1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1675 OF 1996 Smt.Sarita Lalit Prindavankar & Ors. .. Appellants versus Ramnayak T. Dubey & Anr. .. Respondents Mr.S.M.Railkar for the appellants. Mr.Mohan P. Tekavde a/w Mr.Pramod Sonawane & Ms.Jayshree Gade for respondent No.2. CORAM : A.S.OKA, J. DATE : 4th December 2009. JUDGMENT: . Heard learned counsel appearing for the appellants. The appellants are the original claimants in a claim petition filed under section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the said Act). They filed a claim on account of death of one Lalit who died in a motor accident on 16th December 1989. The 1st appellant is widow of the deceased. The 2nd to 4th appellants are the children of the deceased and 5th appellant is the mother of the deceased. 2. The case made out in the claim petition was that a truck owned by the 1st respondent was involved in the accident. The said truck was insured with the 2nd respondent-insurer. It is alleged that the said truck was stranded on 2 Agra-Bombay road as the tyres and tubes of the truck had burst. The truck was loaded with steel angles which were protruding outside the body of truck by 2 to 3 feet. The deceased was a pillion rider on a moped driven by one Ramdas. The deceased died as a result of the accident. The case is that the moped on which the deceased was sitting as a pillion rider dashed against the stationery truck. The finding recorded by the Tribunal is that both the driver of the truck and the person who was plying the moped were guilty of negligence. The contribution of the person plying the moped was held to be 60%. The Tribunal came to the conclusion that total compensation payable to the appellants was Rs.2,07,000/-. After deducting 60%, the compensation was quantified at Rs.82,800/- together with interest thereon at the rate of 9% per annum from the date of filing of the claim petition till realisation. 3. The learned counsel appearing for the appellants submitted that the Tribunal committed an error by holding that the person who was plying the moped has contributed to the accident to the extent of 60%. He submitted that the entire negligence was of the owner and driver of the truck as the steel angles were protruding outside the body of the truck and there was no danger signal or red lamp displayed on the rear side of the truck. He submitted that entire negligence was that of the driver of the truck. He placed reliance on a decision of the Apex Court in the case of Sarla Verma (Smt) & Ors Vs. Delhi Transport Corporation and Anr. [(2009) 6 Supreme 3 Court Cases 121] and submitted that the multiplier and multiplicand will have to be enhanced. The learned counsel appearing for the 2nd respondent supported the impugned judgment and award. He submitted that the Tribunal was justified in holding that the person who was plying the moped contributed to the accident of the extent of 60%. He submitted that the compensation awarded by the Tribunal is just and proper and no interference is called for. 4. I have given careful consideration to the submissions. As far as actual incident is concerned, the appellants have not examined any witness. Only a panch witness who is a signatory to the scene of offence of panchnama has been examined. All that he has stated is that moped was lying on the rear side of the truck. The panch witness stated that the width of the main tar road was 22 ft and there were strips of rough road having width of 5 ft on either side. The witness stated that there were street lights at the place of the accident. 5. The learned Member of the Tribunal noted that there was no signal displayed on the rear side of the truck through the steel angles were protruding outside of the body of the truck to the extent of 2 to 2 ½ ft. On the other hand the learned Member of the Tribunal came to the conclusion that the person who was driving the moped could have avoided the accident in 4 as much as there were street lights at the place of the accident and there was sufficient place available to pass through the road. The learned Judge noted that the truck had to be haulted as a result of bursting of a tyre and tube and therefore, the driver of the truck was helpless. Considering these aspects the contribution of the driver of the truck to the accident is rightly held to be only 40%. Considering the evidence and material on record, the person who was on the driver’s seat of moped could have avoided the accident. Therefore, the finding of the Tribunal on the issue of the negligence is consistent with the evidence. 6. Now coming to the quantum of compensation, the finding recorded by the Tribunal is that the salary of the deceased was Rs.1562.50/- and age of the deceased was 32 years at the time of accident. By taking dependency at Rs.1,000/- per month, the Tribunal applied multiplier of 16. 7. Now the law on the point has been crystalised in form of decision of the Apex Court in the case of Sarla Verma (supra). The Apex Court considered the law on the subject of applicability multiplicand and multiplier. The Apex Court held that in case of a deceased having a permanent job who was below age of 40 years, addition of the 50% to the actual income is required to be made on account of future prospects of increase in the earnings. In the present case, the deceased was having permanent job in a limited company and therefore for the purposes of calculating multiplicand, 5 addition of the 50% of the actual salary will have to be made. Thus, by adding a sum of Rs.780/-, the total income comes to approximately Rs. 2340/- per month. 8. As far as deduction on account of personal expenditure of the deceased is concerned, the Apex Court in the aforesaid decision held that where number of dependent family members of the deceased are between 4 to 6 , 1/4th of the income will have to be treated as the amount required for personal expenditure of the deceased. In the facts of the case, the widow, three children and mother of the deceased are dependents. Therefore, 1/4th of the amount will have to be deducted which is equivalent to Rs.585/-. Thus, after deducting the said amount, the monthly dependency comes to Rs.1755/-. In the case of Sarla Verma (supra), the Apex Court applied multiplier of 16 for the age group of 31 to 35 years. Applying the multiplier of 16, the total compensation amount comes to Rs.3,36,916/-. The deduction of 60% equivalent to Rs.1,34,784/- will have to be made. To the balance amount, a sum of Rs.15,000/- will have to be added as usual amount. After deducting the total amount awarded under the impugned award of Rs. 82,800/-, the balance amount payable comes to Rs.66,984/-. This amount will have to be paid as additional compensation to the appellants. 9. The claim petition is of the year 1990. The rates of interest on deposits of the nationalised bank have gone down since then. Therefore, on 6 the additional amount, interest at the rate of 7.5% per annum will have to be awarded. Hence, the appeal must succeed in part and following order is passed: : O R D E R : (a) In addition to the compensation awarded under the impugned judgment and award, the respondents shall pay additional compensation of Rs.66,984/- together with interest thereon at the rate of 7.5% per annum from the date of institution of the claim petition till realisation or deposit of the amount with the Tribunal. (b) The respondents shall pay proportionate costs of this appeal to the appellants. (c) The 2nd respondent is granted time of four months to comply with this direction by depositing the additional amount with the Tribunal. (d) After the additional amount is deposited, the Tribunal will pass appropriate order as regards disbursement/withdrawal of the said amount after hearing the parties. (e) The appeal is partly allowed in above terms. (A.S.OKA,J)