduced the compensation assessed by it at 15% after applying multiplier of 7 on the basis of the proved income of the victim. Ultimately, the amount came to Rs.1,91,400/-.

6. Mr H.S. Munshaw, learned advocate appearing on behalf of the appellants laboriously contended before me that the learned Tribunal below should have held from the material on record that there was at least 25% negligence of the victim and, at the same time, the Tribunal below further committed an error of law by applying multiplier of 7 in a case where the victim was aged 68 years. Mr Munshaw prays for reducing the amount by 10% on account of contributory negligence and prays for adopting multiplier of 5, as provided in the Second Schedule of the Motor Vehicles Act, 1988.

7. Mr Munshaw also prayed for reducing the rate of interest awarded by the Tribunal.

8. Mr Chintan Champaneri, learned advocate appearing on behalf of the claimants, on the other hand, supports the ultimate conclusion arrived at by the Tribunal and contended that there was no justification on the part of the Tribunal below in holding that the victim had contributed negligence in the said accident. Mr Champaneri, thus, prayed for dismissal of the appeal.

9. After hearing the learned counsel for the parties, and after going through the material on record, it appears that there is no dispute as regards the accident resulting in death of the victim. PW-2, the only eye-witness, has deposed that the accident occurred in his presence and that the driver of the bus was negligently driving the bus with high speed. It further appears that the accident occurred in early morning and it is rightly held by the Tribunal that due to excessive speed of the bus, he could not stop the vehicle, though the road was otherwise clear. In such circumstan

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