1 FA1397.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION kj FIRST APPEAL NO.1397 OF 2010 WITH CIVIL APPLICATION NO.1276 OF 2010 The New India Assurance Co. Ltd., )..Appellant Vs Vanita Shyamrao Patil & Ors. )..Respondents ---- Mr.Vishwajit N. Sagare for the appellant. Mr.T.J.Mendon for the respondent nos.1 to 4. ---- Coram : A.S.OKA,J Date : 27.10. 2010. PC 1 Heard learned Advocate for the appellant and the learned Advocate for respondent nos.1 to 4 who are original claimants. The challenge by the appellant is to the judgment and award passed by the learned Member of the Motor Accident Claims Tribunal in a claim petition under Section 166 of the Motor Vehicles Act, 1988. The compensation has been claimed on 2 FA1397.10.sxw account of death of one Mr.Shyamrao in a motor accident on 17.8.2003. 1st respondent is the widow of the deceased, 2nd respondent is a mother of the deceased and 3rd and 4th respondents are minor children of the deceased. The Tribunal has awarded compensation of Rs.4,32,000/- with interest thereon at the rate of Rs.7.5% per annum. 2 The only challenge in this appeal is on the ground that quantum of compensation is excessive. The learned Advocate for the appellant submitted that this is a case where there is no evidence adduced as regards the actual income of the deceased. He submitted that except for production of identity-card issued by the Hawkers’ Association, there is no evidence to show that the deceased was carrying on business as a hawker. He, therefore, submitted that income of Rs.3500/- taken by the Tribunal is on the higher side. He submitted that at the most, notional income of a sum of Rs.2000/- or Rs.2500/- per month could have been taken. His submission is that as the income taken is excessive, the compensation amount will have to be brought down. The learned 3 FA1397.10.sxw Advocate for the respondent nos.1 to 4 placed reliance on the decision of the Apex Court in the case of National Insurance Co. Ltd., Vs. Khimlibai and Ors. (2009 ACJ 2648). He submitted that Apex Court in the said case has taken notional income of a deceased working as a carpenter as of the year 1997 at Rs.100/- per day. He submitted that the evidence on record shows that the deceased was carrying on hawking business in Zaveri Bazar area of Mumbai and therefore, income taken by the Tribunal is reasonable. 2 After careful consideration of the submissions, I find that there is no serious challenge to the fact that deceased was carrying on business as a hawker. The challenge is merely on the ground that there is no evidence regarding income of the deceased. What is brought on record is that deceased was carrying on business as a hawker by selling eatables in a prominent business locality like Zaveri Bazar at Mumbai. The Apex Court in the case of National Insurance Company (supra) was dealing with a case where a carpenter had died in the year 1997 and there was no specific evidence of income earned by the carpenter. By taking a note of 4 FA1397.10.sxw the admitted position that deceased was working as a carpenter, the income of the deceased was taken Rs.100/- per day in the year 1997. In the present case, we are dealing with an accident of the year 2003. The death is caused of a person carrying on business as a hawker in a locality like Zaveri Bazar in Mumbai. Therefore, average income of the deceased can be safely taken as Rs.100 per day. Following the decision of the Apex Court in the case of Sarla Verma & Ors. Vs. Delhi Transport & Anr. (2009 (6) SCC 121), 1/4th deduction will have to be made on account of personal expenditure of the deceased as there were four dependants on the deceased. After making 1/4th deduction, the annual dependency will come to Rs.27,000. The Tribunal had applied multiplier of 15. If multiplier of 15 is applied, the compensation will be Rs. 4,05,000/-. In the present case, compensation of Rs.4,32,000/- has been granted including a reasonable amount towards funeral expenses, loss of consortium etc. The sum of Rs.4,32,000/- fixed by the Tribunal is a reasonable compensation and no interference is called for. 5 FA1397.10.sxw 3 Hence there is no merit in the appeal and the same is accordingly dismissed with no order as to costs. 4 The appellant will be entitled to withdraw sum of Rs. 25,000/- deposited in this Court together with interest if any, accrued thereon . (JUDGE) 6 FA1397.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION kj CIVIL APPLICATION NO.1276 OF 2010 IN FIRST APPEAL NO.1397 OF 2010 The New India Assurance Co. Ltd., )..Appellant Vs Vanita Shyamrao Patil & Ors. )..Respondents ---- Mr.Vishwajit N. Sagare for the appellant. Mr.T.J.Mendadkar for the respondent nos.1 to 4. ---- Coram : A.S.OKA,J Date : 27.10. 2010. PC 1 In view of dismissal of main appeal, this Civil Application does not survive and stands disposed of accordingly. (JUDGE)