* 1 * F.A. 1322.2010 28.3.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1322 OF 2010 ALONGWITH CIVIL APPLICATION NO. 3427 OF 2010 [FOR STAY] IN FIRST APPEAL NO. 1322 OF 2010 ICICI Lombard General Insurance Co. Ltd .......Appellant V/S. Smt. Savita Dattatray Patil & Ors. .........Respondents * * * * * * Mr. Rahul Mehta i/by. KMC Legal Venture, Advocate for the appellant. Mr. A.M. Kulkarni, Advocate for respondents no.1 to 4. Mr. Manoj Patil, Advocate for respondent no.6. Coram : Smt. R.P. SondurBaldota, J. 28 March, 2011. P.C. : 1. This appeal is by the Insurance Company to challenge the judgment and order dated 17th April, 2010 passed by the Motor * 2 * F.A. 1322.2010 28.3.2011 Accidents Claim Tribunal, Kolhapur allowing the claim for compensation by respondents no.1 to 4 on account of death of Dattatray Patil in an accident involving a motor car owned by respondent no.5. Respondent no.6 was driving the motor vehicle at the time of the accident. The challenge of the appellant to the impugned judgment and award is two­fold. Firstly, the appellant disputes involvement of the motor vehicle owned by respondent no.5 in the accident. Secondly, it contends that the quantum of the compensation awarded to respondents no.1 to 4 is excessive. 2. Since at the time of the trial, respondent no.5­the owner had appeared before the Tribunal to contest the claim petition and had also participated in the trial by leading evidence, it is not open for the insurance company to raise any challenge based on the merits of the case. Any challenge available to the appellant­insurance company would be limited to statutory defence available under Section 149(2) of the Motor Vehicles Act. There is no such statutory defence claimed by the appellant. Hence, the appeal is liable to be dismissed as not maintainable without going into merits of the challenge. 3. In any case, as has been pointed out by the learned counsel for respondents no.1 to 4 there was sufficient evidence before the Court to * 3 * F.A. 1322.2010 28.3.2011 show involvement of the car owned by respondent no.5 in the accident. There is direct evidence of the statement of respondent no.6­the driver (Exhibit­17) wherein the driver states in terms that after hitting the scooter he was scared and had sped away from the place of the accident. As regards the quantum of compensation is to the addition of 30% of the salary for future prospects to the extent of Rs.4,21,583/­. This addition has been done by the Tribunal in view of the decision of the Apex Court in the case of Smt. Sarla Verma & Ors. V/S. Delhi Transport Corporation & anr. reported in (2009) 6 SCC page 121. Mr. Mehta, the learned counsel for the appellant, submits that for applying the principle of law laid down in the case of Sarla Verma (supra), it was necessary for respondents no.1 to 4 to lead specific evidence as regards the future prospects. He submits that since there was no evidence led by the claimants, the Court could not have taken into consideration any amount towards future prospects. As per the evidence produced before the Court, the gross monthly salary of the deceased, Dattatray was Rs.13,653/­. After the statutory deductions, the net salary was Rs.11,153/­. Deceased Dattatray was working as an Electrician Teacher at Government ITI, Karnataka, Tal­Karnala, Dist­ Solapur earning gross salary of Rs.13,653/­ per month. Respondents * 4 * F.A. 1322.2010 28.3.2011 no.1 to 4 examined P.W.2­the Craft Instructor posted at Government ITI, Karnala in order to establish the income of deceased Dattatray. The salary register (Exhibit­47) produced by P.W.2 showed that after the statutory deductions, the net salary of Dattatray at the time of his death was Rs.11,153/­. He further deposed that as per the recommendations of the 6th Pay Commission, the salary of deceased Dattatray would have been revised with effect from 1st January, 2009 and would have been fixed at Rs.30,000/­ per month. It was contended on behalf of respondents no.1 to 4 that this salary as per the revised scale should be taken into consideration for calculation of the compensation payable to them. The Tribunal rightly rejected the argument holding that the income of the deceased as on the date of the accident is required to be taken into consideration. However, the Tribunal has taken into account this fact of the acceptance of 6th Pay Commission by the Government for granting 30% increase in the salary for future prospects. Since application of 6th Pay Commission to all the Government servants by acceptance of the recommendations of the Commission by the Government, was a fact of certainty and had Dattatray outlived the accident, he would have certainly received the benefits therefrom, the Tribunal has rightly granted addition of 30% of * 5 * F.A. 1322.2010 28.3.2011 the salary for future prospects. There was no need for respondents no. 1 to 4 to lead any further additional evidence on this aspect. 4. Perusal of the impugned judgment and order shows that the learned Member of the Tribunal has considered every aspect of the claim petition in detail and arrived at a just and reasonable compensation payable to respondents no.1 to 4. There is no substance whatsoever in the challenge to the judgment and Award. Hence, the Appeal is dismissed. 5. In view of dismissal of the Appeal, the Civil Application taken out for stay does not survive. The same is accordingly disposed off. [Smt. R.P. SondurBaldota, J]