-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO.97 OF 1996 APPEAL NO.97 OF 1996 APPEAL NO.97 OF 1996 Maharashtra State Road Transport Corporation ...Appellant vs. 1.Sindhu Tukaram Dalvi 2.Tukaram Laxman Dalvi 3.Vandana Prakash Dalvi ...Respondents Mr.C.M.Lokesh h/f Mr.G.S.Hegde for the Appellant Mr.Pramod Pawar for Respondent Nos.1 and 2 Mr.R.R.Bhosale for Respondent No.3 CORAM: CORAM: CORAM: A.S.OKA, J. A.S.OKA, J. A.S.OKA, J. DATE DATE DATE : FEBRUARY 18, 2008 : FEBRUARY 18, 2008 : FEBRUARY 18, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. On the last date, the submissions of the learned Counsel for the parties were heard. The challenge in this Appeal is to the Judgment and Award dated 7th April 1995 passed by the Motor Accident Claims Tribunal on a claim petition filed by the respondent Nos.1 and 2. 2. The claim petition is on account of death of one Prakash who was the son of the first and second respondents herein. The said Prakash was working as the Conductor with the Appellant. The accident occurred on 19th October 1990 when the said Prakash was on duty in the bus of the Appellant. The allegation in the claim petition is that while the bus was in Borghat, the driver of the bus was driving the same in a high and excessive speed. As a result, the bus fell in a valley. Many passengers died and some of them sustained injuries. The said Prakash died in the accident. The Appellant did not file -2- the written statement contesting the claim. On the basis of the evidence on record, the tribunal awarded compensation of Rs.1,36,000/- with interest thereon at the rate of 12% p.a. by holding that the salary of the deceased was Rs.2050/-. The tribunal held that the accident occurred due to rash and negligent driving on the part of driver of the bus of the Appellant. 3. The submission of the learned Advocate for the Appellant is that the Appellant had deposited a sum of Rs.79,760/- with the Commissioner for the Workmen’s Compensation. The said amount has been paid over to the widow of the deceased under the order dated 4th February 1992. The submission is that the fact that the amount of compensation was deposited by the Appellants with the Commissioner has been suppressed by the first and second Respondents before the tribunal. He submitted that the claim made by the first and second Respondents could not have been entertained in view of the deposit of the aforesaid amount by the Appellants. He submitted that in any event there is no negligence on the part of the driver of the bus of the Appellant. He submitted that considering the respective ages of the first and second Respondents, the compensation awarded is on the higher side. He submitted that the multiplier adopted is on the higher side. 4. The learned Advocate for the Appellant also pointed out -3- the order passed by this Court on Civil Application No.2355 of 2002 filed by the third Respondent herein (Smt.Vandana Dalvi). He pointed out that a sum of Rs.25,000/- has already been withdrawn by her out of the compensation amount deposited by the Appellant in the trial Court, under the order passed on the said Civil Application No.2355 of 2002. He pointed out that this is in addition to the amount deposited by the Appellant under the Workmen’s Compensation Act,1923. 5. The Advocate for the first and second Respondents pointed out that it was the specific case of the said Respondents before the tribunal that the deceased Prakash had taken a divorce. He pointed out that the notice of Civil Application No.2355 of 2002 was not served to him or to his clients. He submitted that the third Respondent had no right to claim compensation as she is the divorcee of deceased Prakash. It is submitted that the compensation awarded is just and proper and no interference is called for. I have also heard the learned counsel for the third respondent. 6. I have carefully considered the said submission. It must be stated here that the Appellant did not contest the claim petition. The Appellant did not bring to the notice of the tribunal that the third respondent had withdrawn a sum of Rs.79,760/- deposited by the Appellant with the Commissioner for Workmen’s Compensation. Though it is the case of the Appellant that the notice of the said deposit was issued to -4- the second Respondent, the Appellant has not placed any material in that behalf either before the tribunal or before this court. The case of the first and second respondents which is rightly accepted by the tribunal is that before his death the deceased Prakash had obtained divorce and therefore, the third respondent could not have claimed any compensation. Therefore, the submissions based on the deposit of the amount with the Commissioner cannot be accepted at this stage in the claim petition of 1991 which is disposed of in the year 1995. If the third Respondent has withdrawn the compensation amount though the third respondent was not entitled to do so, it is for the appellant to take out appropriate proceedings in that behalf before the learned Commissioner. 7. In so far as the negligence is concerned, there is no contest by the Appellant. Nevertheless, the learned Member of the tribunal has taken into consideration the certified copy of the spot panchnama. After perusing the certified copy of the panchnama, the learned Member of the tribunal recorded the finding that the driver had not taken the precaution and if the vehicle would have been driven in a slow speed, the accident could have been avoided. There is no reason to disturb the said finding especially when the Appellant did not contest the claim Petition. 