1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 31/2006 Smt. Bhageshree Velip, wife of late Shrikant Velip, aged 26 years, housewife, resident of House No. 584, Velipwado, Barcem, Quepem, Goa. .... Appellant. V/s. 1. Shri Ashok Naik, son of Shivram Naik, major, resident of House No.115, Kapshew, Sanvordem-Goa, diver of the truck No.GA-02/T-5104) deleted as per order of the Court. 2. M/s. Rohit Crushing Industries Cuncolim C/o. Ulhas Desai, Dandora, Cuncolim – Salcete, Goa owner of the Truck No.GA-02/T-5104 3. The New India Assurance Company Ltd. Margao, Salcete, Goa. 4. Shri Bombo Sonu Velip, s/o. Late Sonu Velip, 60 years of age, married, and his wife; 5. Smt. Laximi Bombo Velip, w/o. Bombo Sonu Velip, 52 years of age, housewife, Both resident of House No.33, Velipwado, Barcem, Quepem, Goa. ... Respondents Mr. V.G.P. Dukle Advocate for the Appellant. 2 Mr. P.K. Gude, Advocate for Respondent No.3. CORAM :- F.M. REIS, J. DATE : - 10th MARCH, 2011. J U D G M E N T : The above appeal challenges the judgment and award dated 23/09/2005, passed by the learned Presiding Officer, Motor Accidents Claims Tribunal at Margao in Claim Petition No.261/2002. 2. The appellants filed the claim petition on the ground that late Shikant Velip expired due to the injuries he sustained in the motor accident on 17/10/2001 at Paddi, Quepem. The said deceased was proceeding on a motorcycle from Barcem to Paddi on National Highway - 17 and when he reached at Paddi, one Tata Tipper truck bearing no.GA-02-T-5104 came and dashed his motorcycle. The said truck was being driven in a rash and negligent manner and on account of the injuries sustained on account of the said accident, said Shrikant came to expire. 3. The appellant is the widow of the said deceased and the respondent nos.4 and 5 are the parents of the said deceased. The 3 appellant is stated to be 26 years old and the deceased was 27 years of age. It is claimed by the appellants that the said deceased was an operator in a laterite quarry and was earning a sum of Rs.5,000/- per month. The claim was put up by the appellants for a total sum of Rs.7 lacs. The respondents nos.1 & 2 filed their written statement and claimed that the accident had occurred on account of the fault of the deceased. The respondent no.3 filed the written statement denying the monthly income of the deceased at Rs.5,000/- per month. 4. The Tribunal after framing the issues and recording of evidence came to the conclusion that the appellant/claimant had established that the accident occurred on account of the rash and negligence on the part of respondents nos.1 & 2. The Tribunal further awarded compensation of Rs.1,29,500/- to the appellant and the respondents nos.4 & 5. Being aggrieved by the said judgment, the appellant has preferred the present appeal. 5. Shri Dukle, the learned Counsel appearing for the appellant has assailed the impugned judgment only with regard to the compensation awarded by the Tribunal. The learned Counsel submitted that the appellant has examined AW3/Shri Umakant 4 Dessai, who has deposed that the said deceased Shrikant Velip was working with him as a machine operator and earning a sum of Rs.5,000/- per month. The learned Counsel further submitted that there was no question to disbelieve the said statement of AW3 for the purpose of fixing the compensation payable to the appellant. The learned Counsel further submitted that the Tribunal was not justified to come to the conclusion that the appellant has failed to prove that the deceased Shrikant was having fixed income per month. The learned Counsel further submitted that the Tribunal was not justified to fix the income of the deceased on notional basis of Rs.15,000/- per annum. The learned Counsel further submitted that the appellant was entitled for much higher compensation than the one awarded by the Tribunal. 6. On the other hand, Shri P.K. Gude, learned Counsel appearing for respondent no.3 has supported the impugned judgment. The learned Counsel submitted that there is no evidence on record to substantiate the claim of the respondents that the deceased was earning a sum of Rs.5,000/- per month. Learned Counsel further took me through the evidence on record and pointed out that AW3 has categorically stated that the deceased was earning daily wages. Learned Counsel further submitted that in 5 such circumstances, the question of deceased earning any fixed income per month would not arise. Learned Counsel further pointed out that there is no infirmity committed by the Tribunal and, as such, no interference is called for in the impugned judgment. 