JUDGMENT :

[1.] The present appeal is filed at the instance of the original claimant under Section 173 of the Motor Vehicles Act, 1988 (hereinafter to be referred as “Act of 1988”), being aggrieved and dissatisfied with the judgment and award dated 19.01.2015 (hereinafter to be referred as “impugned judgment and award”) passed by the Motor Accident Claims Tribunal (Main), Surat, in M.A.C.P. No. 602 of 1997.

[1.1] By the said impugned judgment and award, the Tribunal has partly allowed the claim petition preferred by the original claimant under Section 166 of the Act of 1988, holding him entitled to recover amount of Rs.1,66,616/- as compensation with running interest at the rate of 9% per annum from the date of filing of the claim petition till its realization, along with proportionate costs, from the original opponents, jointly and severally. Hence, the present appeal, at the instance of the original claimant, praying for enhancement of the amount of compensation with interest and proportionate costs.

[2.] Considering the grounds raised in the appeal and the submissions made by the learned advocate for the appellant, this Court, vide order dated 09.06.2015, had admitted the appeal. The record suggests that the notice of admission of the appeal has been duly served upon respondent no. 1. Learned advocate Mr. Sunil B. Parikh has entered appearance on behalf of respondent no. 5- National Insurance Company Limited (hereinafter to be referred as “Insurance Company”). The fresh rule was issued upon the unserved respondent nos. 2 to 4 and, in the meanwhile, the record and proceedings were called for from the concerned Tribunal. It further transpires from the record that sufficient opportunity was given to the appellant to serve the unserved respondent nos. 2 to 4. In absence of the details of the correct addresses of the said respondents being provided as a last opportunity, this Court, vide order dated 02.11.2017, had adjourned the matter to 08.11.2017 to do the needful, failing which, the matter was directed to be dismissed for non-prosecution against the said unserved respondents. In absence of any details being furnished on record, the appeal has been dismissed for non-prosecution qua respondent nos. 2 to 4.

[3.] The appeal is taken up for hearing and has been heard finally with the assistance of the learned advocates on record for the respective parties.

[4.] Mr. Harshadray A. Dave, learned advocate for the appellant- original claimant, has assailed the impugned judgment and award mainly on the grounds raised in the appeal memo. It is submitted that the Tribunal committed error in confining the dependency loss for a period of 32 months by considering the fact that the claimant, who is the husband of the deceased, had remarried within a span of three years of the demise of the deceased. It is submitted that the Tribunal was bound to take into consideration the structural formula for the purpose of determination of just and fair amount of compensation, while awarding compensation under the head of loss of dependency. It is submitted that the Tribunal committed error in ignoring the Income Tax Returns of the last assessment year.

[4.1] It is submitted that merely because the Income Tax Returns had been filed subsequently after the date of the accident, could not be a reason for discarding the aforesaid evidence being brought on record. According to learned advocate, the Tribunal ought to have taken the last income instead of an average of four years' income for the purpose of determination of income of the deceased. It is further submitted that the Tribunal lost complete sight of the fact of awarding prospective income in the facts of the case, considering the age of the deceased being 38 years at the time of the accident, at least 30% rise towards future income was required to be considered for the purpose of determination of the loss of dependency.

[4.2] It is further pointed out that the deduction of one-half has been erroneously appl