1 fa635-11 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION FIRST APPEAL NO. 635 OF 2011 ALONGWITH CIVIL APPLICATION NO.1081 OF 2011 The New India Assurance Co. Ltd. .. Appellant V/s. Smt.Kalpana V. Jadhav & Ors. .. Respondents ..... Mr. N. G. Ghotekar for the appellant. Mr. S. S. Punde for respondent Nos.1 to 6. ..... CORAM : A.S.OKA, J. DATE : AUGUST 9, 2011. JUDGMENT : Heard the learned counsel appearing for the appellant. The Appellant has taken an exception to the Judgment and Award dated 16th September, 2010 passed by the learned Member of the Motor Accident Claims Tribunal at Pune. The appellant is the insurer of the offending trailer which was involved in the accident. The first to sixth respondents are the claimants. The claim was filed on account of death of one Vilas Shrirang Jadhav in a motor accident on 7th November, 2006. On that date, the deceased was proceeding towards Jejuri on his motor cycle. It was dark and there was a trailer parked on the 2 fa635-11 road without there being any parking lights or reflectors. Perhaps the deceased could not see the trailer and he gave dash to the trailer and sustained severe injuries. He succumbed the injuries. The appellant filed written statement contending that the accident occurred due to negligence on the part of the deceased who was driving the motor cycle in excessive speed. It was contended that as the stock of diesel had exhausted, the Trailer had to be stopped. 2. The Tribunal held that negligence on the part of the driver of the offending Trailer has been established. The Tribunal granted compensation of Rs.14,60,000/- with interest at the rate of 7% per annum from the date of the filing of the claim application till the date of realization. 3. The first submission of the learned counsel appearing for the appellant is that the Trailer was required to be stopped as the stock of the diesel had exhausted. He pointed out that the road was having sufficient width and the Trailer was parked on the left side of the road. He submitted that sufficient portion of the road was available for the deceased to pass through. He submitted that in any case there is material on record to show that the deceased was driving the motor cycle negligently or in excessive speed. He submitted that the multiplier and 3 fa635-11 multiplicand are on the higher side. 4. I have carefully considered the submissions. The appellant did not examine the driver of the Trailer. The spot panchanama shows that the width of the road at the spot of accident was 18 feet. The width of the Trailer was about 8 feet and above. Therefore, nearly half of the road was blocked by the trailer. The panchanama did not show that the Trailer had put on indicator or had a light for warning the vehicles. Moreover, the panchanama does not not show that there were reflectors on the rear side of the Trailer. There was no bumper to the trailer. Thus, the finding is that the trailer was parked on a part of the road without there being any indicator or light displayed on the rear side of the Trailer, and practically half of the road was blocked by the Trailer in the night. Nothing is brought on record to show that there were street lights available so that the deceased could see the truck. In absence of evidence of the driver, the finding on the issue of negligence cannot be faulted with. 5. As far as quantum of compensation is concerned, salary certificate at Exhibit 36 was produced to show that the deceased was employed with the Pune District Central Co Operative Bank Limited and his monthly salary was Rs.12,949/- per month. The 4 fa635-11 age of the deceased was 47 years and was having a permanent employment with the said Co Operative Bank. His age of retirement was 60 years. In terms of the decisions of the Apex Court in the sale of Sarla Varma V/s. Delhi Transport Corporation (2009 ACJ 1298), 30% amount was added towards the future prospects of increase in the earnings. 1/3rd amount was deducted on account of personal expenses of the deceased. In fact, as per the decision in the case of Sarla Varma (Supra), 1/4th amount ought to have been deducted. Multiplier of 11 has been rightly applied as per the decision of the Apex Court. A sum of Rs.8,000/- has been granted on account of loss of Estate, loss of Consortium, love and affection and funeral expenses etc. Thus, computation of compensation made is fully in terms of the aforesaid decision of the Apex Court. In fact, the compensation ought to be more as deduction of 1/4 ought to have been made instead of 1/3 towards the personal expenditure of the deceased as the number of dependents were 6. The learned counsel appearing for the first to sixth respondents on instructions stated that the said respondents do not desire to claim enhancement in the compensation by filing Appeal or cross objection. 6. The learned counsel appearing for the appellant relied upon the decision on the Apex Court in the case of Raj Rani and Others V/s. Oriental Insurance Co. and Ors. [2009 (4) T.A.C. 5 fa635-11 385(S.C.)]. The finding recorded by the Apex Court as regards negligence therein is in the facts of the case before it. There is no merit in the Appeal and the same is accordingly dismissed with no order as to costs. 7. A sum of Rs.25,000/- deposited by the appellant, if pending in the Court, shall be refunded to the appellant with interest accrued thereon. 8. Civil Application No.1081 of 2011 does not survive and the same is disposed of. (A.S.OKA, J.)