1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1003 OF 1996 Sakinaben A. Charoliya & Ors. .. Appellants versus Bajirao M. Kadam & Ors. .. Respondents Mr.P.J.Thorat for the appellant Nos.1 to 6. CORAM : A.S.OKA, J. DATE : 3rd March 2010. JUDGMENT: . Heard learned counsel appearing for the appellants. The real contesting parties are respondent Nos.3,6 and 8. The office noting shows that the said respondents have been duly served with the notice. Notice is also served to 2nd and 3rd respondents. None appears for the said respondents. 2. The appellants are the claimants in a claim petition filed under section 166 of the Motor Vehicles Act, 1988. The claim was made for grant of compensation on account of death of one Abdulbhai Charoliya in a motor accident on 9th June 1990. The 1st appellant is the widow of the deceased and 2nd to 6th appellants are the children of the deceased. The 7th appellant , the mother of the deceased, died during the pendency of the appeal. The other appellants are her legal representatives. There were three vehicles 2 involved in the accident. The 2nd, 5th and 7th respondents are the owners of the offending vehicles and 3rd, 6th and 8th respondents are respectively the insurers of the offending vehicles. The claim for compensation was made at Rs.6,00,000/-. The compensation of RS.1,74,000/- with interest at the rate of 12% per annum was granted by the Tribunal and it was held that the owners and the insurers of the three vehicles involved in the accident were liable to pay 1/3rd amount each out of the compensation amount. 3. The learned counsel appearing for the appellants has invited my attention to the evidence on record. He stated that the deceased had substantial income. He pointed out that apart from the fact that the deceased was a partner in hotel business he was also a partner in transport business and a copy of Partnership Deed was produced on record. He submitted that there is evidence on record to show that deceased had undivided share in the agricultural land. He submitted that the claim regarding agricultural income has been erroneously rejected by the Tribunal. He pointed out that the Tribunal has taken yearly income of Rs.24,000/- but has not considered future prospects of increase in income. He submitted that the compensation of Rs.1,74,000/- awarded by the Tribunal is extremely on the lower side. 4. I have carefully considered the submissions. The widow of the deceased stated that the deceased was running a hotel and was a partner in the partnership business under the name and style of Sagar Roadways. She stated that even the hotel business was conducted in partnership. According 3 to her version , the deceased was also cultivating agricultural land. She stated that total yearly income received by the deceased from both the partnership firms was Rs.24,000/- and the agricultural income was Rs. 16,000/- per annum. However, in the cross-examination the widow admitted that her husband had 1/10th share in the cultivable lands. One Kasamali Charoliya, younger brother and parter of M/s.G.K.Enterprises was examined. The said partnership firm is running hotel business. He stated that in the year 1989-1990 the income from the hotel was to the extent of Rs.1,07,447/- and the deceased was entitled to 10% share in it. In the cross-examination he stated that when the hotel business was started in May 1978, the half yearly income was about Rs.48,000/- per annum. 5. As far as income from agriculture is concerned, there is hardly any evidence. The widow admitted that the deceased had only 1/10th share in the agricultural lands. At the time of accident, the income from the hotel business was Rs.1,07,447/- and it is stated that deceased used to get 10% of the said income. Thus, at the time of death, from the hotel business ,the income of the deceased was Rs.10,744/- per annum. There is no material on record to indicate as to what was income from transport business. The learned Member of the Tribunal has taken the dependency at Rs.1500/- per month. As stated earlier, there is no evidence regarding income received from agriculture. Moreover, there is no evidence to show the income from transport business. Therefore, even taking into consideration alleged prospects of increase in the income ,the yearly income of the deceased can 4 be taken at Rs.24,000/-. As number of dependents are six, in view of law laid down by the Apex Court in the case of Sarla Verma (Smt) and Ors Vs Delhi Transport Corporation and Another [(2009) 6 Supreme Court Cases 121] ,deduction of an amount equivalent to 1/5th will have to be made on account of personal expenditure of the deceased. By deducting 1/5th from sum of Rs.2000/- per month, the monthly dependency comes to Rs.1600/- per month and yearly dependency comes to Rs.19,200/- per month. In view of what is held in the case of Sarla Verma (supra),as the age of the deceased was 40 years, multiplier of 15 will have to be applied and therefore the total compensation amount comes to Rs.2,88,000/- to which usual amount of Rs.15,000/- will have to be added. Thus, total compensation payable will be Rs.3,03,000/- instead of Rs.1,74,000/- Thus, the appellants will be entitled to enhancement of Rs.1,29,000/-. The claim petition is of the year 1990. Thereafter, there have been many fluctuations in the rates of interest of the nationalized banks and during last few years, rates have considerably gone down. Hence, on the enhanced amount ,the interest at the rate of 9% per annum will have to be granted. 6. Hence, I pass the following order: : O R D E R : (a) The appellants shall be entitled to additional compensation of Rs.1,29,000/- with interest thereon at the rate of 9% per annum from 5th September 1990 till the date of deposit with the Tribunal. (b) The additional compensation amount shall be paid as per the 5 proportions laid down by the trial Court in the impugned judgment and award. (c) Time of four months is granted to 3rd, 6th and 8th respondents to deposit the compensation amount with the Tribunal. (d) Rest of the award is maintained. (e) Appeal is partly allowed in above terms. The appellants will be entitled to proportionate costs of the appeal from 3rd, 6th and 8th respondents. (A.S.OKA,J)