SRJ 1 fa-100-1995.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.100 OF 1995 1. Smt. Lata Shankar Jejurkar ) age 22 years, Occ: Household, ) 2. Kum.Navnath Shankar Jejurkar ) Minor  3 years. ) 3. Kum.Sangeeta Shankar Jejurkar ) age 9 years. ) Nos. 2 and 3 minor by guardian ) Mother No.1. ) 4. Smt. Vithabai Baburao Jejurkar ) age 50 years, Occ: Household. ) All residents of  near Amrutdham ) Bombay Arra Road, Panchavati, ) Nashik. ) .. Appellants. V/s. 1. Mohansing Thakursing ) Adult, Occ: Driver ) 2. Shri Narinder Singh ) Age Adult, Occ: Transport ) both R/O. 126, M.G.Road, Calcutta. ) 3. The New India Assurance Co. Ltd. ) Chittaranjan Avenue, Calcutta 700007 ) .. Respondents. Mr. R. M.Haridas i/b. Mr. P.N. Joshi, for Appellant. CORAM :A.S.OKA,J. DATE :12th APRIL,2010 JUDGMENT:- 1] Heard learned Counsel appearing for the Appellant. None appears for the 3rd Respondent, though notice is duly served. SRJ 2 fa-100-1995.sxw 2] This is an appeal preferred by the Original Claimants in a Claim Petition filed under section 166 of the Motor Vehicles Act, 1988. The Appellant/Claimants filed a Claim Petition claiming compensation on account of death of one Shankar in a motor accident. The deceased Shankar was a pillion rider on the motor cycle driven by one Alkesh Patil. The case is made out by the Claimants is that when they were proceeding towards Nasik, a truck which was driven by 1st Respondent and which was owned by 2nd Respondent came from the opposite directions in a rash and negligent manner and gave a dash to the motorcycle. At the relevant time the truck was insured with the Appellant. Both Shankar and Alkesh died due to the accident. 3] The Claim Petition was contested only by the 3rd Respondent, the insurer of the truck. The 3rd Respondent did not dispute the insurance, but contended that the cause of the accident was the rash and negligent driving of the motorcycle by the said Alkesh Patil. The Tribunal found that the accident took place due to the rash and negligent driving on the part of the driver of the truck as well as the said Alkesh Patil. The Learned Member of the Tribunal held that Appellants were entitled to compensation of Rs.1,92,000/-. To the said amount a sum of Rs.18,000/- was added towards funeral expenses, loss of consortium etc. Thus it was held that the Appellants were entitled to total compensation of Rs.2,10,000/-. As contribution of the 1st Respondent (driver of the truck) SRJ 3 fa-100-1995.sxw to the accident was held to be only 50%, the compensation of Rs.1,05,000/- was granted to the Appellant with interest @ 12% p.a. from the date of filing of the Claim Petition till the date of the deposit. 4] The learned Counsel appearing for the Appellants submitted that the evidence on record does not support the findings that there was any negligence on the part of the said Alkesh Patil. He submitted that evidence on record shows that the entire negligence was on the part of the 1st Respondent. He, therefore, submitted that the deduction of 50% made by the Tribunal could not have been made, as there is no negligence proved against the said Alkesh Patil. He submitted that the dependency taken by the Tribunal at the rate of Rs.1,000/- per month is on the lower side. 5] I have given careful consideration to the submissions. It must be noted here that no evidence was adduced by the Appellants on the aspect of negligence by examining any eye-witness. Similarly, there was no evidence adduced by Respondents. Therefore, Learned Member of the Tribunal has considered the certified copy of Panchnama at Exhibit 35 and the description of the spot of accident reflected in the Panchanama. Considering the spot of impact shown in the Panchnama, the Learned Member of the Tribunal held that the motorcycle must have deviated slightly towards its right hand side. In fact, the Panchanama shows that the motorcycle was not on its proper side. Negligence has been attributed to the 1st Respondent SRJ 4 fa-100-1995.sxw on the ground that the impact was so severe that the motorcycle was thrown away at a distance of 20 feet. Thus it was held that the driver of the truck must be driving the vehicle in a very high speed. That is how the Tribunal found that the deceased Alkesh Patil and the 1st Respondent have equally contributed to the accident. 6] Thus, on this aspect, it not possible to find fault with the Tribunal. Apart from this, the Appeal already stands dismissed against 2nd Respondent who is the owner of the truck. It must be noted here that for recording a finding that the entire negligence was on the part of the driver of the 2nd Respondent, the presence of 2nd Respondent before this Court will be necessary. 