1 fa38 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.38 OF 1996 1 Rekha Baburao Gaikwad 2 Chabutai Baburao Gaikwad ...Appellants Vs. 1 Ashok Baban Pawar 2 Baban Bapuji Pawar 3 Chandrakant Baburao Gaikwad 4 Suryakant Baburao Gaikwad 5 Rajendra Baburao Gaikwad ...Respondents Mr.V.S.Talkure for the appellants None for the respondent CORAM :A.S.OKA,J. DATE : OCTOBER 26, 2010 ORAL JUDGMENT : 1 Heard the learned counsel for the appellants. The appellants are the original claimant nos.4 and 5 in a claim petition filed under the Motor Vehicles Act,1988. The claim petition was filed for claiming compensation on account of death of one Baburao in a motor accident which occurred on 21st March 1990. Third to fifth respondents are the other claimants. The first respondent is the driver of the offending vehicle and the second respondent is the owner of the offending vehicle. Third to fifth respondents are the sons of the deceased. The first appellant is unmarried daughter of the deceased and the second appellant is the widow of the deceased. 2 The case made out in the claim petition is that the deceased was proceeding from Sastewadi to Phaltan on his 2 fa38 motor cycle in a moderate speed. When he reached Gosavi Vasti, near brick furnace, a jeep owned by the second respondent and driven by the first respondent came from the opposite side. It is alleged that the first respondent was driving the jeep in a rash and negligent manner and had brought the jeep on its wrong side. It is alleged that though the deceased tried to avoid the accident, the first respondent could not control his vehicle and gave a dash on the left hand side of the motor cycle. The deceased sustained head injuries with fracture of Maxilla. The deceased was admitted to P.H.C at Phaltan and later on transferred to Ruby Hall Clinic, Pune on 21st March 1990. The deceased expired in the hospital on 18th June 1990. A claim of Rs.3 lacs was made in the claim petition. 3 The claim petition was contested by the first and second respondents. It appears that the offending jeep was not insured. The first and second respondents contended that the deceased was following the truck and was ultimately trying to overtake it. It was alleged that while overtaking the truck, the deceased noticed the jeep and got confused. It is stated that in order to avoid the accident, the first respondent took the jeep to its right side i.e. on the northern side of the road and therefore, the accident took place. Thus, allegation is that entire negligence was of the deceased. 4 The tribunal after noting that the first respondent was convicted for rash and negligent driving came to the conclusion that the deceased came on its wrong side and therefore, held that the contribution of the deceased was to the extent of 25%. The medical expenses in the sum of Rs.68, 000/- were granted on the basis of the medical bills produced. By taking the dependency at Rs.500/- p.m, 3 fa38 the Tribunal applied multiplier of 5 and granted a sum of Rs.30, 000/-. On account of loss of consortium, the Tribunal has granted a sum of Rs.5000/-. Thus, total compensation of Rs.1, 10,000/- was granted. After deducting 25%, compensation of Rs.82, 500/- was granted. 5 The learned counsel for the appellant has taken the Court through record. He pointed out that the first respondent was convicted for the offence punishable under section 304A of the Indian Penal Code and therefore, there was no occasion for the Tribunal to hold that the deceased had also contributed to the accident. He submitted that the multiplier of 5 adopted by the tribunal is on the lower side. He submitted that the dependency taken at Rs.500/- p.m is also on the lower side considering the fact that the deceased was drawing a salary of Rs.1625/- p.m. None appears for the respondents. 6 I have carefully considered the submissions. The first issue is regarding the finding of contributory negligence against the first respondent. Perusal of the record shows that at Exhibit90, a copy of the Judgment and Order dated 4th June 1991 passed by the learned Judicial Magistrate (First Class) is placed on record. The said Judgment and order shows that the first respondent was convicted for the offences punishable under section 304-A, 327, 427,279 of the Indian Penal Code. In appeal preferred by the first respondent conviction of the first respondent for the offence punishable under section 304-A of the Indian Penal Code and section 66(1) of the Motor Vehicles Act was upheld. 7 In view of these factual aspects, the finding of the 4 fa38 tribunal that the deceased has also contributed to the accident cannot be sustained and same will have to be set aside. 8 The age of the deceased was 57 years at the time of accident. 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], multiplier of 9 ought to have been applied. The tribunal has applied multiplier of 5. It must be noted here that the third to fifth respondents were major and were gainfully employed on the date of filing the claim petition. Accordingly, the dependency will have to be considered. The income of the deceased was Rs.1625/- p.m which was the salary drawn by him from the Government service. 1/3rd amount will have to be deducted on account of personal expenditure of the deceased. After deducting 1/3rd amount, yearly dependency comes to Rs.13,000/-. Applying multiplier of 9, the compensation amount comes to Rs.1,17,000/- to which usual amount of Rs.15,000/- towards loss of consortium, funeral expenses etc will have to be added. A sum of Rs.68,000/- has been granted on account of medical expenses. The total comes to Rs. 2,00,000/-. The tribunal has granted compensation of Rs.82,500/- and therefore, the appellants will be entitled to additional compensation of Rs. 1,17,500/-. 9 The claim petition was filed in the year 1990 and was decided in the year 1994. Subsequently, the rates of interest offered by the nationalized banks 5 fa38 have considerably gone down. Hence, on the additional compensation, interest at the rate of 9% will have to be granted. Hence, the appeal must succeed in part. 7 Hence, I pass the following order: i) In addition to the compensation awarded under the impugned Judgment and Award, the claimants will be entitled to compensation of Rs.1,17,500/- with interest thereon at the rate of 9% p.a from 17th August 1990 till the date of realization or deposit of the amount with the Tribunal. ii)Time of four months is granted to the first and second respondent to deposit the additional compensation amount. iii) The appellants will be entitled to proportionate costs of the appeal from the 1st and 2nd respondents. iv)After the amount is deposited, the Tribunal will pass an appropriate order regarding disbursement/distribution of the compensation amount. JUDGE