1 F.A. No. 637 of 2000 hvn IN THE HIGH COURT OF JUDICAUTRE AT BOMBAY CIVIL APPELALTE JURISDICTION FIRST APPEAL NO. 637 OF 2000 James Lacerda & Anr. ... Appellants Versus New India Assurance Company Ltd. and Ors. ... Respondents Mr. S. Joshi holding for Mr. S.M. Oak, Advocate for the appellants. Mr. S.R. Singh, Advocate for respondent no. 1. CORAM : SMT.R.P. SONDURBALDOTA, J. DATED : APRIL 08, 2011 P.C. 1. This appeal is by the original claimants for enhancement of the compensation awarded by the judgment and award passed on 31st January, 2000 by the M.A.C.T. Mumbai on account of death of one James Lacera Estaquie Imaculada Caetano Lacerda. Appellant no. 1 is original applicant no. 1, brother of the deceased. Appellant no. 2 is his mother. Original applicant no. 3 sister of the deceased has not joined the appellants in the present appeal. By the impugned judgment and award, the Tribunal held that appellant no. 1 and original applicant no. 3 were not dependents 2 F.A. No. 637 of 2000 of the deceased and hence, not entitled to receive compensation. It awarded compensation to appellant no. 2 alone. 2. The brief facts required to be stated are that James was working as a general steward on a foreign ship and earning 1936.36 $ per month. On 17th September, 1993, he had gone to see his sister at Chira Bazar. In the night he was returning to Railway station along with his mother. As he and his mother were walking down to catch a taxi by car bearing registration No. MH 05 8717 belonging to respondent no. 2 came from behind and knocked him down. He was declared dead when brought to St. George Hospital. The appellants and original applicant no. 3 filed application claiming compensation of Rs.12 lacs. from the respondents on account of the accidental death of James. 3. The oral evidence led by the appellants consists of evidence of appellant no. 2 and the documentary evidence consists of certified copy of the decree of divorce of James (Exh.9), certificate of his birth (Exh. 14), memorandum of postmortem examination (Exh. 15) and certified copy of the judgment and 3 F.A. No. 637 of 2000 order in the criminal proceedings relating to the accident (Exh. 16). Based on the evidence produced before the court, the learned tribunal awarded compensation in the sum of Rs.3,10,000/- to appellant no. 2 inclusive of amount of Rs.25,000/- towards NFL and interest at the rate of 12% p.a. from the date of the application till recovery of the amount. 4. The challenge of the appellant to the impugned judgment and order is twofold firstly that denial of compensation to appellant no.1 was not correct and secondly, that the quantum of compensation awarded is too meager and cannot be said to be just and reasonable. 5. As regards the first ground of challenge to the appeal, there cannot be any substance therein because on the date of filing of the claim petition, applicant no. 1 was 43 years old. The learned tribunal has noted that on the date of recording of the evidence he was 50 years and he had been working as cashier on the salary of Rs.2,000/- per month. It was however, claimed by appellant no. 2 that 5 years prior to giving of his evidence, he 4 F.A. No. 637 of 2000 had been unemployed. The tribunal found that there was no proof that he was dismissed from service as cashier. The tribunal opined that appellant no. 1 who was working as cashier could not be said to be dependent upon the deceased. No infirmity can be found with this reasoning of the tribunal. 6. As regards the quantum of compensation awarded to the appellants, also, I find that the learned Member of the tribunal has taken correct and reasonable view of the matter, on the background of there being no evidence produced by the applicants. The discussion as regards computation of compensation at para 8 of the impugned judgment reads as follows : "..................... Mr. Martin had argued that when it is not disputed that the deceased was working as a seaman it is common knowledge that such seaman earn a considerable large amount that an average worker or labourer. I agree. However, we have to take a fair estimate of the earning of such seaman and we also cannot forget that these Seaman serve on a ship for a 5 F.A. No. 637 of 2000 period of 9 months in a year and giving them a break in services of three months they get employment not on the same ship but on some other ship. This is seen from the continuous discharge certificate produced by the applicants and it is on record. Considering these aspects, it can be fairly estimated that the deceased was earning Rs.6000/- per month or Rs.72,000/- per year......." 7. Mr. Joshi, the learned counsel for the appellant submits that there is no basis for the earning of Rs.6,000/- per month taken by the tribunal in the impugned judgment and award. He draws my attention to the salary slips issued to James by the Master of the ship of Ugland Maritime Services Pvt. Ltd. with whom the deceased was working. There are salary slips for 9 months for the appellants. The record reveals that these slips were produced by the appellants after closure of their evidence. Though the appellants sought leave to produce the documents there was no application by them to lead further evidence to prove the 6 F.A. No. 637 of 2000 documents. Since the documents had not been admitted by the respondents, it is necessary for the applicants to prove the same. In the absence of proof thereof, the tribunal could not have been taken same into consideration while calculating the average earning of the deceased at the time of accident. The tribunal has therefore, on rough estimate taken Rs. 6000/- as earning per month of the deceased and calculated the compensation payable by taking multiplier of 8 depending upon the age of the appellant no. 2. The approach taken by the tribunal is correct and reasonable approach. Therefore, there cannot be any revision of the amount of compensation awarded. Hence appeal is dismissed. (SMT. R.P. SONDURBALDUTA,J.)