: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1147 OF 1991 FIRST APPEAL NO.1147 OF 1991 FIRST APPEAL NO.1147 OF 1991 The New India Assurance Co. Ltd., ...Appellant V/s. Indubai Sahebrao Patil & Ors. ...Respondents Ms.Urmila K. Sanil, Advocate, for the Appellant. Mr.T.J. Mendon, Advocates, for Respondent Nos.1 to 7. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 20TH FEBRUARY, 2008. DATE : 20TH FEBRUARY, 2008. DATE : 20TH FEBRUARY, 2008. ORAL JUDGMENT :- ORAL JUDGMENT :- ORAL JUDGMENT :- 1. I have heard the submissions of the learned Advocates appearing for the parties. The appellant is the insurer of the vehicle involved in the accident. The challenge in this Appeal is to the Judgment and Award dated 10th September, 1991 passed by the learned Member of the Motor Accident Claims Tribunal, Raigad at Alibag in a Claim Petition filed by the respondent Nos.1 to 7 under Section 110-A of the Motor Vehicles Act, 1959. 2. According to the case of the 1st to 7th respondents, the accident occurred on 9th September, 1988. The deceased Sahebrao was employed as a Police Constable who was at the relevant time travelling in a : 2 : truck insured with the appellant at about 6:30 p.m. on the said day. The truck turned turtle as a result of which the said Sahebrao died on the spot. The Claim Petition was contested by the original opponent No.1 by contending that the truck was sold by him to one Himmatsingh and on the date of the accident, the said Himmatsingh was the owner. The appellant also contested the claim by contending that as a result of transfer, the appellant-Insurance Company was not liable. 3. The Tribunal held that the accident occurred due to negligence on the part of the driver of the truck. The Tribunal held the appellant responsible for satisfying the Award against the owner of the truck. Compensation of Rs.2,50,000/- was awarded to the 1st to 7th respondents with interest thereon at the rate of 12% p.a. 4. The first submission of the learned Advocate for the appellant is that on the date of the accident, the truck was already transferred by the insured without intimation to the appellant and, therefore, the appellant was not liable to satisfy the Award passed against the insured. The second contention is that there was a breach of terms and conditions of the : 3 : policy as in a goods vehicle, the deceased was travelling as a passenger. The third submission is that the income of the deceased taken by the Tribunal for calculating the multiplicand is extremely on the higher side and multiplier of 20 applied is exorbitant. 5. The submission of the learned Advocate for the 1st to 7th respondents is that in view of the decision of the Apex Court in the case of National Insurance Co. Ltd. V/s. Indira Srivastava & Ors. dated 12th December, 2007 [Civil Appeal No.5830 of 2007], gross emoluments payable to the deceased ought to have been considered. His submission is that while calculating the multiplicand, the prospects of increase in the salary of the deceased in future ought to have been taken into consideration as he was in police force and his service was protected by rules. It is submitted that considering the respective ages of the defendants, the multiplier of 20 adopted by the Trial Court is fully justified. 6. I have carefully considered the submissions. In sofar as first submission of the learned Advocate for the appellant is concerned, there was absolutely no evidence adduced on record to show that on the date : 4 : of the accident the 1st opponent had already transferred the vehicle. In fact, the 1st opponent did not step into witness box. The appellant also has not adduced any evidence to show that there was a transfer effected by the 1st opponent prior to the date of the accident. Therefore, the first submission has no merit. 7. In sofar as second submission is concerned, it must be stated that in the written statement, the appellant has not raised any contention regarding breach of terms and conditions of the policy. There is not even a whisper about the said contention in the written statement. From the impugned Judgment it appears that the said contention was never raised before the Tribunal at the time of hearing of the claim petition. A reliance is placed by the Advocate for the appellant on the deposition of witness No.2 examined by the 1st to 7th respondents and she submitted that the said deposition itself shows that there was a breach of terms of the policy. Firstly, the said submission cannot be allowed to be canvassed as there was no such plea raised in the written statement. Therefore, the 1st to 7th respondents never had any notice that such a plea is intended to be raised by the appellant. There is one more reason : 5 : why the said plea cannot be allowed to be raised. The insured had appeared before the Tribunal and had filed a written statement at