1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.301 OF 1995 1 Nagappa Mahadeo Malghar 2 The United India Insurance Co.Ltd Branch Office, Dr.B.N.Sawant, At and Post Ratnagiri ...Appellants vs. 1 Vidyadhar Shridhar Patil 2 Tushar Vidyadhar Patil 3 Siddappa Madapa @ Mahadeo Malghar 4 The Oriental Insurance Co.Ltd. ...Respondents Mr.Suresh Bhosale for the appellants Ms S.A.Mudbidri for respondent nos.1 and 2 Mr.D.R.Mahadik i/b Mr.S.R.Singh for respondent no.4 CORAM :A.S.OKA,J. DATE : APRIL 13, 2010 JUDGMENT : 1 This Appeal was dismissed for non prosecution yesterday. On oral prayer made by the learned counsel for the appellants, appeal is restored and is taken up for hearing. 2 The appeal is by owner of the offending vehicle and insurer of the said vehicle for challenging the Award made by the learned Member of the Motor Accident Claim Tribunal in favour of the 1st and 2nd respondents- claimants. The first respondent is the husband of the deceased and the 2nd respondent is the minor son of the deceased. On 16th June 1987, the 1st respondent along with his deceased wife were proceeding from village Khudi to village Hindale by motor cycle. Both of them were employed in the school of Panchyat Samiti. After performing their duty, they were proceeding to village 2 Hindale. When they reached Bhanderwadi at about 6.15 p.m., a truck owned by the first appellant which was allegedly driven in a rash and negligent manner came from the opposite side and gave a dash to the rear position of the motor cycle. The deceased who was occupying the pillion seat was thrown out and practically crushed under the truck. 3 The claim petition was contested by the appellants and the 3rd respondent by contending that there was no negligence on the part of the driver of the truck and it was the 1st respondent who was negligently driving his motor cycle. The compensation of Rs.1,80,000/- with interest thereon at the rate of 12% per annum from the date of filing of the claim petition. 4 The learned counsel for the appellants submitted that there was no evidence to the show negligence on the part of the driver of the truck. Inviting my attention to the panchanama of the scene of offence, he pointed out that there is no damage to the motor cycle. He submitted that the very fact that there is no damage to the motor cycle shows that there was no negligence on the part of the driver of the truck. The accident occurred as the motor cycle slipped as the road was wet. He submitted that the fact that the due to rain, the road was wet is brought on record by the panchanama. He submitted that the fact that there is no damage to the motor cycle shows that the entire negligence was of the 1st respondent. He submitted that multiplier of 20 adopted by the Tribunal is on the higher side considering the fact that the age of the deceased was 35 years. He submitted that there was no evidence of the income of the deceased. 3 5 I have given careful consideration to the submissions. It must be stated here that the 1st respondent who was plying the motor cycle stepped into witness box. He stated that the truck owned by the 1st appellant came from the opposite direction in a rash and negligent manner and in very high speed. He stated that the truck gave a dash to the motor cycle. His wife was occupying the pillion seat. He stated that he had to shout at the truck driver and after some time the truck stopped. He has denied the suggestion that the motor cycle slipped as the road was wet. It is pertinent to note that when the case made out by the appellants was that the truck was not involved in the accident, the driver of the truck ought to have been examined. It must be noted here that this was a case where the driver who was the opponent no.1 to the claim petition contested the claim petition by filing the written statement along with the present appellants. The case made out by the 1st respondent is that the truck gave a dash to the motor cycle and as a result, his wife who was occupying the pillion seat fell down and was crushed under the truck. Looking the said case made out by the 1st respondent, only because any damage to the motor cycle was not noted, the case made out by the 1st respondent cannot be disbelieved. It has to be noted here that the panchanama of the truck has been marked as Exhibit-33 by consent of the parties. The said panchanama records that there was pool of blood near the wheel on the driver s side. There were blood stains on the front glass and other parts of the truck. There was a damage to the right side wheel of the truck. If the truck was not involved in the accident, it was the driver to explain as to how the pool of blood was found at the right side wheel of the truck. A suggestion was given that as the motor cycle slipped, the deceased fell down and came under the truck. Even 4 assuming that the said version is correct, it was the duty of the driver to step into witness box and to establish that he had discharged his duty to avoid accident. In the circumstances, the finding of the Tribunal that evidence of the 1st respondent on the issue of negligence deserves accepted cannot be disturbed. 6 The income certificate of the deceased issued by the Block Education Officer of Panchyat Samiti, Deogad is at Exhibit-29. The said certificate incorporates that the deceased was working as a Assistant Teacher in the school run by the Panchayat Samiti and her last drawn emoluments were Rs.1500/- per month. The Tribunal has not taken into consideration the future prospects of earnings of the deceased in as much as the age of the deceased was 35 years and she was in the permanent employment as Assistant Teacher in the Panchyat Samiti. In view of the decision of the Apex Court in case of Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another [(2009) 6 SCC 121]. 50% of emoluments will have to be added to the salary for calculating the multiplicand. Thereafter, 1/3rd amount will have to be deducted towards personal expenses. The dependency will be Rs.1500/- per month. As per the decision of the Apex Court in case of Sarla Verma (supra) even if multiplier of 16 is applied, the compensation will be more than Rs.2,88,000/-. Though multiplier of 20 has been applied which is on the higher side, 50% of the compensation has been deducted on account of personal expenditure. Such deduction could have been made only in case of unmarried person. Therefore, even if calculation is made after making an appropriate deduction in accordance with law and after applying lesser multiplier of 16, compensation amount exceeds to Rs.1,80,000/- which is the amount awarded by the tribunal. 5 7 In the circumstances, no case for interference is made out. Appeal is accordingly dismissed with no order as to costs. 8 If any, amount deposited by the appellant is pending in this Court the same shall be transferred to the concerned tribunal. The tribunal will allow the withdrawal/disbursement of the said amount after hearing the parties. JUDGE