1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO. 424 OF 2009 1. Pushpabai W/o Dattarao Chapkae Age : 40 years, Occ : Nil, R/o Katneshwar, Tq.Purna, Dist. Parbhani. 2. Shila D/o Dattarao Chapkae Age : 22 years, Occ : Nil, R/o As above. 3. Gopal S/o Dattarao Chapkae Age : 20 years, Occ : Education, R/o As above. 4. Namdeo S/o Dattarao Chapkae Age : 17 years, Occ : Education, R/o As above. U/g of his real mother Appellant no.1. 5. Chandrabhagabai W/o Deorao Chapkae Age : 56 years, Occ : Nil, R/o As above. Appellants V/s 1. Mr. H.R. Ramchandra S/o Rangegowda Age : 45 years, Occ : Business, R/o Kadlur, Tq. Alur, Dist.Hasana (Karnataka). 2. The Oriental Insurance Co., Ltd., Through its Branch Manager, “Daulat Building”, Shivaji Chowk, Parbhani. Respondents 2 ------------------------------------------------------------------------------------------------------- Mr. S.S. Rathi, the Advocate for appellant. Mr. A.S. Deshpande, Advocate for Respondent no.2. ------------------------------------------------------------------------------------------------------ (CORAM : R.K. DESHPANDE, J.) DATE : 12th October, 2009. ORAL JUDGMENT : 1. Heard Shri.S.S. Rathi, the learned Counsel appearing for the appellant. This appeal challenges the judgment and award dated 15th October, 2008 passed by the learned Member, Motor Accident Claims Tribunal/District Judge-3, Parbhani in M.A.C.P. No.303/2006 granting compensation of Rs.3,79,000/- to the appellant including the amount of no fault liability of Rs.50,000/- with interest at the rate of 9% p.a. from the date of Petition till its realisation. The appellants, who are the claimants seek enhancement of compensation. 2. The notices in this appeal were issued on 21.04.2009 and the Record and Proceedings were also called. The parties were put to the notice, that the matter shall be decided finally at the stage of admission. Heard. Admit. Shri.A.S. Deshpande, the learned Counsel for the respondent no.2 waived service of notice. The respondent no.1, although served, none appears for the respondent no.1. By consent of parties, heard the matter finally. 3. The main ground of challenge in this appeal is that the 3 Tribunal has determined an amount of notional income of the deceased at Rs.15,000/- p.a. in accordance with Second Schedule under section 163-A of the Motor Vehicles Act, 1988. Shri.S.S. Rathi, the learned Counsel appearing for the appellant states that the Tribunal should have determined the yearly income of the deceased at Rs.30,000/- and relied upon the decision of the Apex Court reported in 2008 (2) T.A.C. 398 (S.C.) (Laxmi Devi and others V/s Mohammad Tabbar and another). 4. Shri.A.S. Deshpande, the learned Counsel appearing for the respondent no.2 insurance company states that the Tribunal has determined an amount in accordance with the provisions of Second Schedule framed under section 163-A of the Motor Vehicles Act, 1988 and hence, award of the Tribunal can not, therefore, be faulted with. According to the learned Counsel, unless the provision made in the Second Schedule is amended, the Tribunal can not grant compensation over and about Rs. 15,000/- p.a. by way of notional income. 5. The question of grant of compensation is governed by the provisions of section 168 of the Motor Vehicles Act, 1988, which empowers the Tribunal to make award of compensation, which appears to it just and proper. The said provision no where put any restrictions upon the power of the Tribunal to determine the just amount of compensation. It is now well 4 settled that the provision of Second Schedule framed under section 163-A of the Motor Vehicles Act, is in the nature of guidelines and the provision of notional income to the extent of Rs.15,000/- was introduced in the year 1994. The same can not constitute the guidelines for determining the notional income in the year 2006. Similarly, the said provision can not encroach upon the power of the Tribunal to determine the just compensation under section 168 of the Motor Vehicles Act, 1988. The decision relied upon by the learned Counsel in Laxmi Devi’s Case cited supra clearly supports the case of the appellant for determination of income of the deceased on notional basis at Rs.30,000/- p.a. Hence, the appeal needs to be allowed. 6. The age of the deceased was determined as 40 years, which is not disputed by the respondent insurance company. The Tribunal has accordingly applied multiplicand of 16 as per the provision in Second Schedule. The same also can not be faulted. Shri.A.S. Deshpande, the learned Counsel appearing for the respondent no.2 states that the appellant no.3 has now become major and that aspect has to be taken into consideration by applying the multiplicand. In my view, the application of multiplicand in the present case will not depend upon the age of the claimants and it will depend upon the age of the deceased, which was higher. The contention therefore can not be accepted. In view of the 5 determination of notional income of the deceased at Rs.30,000/- per year, there shall be deduction to the extent of 1/3rd amount, which shall come to Rs.20,000/- p.a. and multiplier of 16 would determine, the loss of dependency at Rs.3,20,000/-, which the claimants should be entitled to get. In addition to this, other entitlements determined by the Tribunal, shall remain intact. The Tribunal has granted Rs.15,000/- towards love and affection and consortium, Rs.10,000/-, towards love and affection to the appellant nos.2 to 5 and Rs.10,000/-, towards transportation of the body and Rs.4,000/- towards the funeral expenses. Thus total Rs.39,000/- is granted in addition to the amount of compensation. 7. In view of the above, the Judgment and award passed by the Tribunal on 15th October, 2008 in M.A.C.P. No.303/2006 shall stand modified as under:- (i) The respondent nos.1 and 2 shall jointly and severally pay Rs.3,20,000/- inclusive of no fault liability to the appellants-claimants within a period of two months along with interest at the rate of 9% p.a. from the date of petition till its realisation. (ii) The appellants-claimants shall be entitled to further an 6 amount of Rs.39,000/- as was calculated by the Motor Accident Claims Tribunal. (iii) The learned Counsel appearing for the respondent no.2 insurance company has stated that the entire amount of Rs. 2,79,000/- along with interest and cost has been deposited by the insurance company before the Tribunal. (iv) The appellant shall be entitled to recover balance amount as per this order, jointly and severally from the respondent nos.1 and 2. (v) There shall be no order as to costs. (R.K. DESHPANDE) JUDGE GAS/fa424.09