: 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 (ST.) NO.1559 OF 2007 FIRST APPEAL (ST.) NO.1559 OF 2007 FIRST APPEAL (ST.) NO.1559 OF 2007 WITH WITH WITH CIVIL APPLICATION NO.571 OF 2007 CIVIL APPLICATION NO.571 OF 2007 CIVIL APPLICATION NO.571 OF 2007 United India Insurance Co. Ltd.,Mumbai ...Appellant V/s. Sumitra Satyawan Bagdi & Ors. ...Respondents Mr.S.M. Vidyarthi, Advocate, for the Appellant. Mr.A.A. Shaikh, Advocate, for Respondent Nos.1 to 6. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 22ND FEBRUARY, 2008. DATE : 22ND FEBRUARY, 2008. DATE : 22ND FEBRUARY, 2008. JUDGMENT: JUDGMENT: JUDGMENT: 1. Admit. Advocate for respondent Nos.1 to 6 waives service. Taken up for hearing forthwith. 2. The challenge by the appellant-insurer is to the Judgment and Award dated 18th January, 2006 passed by the learned Member of the Motor Accident Claims Tribunal at Bombay. The 1st to 6th respondents are the original claimants. The Claim Petition was filed under Section 166 of the Motor Vehicles Act, 1988. The 1st respondent is the widow of the deceased. The 2nd respondent is the father of the deceased whose name has been deleted during the pendency of the Claim Application. The 3rd to 6th respondents are the minor : 2 : children of the deceased. 3. On 1st October, 2002 at 11:00 p.m., the deceased was crossing the road in front of Milan Subway at Vile Parle, Bombay. At that time, a Sumo vehicle owned by the 7th respondent gave a dash to the deceased. The deceased sustained serious injuries and succumbed to the said injuries. the Tribunal found that the accident occured due to negligence on the part of the driver of the Sumo vehicle. the present appellant is the insurer of the vehicle. The Tribunal found that age of the victim was about 45 years who was in the employment with the Bombay Municipal Corporation as a sweeper. The learned Member took the income of the deceased at Rs.8,000/- per month for calculating the multiplicand and applied multiplier of 12. The Tribunal awarded total compensation of Rs.7,78,000/- with interest thereon at the rate of 7.50% p.a. 4. The submission of the learned Advocate for the appellant is that at the relevant time the deceased was drawing net salary of Rs.2,088/- and therefore the income of Rs.8,000/- per month taken by the learned Member of the Tribunal is on the higher side. It is submitted that considering the fact that age of the : 3 : deceased was about 45 years, the multiplier of 12 applied by the Tribunal is certainly on the higher side. The learned Advocate for the original claimants supported the impugned Judgment and Award by contending that as per the structured formula incorporated in Section 163A of the said Act of 1988, the multiplicand and the multiplier have been correctly calculated and no interference is called for. 5. I have carefully considered the submissions. The Tribunal found that the basic pay of the deceased was Rs.4,350/- and he was drawing Dearness Allowance to the extent of Rs.3,772/-. The Tribunal found that a sum of Rs.5,000/- was being deducted from the salary of the deceased towards repayment of bank loan. Notwithstanding these factual aspect, the Tribunal has taken the monthly income of the deceased at Rs.8,000/-. The basic pay of the deceased including allowances was Rs.4,350/-. The deceased was in Municipal service. 6. Considering the aforesaid facts, even after taking into consideration the future prospects of some enhancement in the income of the deceased, im my view, the income for calculating the multiplicand ought to : 4 : have been taken at Rs.6,000/- per month. Reliance has been placed by the Advocate for the claimants on the structured formula under Section 163A of the said Act of 1988. However, the Claim Petition was under Section 166 of the said Act of 1988 and the claimants had chosen not to apply under Section 163A. Therefore, the claimants cannot rely upon the structured formula. The age of the deceased at the time of death was 45 years. Considering the decisions of the Apex Court where multiplier of 12 has been applied to a deceased whose age was in the 37 to 38 years, multiplier of 10 ought to have been applied instead of 12 applied by the Tribunal. 7. Therefore, the compensation payable after deducting 1/3rd amount of the income for personal expenditure will be Rs.4,000/- x 12 x 10 = Rs.4,80,000/-. 8. On account of funeral expensess, loss of consortium and loss of estate, the Tribunal has awarded a sum of Rs.10,000/-. In the present case the accident is of the year 2002. In fact the said amount ought to have been Rs.20,000/-. This is a fit case for exercising powers under Rule 33 of Order XLI of the Code of Civil Procedure, 1908 for correcting the : 5 : said error committed by the learned Member of the Tribunal. 9. 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 dated 18th January, 2006 is modified to the extent that the total compensation payable will be Rs.5,00,000/- instead of Rs.7,78,000/-. (b). Rest of the Award made by the Tribunal is confirmed. (c). A sum of Rs.25,000/- deposited by the appellant shall be allowed to be withdrawn by the appellant. (d). Appeal is partly allowed in above terms with no order as to costs. (e). In view of this order, Civil Application No.571 of 2007 does not survive and the same is disposed of. : 6 : [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]