1 FA.1806.09 w xobst.4912.10 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1860 OF 2009 WITH CROSS OBJECTION (stamp) NO. 4912 OF 2010 The New India Assurance Co. Limited. ... Appellant Versus Smt. Jyoti Anant Salunkhe and others. ... Respondents ----- Mr. V.N.Sagare for the Appellant. Mr. T.J.Mendon for Respondent Nos.1 to 4. ----- CORAM : A.S.OKA, J. DATE : 18 th August, 2011. ORAL JUDGMENT: 1 On the last date, the parties were put to notice that the appeal alongwith the cross-objection will be taken up for final disposal. 2 The Appellant is the Insurer of the offending vehicle. The Appellant has taken an exception to the judgment and award dated 25 th September, 2008 passed by the learned Member of the Motor Accident Claims Tribunal on a claim petition filed by the Respondent 2 FA.1806.09 w xobst.4912.10 Nos.1 to 4. The claim for compensation was made on account of death of one Anant Salunke in a motor accident. The Respondent No. 1 is the widow of the deceased and the Respondent Nos.2 to 4, who were minors at the relevant time are the children of the deceased. 3 On 29 th August, 2003 at about 10:30 in the night, the deceased was proceeding from Roha to Dhatav by M-80 moped. He was a pillion rider. The deceased was employed by Excel Company and the M-80 moped was being driven by his fellow worker. The deceased died in an accident involving another motorcycle. The Tribunal found that the accident occurred due to negligence on the part of the person plying M-80 moped. The Tribunal granted compensation of Rs.8,35,000/- (including no fault liability). There is a cross-objection filed by the claimants for seeking enhancement. The submission of the learned counsel appearing for the Appellant is that there was no evidence of negligence. The second submission is that the compensation granted is excessive. The submission is that his income taken for the purposes of calculating multiplicand is excessive 3 FA.1806.09 w xobst.4912.10 and the multiplier applied is excessive. 4 The learned counsel appearing for Respondent Nos.1 to 4 (original claimants) submitted that the pay slip of the deceased for August 2003 shows that the monthly salary payable to the deceased was Rs.7842/-. He pointed out that no deductions could have been made from the said salary except for the amount payable on account of professional tax. He invited attention of the Court to a copy of the salary slip for August 2003. He submitted that the deductions made on account of installments of loan taken from the society, loan taken from the credit society, LIC premium, provident fund etc cannot be considered for calculating the multiplicand. He submitted that by deducting a sum of Rs.200/- on account of professional tax, the monthly income ought to have been taken at Rs.7642/-. He submitted that as the number of dependents were four, a deduction of ¼ ought to have been made on account of personal expenditure of the deceased. He invited attention of the Court to the evidence of one Mr.Vijay Mokal, who was working as an Executive with Excel Industries Limited where 4 FA.1806.09 w xobst.4912.10 the deceased was employed. He pointed out that the deceased was in the permanent employment of the said Company as disclosed by the said witness. His submission is that in view of the decision of the Apex Court in the case of Sarla Verma (Smt) and others Vs. Delhi Transport Corporation and another [(2009) 6 Supreme Court Cases 121] , 50% of the monthly income ought to have been added on account of prospects of increase the income in future. He submitted that the claim made by the original claimants in the claim petition was in the sum of Rs.12,00,000/- and in fact the compensation granted is on the lower side. 5 I have given careful consideration to the submissions. As far as the factum of accident and death of the deceased is concerned, there is no dispute. The learned Member of the Tribunal has considered the spot Panchanama and the FIR on the basis of which a conclusion has been recorded that the person plying M-80 moped suddenly took a turn and gave a dash to another motorcycle. After considering the documents on record, the learned Member of the 5 FA.1806.09 w xobst.4912.10 Tribunal came to the conclusion that the accident occurred due to default on the part of the person plying M-80. The Tribunal has considered the evidence of the driver of the M-80 moped. He admitted that while taking turn, his moped dashed against a Pulsar Motorcycle. After considering his evidence, the Tribunal recorded a finding that while suddenly taking a turn, he could not control his speed. The Tribunal noted the admitted position that he was holding a learner's licence. Therefore, there is no reason to disturb the said finding. 6 The Respondent Nos.1 and 2 examined one Mr.Vijay Mokal, an Executive of the Employer – Company of the deceased. He stated that the deceased was working as an operator and he was in the permanent employment of the Company. The salary slip for August 2002 shows that total emoluments payable to the deceased were Rs.7842.25. The deductions shown in the pay slip are on account of advance paid to the deceased, canteen charges, society share charges, installments of loan and amount payable to the credit society. These deductions cannot be taken into consideration for 6 FA.1806.09 w xobst.4912.10 determining the income for the purposes of calculating multiplicand. Only a sum of Rs.200/- will have to be deducted. Thus, the income will have to be taken at Rs.7642/- per month. Number of dependents are four and therefore, ¼ deduction will have to be made on account of personal expenditure of the deceased. Thus, the monthly dependency will be Rs.5731.50. The age of the deceased was 37 years. In view of the decision of the Apex Court in the case of Sarla Verma (supra), the multiplier of 16 will have to be applied. Thus, the total loss of dependency will be Rs.11,00,448/-. 7 There is no cross-examination made of the witness Mr.Mokal on his statement that the deceased was in the permanent employment. If 30% of the monthly income is added towards future prospects of earning, the monthly income after adding 30% will be Rs. 9934.6. After deducting ¼, the monthly dependency will be Rs. 7450.95. Hence, the total compensation will be Rs.14,30,582.40 (7450.95x12x 16). The compensation amount will exceed a sum of Rs. 12,00,000/-, which is the amount claimed in the claim application. 7 FA.1806.09 w xobst.4912.10 Therefore, the Respondent Nos.1 to 4 will be entitled to compensation of Rs.12,00,000/-, which will be inclusive of no fault liability. Thus, they will be entitled for enhancement of Rs.3,65,000/-. Interest has been granted at the rate of 7% per annum. The interest will be payable at the same rate of the enhanced amount. 8 Hence, I pass the following order: i. The First Appeal is dismissed ; ii. The Cross-Objection (stamp) No.4912 of 2010 is allowed ; iii. In addition to the compensation granted under the impugned judgment and award, the Respondent Nos.1 to 4 shall be entitled to additional amount of Rs.3,65,000/- with interest at the rate of 7% per annum from the date of filing of the claim petition till the deposit of the said amount ; iv. The Appellant shall deposit the additional amount within a period of three months from today with 8 FA.1806.09 w xobst.4912.10 the concerned Tribunal ; v. After the Appellant deposits the said amount, the Tribunal will pass an appropriate order regarding disbursement/ withdrawal/ investment of the said amount in accordance with law ; vi. Pending civil applications do not survive and the same are disposed of ; vii. A sum of Rs.25,000/- deposited in the appeal shall be transferred to the concerned Tribunal ;and viii. There will be no order as to costs in appeal and cross-objection. [ A.S.OKA, J ]