7. Having heard the learned Counsel of both the parties and on perusal of the records, I find that for the purpose of determining the income of the deceased, the appellant has relied upon the document which is at Exhibit 27. The said document establishes that in fact the deceased was working as a machine operator in the establishment of AW3. In the cross-examination of AW3, he has admitted that the services of the deceased were hired on daily wages. Once this aspect has been admitted, the claim of the appellant to the effect that the deceased was having a fixed income of Rs.5,000/- per month appears to be doubtful. The evidence of AW3 establishes that the deceased was working as an operator in his establishment and this aspect has not been disputed in his cross-examination by any of the respondents. It is well settled that the persons who are working on daily wages may not be engaged for the entire month. The average days in a month of such daily wages workers would be 20 and minimum wages can be 6 considered at the relevant time at Rs.100/- per day. Considering the said amount, the annual income of the deceased would work out to Rs.24,000/-. In such circumstances, considering that there was evidence on record to establish that the deceased was working on daily wages, the Tribunal was not justified to fix the income of the deceased on notional basis. 8. Considering the annual income of the deceased was Rs.24,000/- and his age which is stated to be 27 years as on the date of the accident and the age of the appellant, who is the widow is 26 years, the multiplier to be applied in such cases would be 17, considering the judgment of the Apex Court reported in 2009 (6) SCC 121 in the case of Sarla Verma (Smt.) & Ors. V/s. Delhi Transport Corporation & Anr. The total amount as such works out to Rs.4,08,000/-. The dependents of the deceased besides the appellant included his parents, who are respondents nos.4 & 5, who are stated to be of 60 and 52 years respectively. Considering the number of dependents in the present case, the deductions to be effected on account of personal expenses would be 25%. After such deductions, the amount works out to Rs.3,06,000/-. Besides the said amount, the appellant/claimant would also be entitled to compensation on account of funeral expenses to the tune of 7 Rs.2,000/-; loss of estate to the tune of Rs.2,500/- and loss of consortium to the tune of Rs.5,000/- as awarded by the learned Tribunal. Total amount, as such, works out to Rs.3,15,500/-. The learned Tribunal while distributing the amount of compensation by the impugned judgment has directed that a sum of Rs.50,000/- each be paid to respondents nos.4 & 5, herein. After deducting the said sum of Rs.50,000/- paid under Section 140 of the Motor Vehicles Act, the amount stands reduced to Rs.2,65,500/-. The amount payable to the respondents nos.4 & 5 pursuant to the impugned judgment is Rs.1 lac. After such deduction, the balance amount payable works out to Rs.1,65,500/-. The said sum of Rs.1,65,500/- is payable to the appellant, herein. The said amount shall carry interest at the rate of 6% per annum from the date of filing of the Claim Petition up to the actual payment. The impugned judgment deserves to be modified to the above extent. 9. In view of the above, I pass the following order: O R D E R (i) The appeal is partly allowed. (ii) The impugned judgment and award dated 23/09/2005 is modified and the appellant is awarded a sum of Rs.1,65,500/- along with interest at the rate of 6% from the date of filing of the Claim Petition up to actual payment. 8 (iii) The respondents nos.4 & 5 would be entitled to a sum of Rs.50,000/- each along with interest at the rate of 6% per annum from the date of the filing of the Claim Petition up to actual payment. (iv) The appeal stands disposed of accordingly with proportionate costs. F.M. REIS, J. NH/-