8. The income of the deceased at the time of the accident was Rs.2049/- p.m. The first respondent deposed before the -5- tribunal in the year 1995. Her age disclosed in the deposition is 52 years. Thus, her age at the time of accident must be around 47 years. She disclosed that the age of the second respondent was 60 years at the time of recording of evidence. Thus, his age must be 55 years at the time of the accident. In paragraph 16 of the Judgment the tribunal has held thus : "16. For first 5 years I accept dependancy of Rs.900 p.m. Total dependency of five years comes to Rs.54,000 (Rs.900 X 12 X 5). Later on I consider dependency of Rs.600 p.m. for further 10 years which comes to Rs.72,000/- (Rs.600 X 12 X 10). They have lost their son. They have deprived their love and affection of their son. After death they have performed last rites of their son and dead body was cremated. So I award Rs.5000/- for loss of estate. Love and affection and Rs.500/- for funeral and list rites...." 9. It is obvious that the tribunal has not at all considered the respective ages of the first and second Respondents while taking the multiplier. The dependency is taken at Rs.900/- p.m. which is reasonable considering the income of the deceased. Considering the respect ages of the parents, the multiplier could not have exceeded six. Thus, taking the yearly dependency at Rs.10,800/- and by applying the multiplier of 6, the compensation amount ought to have been -6- Rs.64,800/-. In addition to that usual amount of Rs.10,000/- on account of funeral expenses etc. ought to have been added. Thus, taking a round figure, the compensation ought to have been Rs.75,000/- payable to the first and second Respondents. The learned Advocate for the Appellant has made criticism of the rate of interest of 12% p.a. Considering the fact that the accident occurred in the year 1990 and the claim petition is of the year 1991, the rate of interest is justified. 10. I have perused the record of the Appeal. Civil Application No.2355 of 2202 was taken out by the third Respondent. The third Respondent was neither a party to the claim petition or to the present Appeal. The third Respondent in the application had claimed that she was the widow of the deceased. Perusal of the record of the said application shows that the notice of the said application was not served to the first and second Respondents. It must be stated here that in the said application the third Respondent did not disclose that she had received the amount deposited by the Appellant with the learned Commissioner for the Workmen’s Compensation. However, a copy of order dated 22nd April 1996 passed on Civil Application for stay made by the Appellant in the Appeal was annexed to the said Civil Application. The said order discloses that the third Respondent had withdrawn a sum of about Rs.80,000/- deposited by the Appellant with the learned Commissioner for Workmen’s Compensation. By the said order, this court granted stay in favour of the Appellant subject to -7- deposit of Rs.25,000/- with this Court. As a result, as per the order passed by this Court on 9th August 2002 on Civil Application No.2355 of 2002 , the third Respondent has withdrawn a sum of Rs.25,000/- subject to furnishing an undertaking to redeposit the said amount. The undertaking has been accordingly furnished. It is obvious from the record that the notice of the said application was not served to the first and second Respondents. It is an admitted position that the third respondent has withdrawn the amount deposited by the Appellant with the learned Commissioner for the Workmen’s Compensation. Therefore, the third Respondent will have to redeposit the amount of Rs.25,000/- with the tribunal. 11. The learned Advocate for the first and second Respondents pointed out that during the pendency of the Appeal, the second respondent has expired. The first Respondent is one of the legal representative of the second Respondent. The learned Advocate has tendered on record an Affidavit of one Ashok Tukaram Dalvi, the son of the second Respondent and Mrs.Chhaya Laxman Virkar, the daughter of the second Respondent. It is disclosed that the apart from the deceased Prakash, the first Respondent had another son by the name Anil who has predeceased the second Respondent. It is stated in the Affidavit that the entire compensation amount may be paid to the first Respondent (mother of the deceased). 12. Hence, I pass the following order : -8- i) The impugned Judgment and Award dated 7th April 2005 is modified to the extent that instead of a sum of Rs.1,36,000/-, the compensation payable by the Appellant to the first and second Respondents will be Rs.75,000/-. Rest of the Award is confirmed. Thus, the Respondent Nos.1 and 2 will be entitled to compensation of Rs.75,000/- together with interest at the rate of 12% p.a. from the date of filing of the claim petition till the realisation of the amount. ii) The third Respondent is directed to deposit in this Court a sum of Rs.25,000/- withdrawn by her within a period of four months from today. If the third respondent fails to deposit the amount, the Appellant will be entitled to recover the said amount by executing the modified Award before the tribunal. iii) The first Respondent will be entitled to withdraw the amount deposited by the Appellant in this Court, if any, and the tribunal together with interest accrued thereon. iv) The balance amount payable to the first Respondent under this Judgment shall be deposited by the Appellant with the Tribunal within a period of four months from today. v) It will be open for both the Appellant and the first -9- Respondent to take out appropriate proceedings as regards the order passed by the learned Commissioner under the Workmen’s Compensation Act,1923. vi) Appeal is partly allowed in above terms with no order as to costs. JUDGE JUDGE JUDGE