Exhibit-9. Subsequent to the filing of the written statement of the insured, the appellant filed written statement at Exhibit-20. Thereafter, the insured did not choose to appear before the Tribunal. The effect of accepting the contention regarding the breach of terms and conditions of the policy is that the appellant will be exonerated and the compensation will be payable by the opponent No.1. If such contention is allowed to be raised in the Appeal, the net result is that the 1st to 7th respondents as well as the original 1st opponent-insured will be prevented from dealing with the said contention. The said parties had no notice that the said contention will be raised in as much as there was not even a reference to the said contention in the written statement of the appellant. If the said contention would have been raised, the insured could have appeared before the Tribunal to contest the said contention. The said two parties will be vitally affected by the said contention. Therefore, the appellant cannot be allowed to raise the said contention for the first time in the Appeal. Therefore, the said contention cannot be accepted. : 6 : 8. The 1st to 7th respondents have relied upon a letter at Exhibit-29 issued by the office of the Commissioner of Police to the Advocate for the 1st to 7th respondents. The said letter discloses that the date of birth of the deceased was 1st June, 1953. So his age at the time of accident was 35 years. The said letter records that the colleagues of the deceased appointed on the same date were getting basic pay at the rate of Rs.1,330/- per month plus other admissible allowances. Thus, the basic pay mentioned in the letter dated 12th August, 1991 is of that day and not as of 9th September, 1988. There is no evidence on record to show as to what were the allowances admissible. Reliance has been placed by the Advocate for the 1st to 7th respondents on the deposition of one Raghunath Ramchandra Badgujar. The said witness was a colleague of the deceased in Police Department. The relevant part of his deposition reads thus :- "My basic pay in 1988 was about Rs.1,390/-. His basic pay was less by above 70 to 80. I used to get Rs.20/- per day at T.A. I was getting 38% D.A. of the basic pay. I was getting total about Rs.1,900/- to Rs.2,000/-. His salary may be about Rs.100/- less than me. Now I am getting about Rs.2,200/- and odd." : 7 : 9. The said witness claims that his basic pay in the year 1988 was Rs.1,390/- whereas the letter at Exhibit-29 shows that the basic pay of the deceased as on 12th August, 1991 would have been Rs.1,330/- per month. Therefore, the statement of the said witness that the salary of the deceased was less by Rs.100/- than his salary does not appear to be factually correct. Apart from that the only documentary evidence on record as regard income of the deceased is at Exhibit-29. 10. Perusal of the impugned Judgment shows that the learned Member of the Tribunal has taken the gross salary of the deceased at Rs.1,900/- or Rs.2,000/- on the date of the accident. Considering the evidence of the 2nd witness examined by respondent Nos.1 to 7 and the letter at Exhibit-29, in fact, the amount of gross salary taken by the learned Member of the Tribunal is certainly on the higher side. After deducting some amount on account of personal expenditure of the deceased, the dependency has been taken by the learned Member of the Tribunal at the rate of Rs.1,000/- per month. The said figure is also on the higher side considering the income of the deceased on record. However, for calculating the multiplicand, while deciding this Appeal, the said amount need not be : 8 : reduced as the Member of the Tribunal has not considered the reasonable prospects of enhancement in the salary of a deceased especially when the deceased was in the employment of the State Government in police service. 11. The age of the deceased was 35 years and more at the time of the accident. In my view, multiplier of 12 ought to have been taken by the learned Member of the Tribunal. Thus taking the yearly dependency at the rate of Rs.12,000/- and taking the multiplier of 12, the compensation amount comes to Rs.1,44,000/-. In addition to that, usual amount of Rs.10,000/- has been granted by the Tribunal. Hence, compensation payable by the appellant will be Rs.1,54,000/-. To that extent the Appeal must succeed. The rate of interest of 12% p.a. is reasonable considering the fact that the accident is of the year 1988. 12. Hence, I pass following order :- "O R D E R" "O R D E R" "O R D E R" (a). The impugned Judgment and Award is modified by holding that the total compensation payable will be Rs.1,54,000/- : 9 : instead of Rs.2,50,000/-. (b). Rest of the Award regarding payment of interest is maintained. (c). Appeal is partly allowed in above terms. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]