1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY : AURANGABAD BENCH FIRST APPEAL NO. 806 OF 2002 The Branch Manager, New India Assurance Company Ltd., Near Dadhiwala Bungalow, Jalgaon. - - - - - - Appellant versus 1. Smt. Mrunal Raghunandan Pandit, age 45 years, occ. household work. 2. Miss Shivani Raghunandan Pandit, age 21 years, occ. education, 3. Darshan Raghunandan Pandit, age 19 years, occ. education, 4. Shefali Raghunandan Pandit, age 15 years, minor u/g. of mother respondent No.1 Mrunal. All residing at Aradhana Apartment, Plot No.6, Near Rustamji High School, Jalgaon. - - - - Respondents ( Orig. claimants ) 5. Premsing Govindsing Rathod, age 30 years, occ. truck driver, R/o. Siarpur Wawada, post Kunoholi, taluka Kumbadgadh, district Ramsaman, Rajasthan State. 2 6. Shaktarsing Basiyasing Jopada, age major, occ. owner of truck, R/o. Jopada, No.12, M/72, Yashwantnagar, Parksite, Vikroli, Mumbai. 7. Radhakrishna Nandlal Pandit, age 75 years, occ. nil, 8. Rukmini Radhakrishna Pandit, age 68 years, occ. nil, Both r/o. 19, Ravikishan Society, Bibwewadi, Pune 37. 9. The Executive Engineer, Environmental Engineering Division, Savada, taluka Raver, District Jalgaon. 10. Assistant Director of Insurance, Junior Technical Officer, Maharashtra State, Mumbai. - - - - Respondents. Shri S. G. Chapalgaonkar, Advocate for appellant. Shri V. Y. Patil, Advocate for respondents Nos.1 to 4. Shri D. P. Bakshi, Advocate for respondent No.9. Respondents Nos.5 and 6 deleted as per Court's Order dated 10-4-2007. CORAM : B. R. GAVAI & N. D. DESHPANDE, JJ. Reserved for orders on : 13-8-2009 Pronounced on : 21-8-2009 3 ORAL ORDER : [ Per N. D. Deshpande, J. ] 1. Heard both the sides. 2. This appeal is directed against an award of compensation for Rs.7,39,500/- plus interest at the rate of 9 per cent from the date of presentation of the petition, which includes no fault liability of Rs. 50,000/- passed against the driver, owner and present Assurance Company named above. 3. The impugned award is passed by the Motor Accident Claims Tribunal, Jalgaon in M.A.C.P. No. 400 of 1998 dated 8-3-2002 filed by legal heirs of deceased one Raghunandan Pandit. They are dependants namely; widow Mrunal, two unmarried daughters namely; Shivani and Shefali and son Darshan. The original claim in the petition is for Rs.12,00,000/- arising out of road accident which took place on 16-10-1996 near eastern side of Bhadali railway gate. 4. Deceased was occupying front seat by the side of the driver named; Hari Namdeo Waghe who was driving his office jeep No. MFR 342. The offending vehicle truck bearing No. MP 24/9147 4 which came from opposite direction and dashed against the jeep. The said accident proved fatal for deceased Raghunandan and other inmates of jeep were seriously injured. 5. For the decision of the claim, the relevant facts can be stated as under : Deceased was serving as Deputy Engineer in Water Supply and Swerage Board in Savada Division and was earning Rs.9736/- as salary per month and was aged 49 years. Therefore, his dependants who are petitioners claimed Rs.12,00,000/- from the appellant Assurance Company, the owner and driver of the offending vehicle. The said petition was decided on merit after recording evidence and was partly allowed by the learned Motor Accident Claims Tribunal, Jalgaon for Rs.7,19,500/- with regard to deceased monthly income and his age by applying multiplier 13. 6. We have perused the impugned award in the light of the submissions made by Shri Chapalgaonkar, learned Counsel for the appellant Assurance Company and the grounds raised in appeal. The main submissions of the appellant on the point of alleged contributory negligence both the drivers of the vehicles involved in 5 accident can not be accepted in the absence of evidence. It is held that driver of the offending vehicle i.e. truck No. MP 24/9147 was responsible and, therefore, the appellant Assurance Company and others were held jointly and severally liable to pay compensation. On this point, the reasonings given by learned Motor Accident Claims Tribunal are sound and call for no interference. It is also observed that truck driver was alone prosecuted under section 304- A, 279, 337 and 427 of the Indian Penal Code and under Section 184 of the Motor Vehicles Act. However, on the point of negligence, the burden cannot lie on the claimants who were not the witnesses to the accident. The police papers and the challan are the material for deciding the claim in question. 7. There is no serious challenge to the income of the deceased and his age. The main argument advanced was on the point of multiplier of 13. In support of his contention, Shri Chapalgaonkar relied on a decision of the Apex Court in the case of Rani Gupta and others vs. M/s. United India Insurance Company Ltd. and others, reported in 2009 AIR SCW 3243 and urged that multiplier of 9 or 10 would be justifiable in the facts and circumstances of the case considering the age of the deceased as 49. There is no dispute about the income and the age of the deceased. 6 Considering the facts of the case and after going through the impugned award, it is seen that multiplier of 13 cannot be made applicable in the present case and the submissions of the appellant needs consideration. 8. Learned Counsel respondents claimants supported the award and prayed for dismissal of the appeal. 9. Upon consideration of the record and after hearing both the sides, we are of the candid opinion that multiplier of 11 should have been applied in this case for just and reasonable compensation for Rs.6,60,000/- considering his annual income of Rs.60,000/- as per the impugned award. Rest of the amount of Rs.2000/- for funeral, Rs.5000/- for consortium and Rs.2500/- for loss of estate, total Rs. 9500/- and an amount of Rs.50,000/- paid under no fault liability have been considered by the learned Motor Accident Claims Tribunal, which call for no interference. 10. We are, therefore, inclined to modify the impugned award by correcting multiplier of 11 in place of 13 and an amount of compensation which comes to Rs.6,60,000/- would be just and reasonable in place of Rs.7,80,000/- and they would also be 7 entitled to Rs.9500/- ( Rs.2000/- for funeral, Rs.5000/- for consortium and Rs.2500/- for loss of estate) and proportionate costs from the appellant. To that extent, appeal is partly allowed and disposed of accordingly. ( N.D.DESHPANDE, J. ) ( B. R. GAVAI, J. ) pnk/fa80602