7] However, the claim for enhancement is concerned, the same will have to considered on merits as 3rd Respondent has accepted the liability to indemnify the 2nd Respondent. The 3rd Respondent had accepted in the written statement that the offending truck was validly insured with it on the date of the accident. I find that the 2nd Respondent did not appear before the Tribunal and did not contest the claim. The only contest was by the 3rd Respondent. Therefore, in view of the decision of this Court dated 23rd January, 2008 in First Appeal No.673 of 1993 (Bismilla Abdul Ansari and Others v/s Kishor Kumar Shah & Others), the Appeal is maintainable for considering the claim for enhancement. 8] The Claim Petition has been filed by the 1st Appellant who is the widow of the deceased. 2nd and 3rd SRJ 5 fa-100-1995.sxw Appellants are the minor children of the deceased. The 4th Appellant is mother of the deceased. The widow came out with the case in the evidence that the deceased was the owner of a tempo and he was getting Rs.1500/- per day from his transport business. However, no documentary evidence of income of the deceased was produced on record. In the cross examination, the widow admitted that her deceased husband was not maintaining an account with any bank and he was not maintaining accounts of his business. However, a suggestion was given in her cross examination by the Advocate for the 3rd Respondent that the income of the deceased was Rs.1,000/- to Rs.2,000/- per month. The age of the deceased at the time of accident was 28 years. The case made out by the 1st Appellant in her examination in chief was that the deceased purchased a tempo for carrying on transport business. In the cross examination, there is no serious challenge to the said case. In view of the suggestions given by the 1st Appellants in the cross examination that the income of the deceased was Rs.1,000/- to Rs.2,000/- per month, the income of the deceased can be reasonably taken at Rs.2,000/- per month. The age of the deceased was only 28 years. Considering the fact that he was having a tempo, there were some prospects of increase in the income in future. Therefore, going by the case made out by the 3rd Respondent, the income of the deceased ought to have been taken at Rs.2,000/- per month. SRJ 6 fa-100-1995.sxw 9] In view of the decision of the Apex Court in the case of Sarla Varma & Others vs. Delhi Transport and Authorities [2009-6-SCC-121], 1/3rd of the income will have to be deducted on account of personal expenses of the deceased. After deducting 1/3rd income, monthly dependency will be approximately of Rs.1330/- and the yearly dependency will be of Rs.15,960/-. Since age of the deceased was 28 years, in view of the aforesaid decision of Apex Court in the case of Sarla Varma (supra) the multiplier will have to be taken as 17. Applying the said multiplier, the total amount comes to Rs.2,71,320/-. The Tribunal granted a sum of Rs.18,000/- on account of funeral expenses etc.. Therefore, the total amount of compensation will be Rs.2,89,320/-. The liability of the 2nd Respondent is to the extent of 50% of the said amount. Therefore, total compensation payable will be Rs. 1,44,660/- which can be rounded off to Rs.1,45,000 /-. The Tribunal has granted compensation of Rs.1,05,000/-. Thus, the Appellants are entitled to additional compensation of Rs.40,000/-. The impugned award has been passed in the year 1994 on the basis of the Claim Petition filed in the year 1991. Interest @ 12% p.a. has been awarded by the Tribunal. However, rates of interest on fixed deposits of the nationalized banks have considerably gone down since then. Therefore, the interest on the enhanced amount will have to be fixed @ 9% per month. SRJ 7 fa-100-1995.sxw 10] Hence, I pass following order:- (i) In addition to compensation awarded under the impugned award, the 2nd and 3rd Respondents shall pay additional compensation of Rs.40,000/-to the Appellants with interest thereon @ 9% p.a. from the date of filing of the Claim Petition till realization or deposit of the amount with the Tribunal. (ii) Time of four months is granted to the 3rd Respondent to deposit the enhanced amount with the Tribunal; (iii) The Appellant shall be entitled to proportionate costs of this Appeal from the 3rd Respondent. (iv) Appeal is partly allowed in the above terms. (A.S.OKA,J.)