IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1399 OF 2008 WITH CIVIL APPLICATION NO. 3679 OF 2008. Commandant, College of Military Engg. Daphodi, Pune & Anr. ..... ..... ...Appellants. V/s Smt.Sulbha Pramod Napurkar ..... ... ...Respondent. Ms.S.V.Bharucha with Mr.N.R.Prjapati, Adv. for the appellants. Mr.D.A.Nalwade, Adv. for the respondent. CORAM: A.P.DESHPANDE AND SMT.R.P. SONDURBALDOTA, JJ. 19th April, 2010. ORAL JUDGMENT: (Per Deshpande, J.) By consent of the parties appeal was fixed for final hearing at the admission stage itself. Heard learned counsel for both the parties at length. 2. This appeal is directed against the judgment and award passed by the Motor Accident Claims Tribunal, Pune in MACP NO. 956 of 2006 dated 18.1.2008 where under the Tribunal directed the present appellants to pay a sum of Rs.22,63,308/- towards compensation, together with simple interest at the rate of 8% p.a. from the date of claim application till the date of realization of the amount under section 166 of the Motor Vehicles Act, 1988. The amount of compensation awarded includes the claim under section 140 of the Act. The claimant No.1 is the wife of the deceased whereas claimant No.2 and 3 are the minor daughter and son of 1 the deceased respectively. 3. The case of the respondent-claimants before the Tribunal was that the deceased Pramod Shamrao Nampurkar was proceeding on his Activa scooter towards ammunition factory, Khadki on 5.7.2006. At 7.30 a.m. in the morning when the deceased was proceeding from Rani Laxmibai Udyan Chowk, Elphinston Road, Khadki, Pune one military truck bearing registration No.04D157406Y came in very high speed and due to rash and negligent driving of the said truck gave dash to the scooter of the deceased who suffered multiple injuries in the accident and died at the spot. The driver of the truck was charge sheeted by the police and an offence against him came to be registered under section 279 read with section 304A of IPC. According to the claimants at the time of death of the deceased he was aged about 48 years and was working as an engineer in ammunition factory, Khadki and earning Rs.26000 to 27000 per month. The deceased had bright career and hence it was also contended that by the time deceased would have retired his earnings could be upto Rs.50000/- on account of increments and promotion. Thus a total claim of Rs.30 lacs towards compensation was made. The present appellants and the driver of the vehicle were served with notices. However though the present appellants filed written statement the driver of the vehicle chose not to put in appearance and hence was proceeded exparte. It is interesting to note that the present appellants who are owners of the vehicle have examined the driver as witness on their behalf to oppose the claim. 4. The present appellants pleaded in the written statement at Ex.13 that the driver of the vehicle was not at all rash and 2 negligent and the vehicle was not being driven at high speed. It is then stated that the quantum of compensation claimed is excessive and exorbitant. It is also asserted that the military truck was proceeding towards Vishrantwadi for reaching the school going children to the army school. When the truck came near the Rani Laxmibai Udyan Chowk the deceased was on scooter proceeding along with one auto rickshaw in front of the military truck and he fell down because of dash given by the auto rickshaw and came under the wheels of the truck. It is as such contended that the deceased himself was negligent. As against the said case of the appellants pleaded in written statement what transpires from the evidence of the driver is that at the time of accident it was raining. He has deposed that one scooterwala suddenly came from the left side of the truck and took right turn and tried to go from the right side of the auto rickshaw at which point of time one bus came from the opposite side and scooterwala applied break and as such scooter slipped and deceased came under the wheels of the truck. Altogether different version than what is pleaded in the written statement is narrated by the driver in his evidence. It is deposed by the driver that the scooterwala had tried to overtake the truck from the left side. However perusal of the panchanama clearly indicates that the deceased and his active scooter had come under the right side front wheel of the truck (wheels near the driver’s seat). The accident had taken place in the middle of the road and the width of the road at that place was 36 feet. The panchnama was prepared in the presence of the driver himself. It is also seen from the panchnama that the truck did not stop immediately but it dragged the deceased and the scooter a long distance. The police papers 3 which are filed on record clearly reveal that the driver has been prosecuted under section 279 and 304A of IPC for rash and negligent driving on the basis of the statement recorded by the police. In the light of evidence of the driver, the panchnama and other police papers the Tribunal has rejected the case of the present appellants that the deceased himself was responsible for the accident on account of contributory negligence. The trial Court has, on the basis of material on record reached the correct finding that the accident had taken place on account of rash and negligent driving of the truck and thus the claimants were held entitled to the compensation. As such the first contention canvassed by the learned counsel for the appellants that the deceased himself was guilty of contributory negligence and hence the claimants are not entitled to claim compensation, cannot be accepted and is rejected. We do not see any infirmity in findings recorded by the Tribunal about the deceased being in no way negligent and responsible for the accident. It is next contended that the Tribunal ought to have deducted the family pension amount received by the family of the deceased. The submission is that admittedly the family of the deceased is receiving Rs.6000/- per month towards the family pension and hence same ought to be deducted from the amount of compensation. The learned counsel for the respondents has placed reliance on a judgment of the Supreme Court in the case of Lal Dei & Ors. vs. Himachal Road Transport (2007) 8 SCC 319 which goes to hold that the deduction of family pension amount from the compensation is not permissible. The Supreme Court in turn has placed reliance on its earlier judgment in the case of Helen C. Rebello v. Maharashtra SRTC, (1999) 1 SCC 90. The Supreme 4 Court has held that there is no co-relation between the family pension that is received by the family of a deceased and the amount of compensation and therefore the family pension cannot be deducted while computing the compensation. In that view of the matter the second submission is also rejected. The Tribunal has rightly applied multiplier of 13 and worked out the annual income on the basis of monthly salary. 1/3rd deduction is also made from the deceased’s income. The approach of the Tribunal is just and fair. We are also not in agreement with the contention of the learned counsel for the appellants that a sum of Rs.1,50,000/- could not have been awarded towards loss of future income of the deceased expected to be earned on account of increments and promotion. We do not see any sustainable objection to the same. Hence the said plea is rejected being devoid of any merit. In the result there being no merit in the appeal the same is dismissed with no order as to costs. Needless to mention that interim order, if any, stands vacated. In view of dismissal of appeal Civil Application No. 3679/08 does not survive and the same also stands disposed of. 19.4.2010. 5