spb/- 1 Jfa903-96.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION FIRST APPEAL NO. 903 OF 1996 1 Shri Laxman Gangaram Mehar ] 58 years, occ. Retired, since deceased ] through his Heirs & Legal representatives ] 1/1 Sou. Kalawati Laxman Meher, 61 yrs. ] Household, R/at At & Post-Khapa, ] Tal. Soner,Dist. Nagpur 441101 ] ] 1/2 Sou. Vandna Vinod Mahajan, Aged 31 ] years, housewife, R/at Upadhya Rd, ] Coal Depot Mahal, Nagpur ] ] 1/3 Shri Sunil Laxman Meher, 25 years, ] Occ. Unemployed, address is same as ] of 1/1. ] ] 1/4 Sou. Kumudini Dinkar Vaidya, ] Aged 38 yrs. housewife, R/at. plot ] no.15, Road no. 9, Vishwakarma ] Nagar, Nagpur 440027. ] ] 2 Sou Kalawti Laxman Mehar ] 49 years, Household. ] 3 Kumari Vandana Laxman Meher ] aged 17 yrs. Occ. Education. ] 4 Kumar Sunil LaxmanMeher, ] ... APPELLANTS. 14 years Occ. Education. ] Nos. 3 and 4 being minors, represen- ] ted by their guardian father no.1 ] All residing of at & Post Khapa, Tal. ] Savner, Dist. Nagpur. V/s. spb/- 2 Jfa903-96.sxw 1 Kulwantsingh Harneksingh Sardar ] 25 yers, Driver, r/o. Mulund Colony ] Bombay. ] 2 Ranjitsing Amrutising Gill ] Major, Truck Owner R/o. No.38, ] Swami Vivekanand Nagar, ] CIDCO, Nashik, Dist. Nashik. ] 3 The New India Assurance Co. Ltd., ] ... Respondents. Unit 110000, Emca House, Ist floor, ] 289, Shahid Bhagatsing Road, ] Bombay-1. ] --- Ms. Ujwala D. Sawant i/by R.V. Govilkar for the Appellants. . Ms. Urmila K. Sanil for the Respondents. ----- CORAM : D. G. KARNIK, J. DATE : 04th FEBRUARY, 2011. ORAL JUDGMENT : 1 This Appeal is directed against the Judgment and Order dated 5th May, 1994 passed by the Member, Motor Accidents Claims Tribunal, Nashik, (for short “the Tribunal”) partly rejecting the claim of the appellants for compensation. 2 Anilkumar Meher (hereinafter referred as “the deceased”) died in a vehicular accident on 21st March, 1992. The original appellant no.1 is his father, the appellant no.2 is his mother and the appellant nos.4 and 3 are spb/- 3 Jfa903-96.sxw his brother and sister respectively. They have again been brought on record as heirs of the appellant no.1, who died during the pendency of this appeal. The respondent no.1 is the driver of the offending vehicle, the respondent no.2 is the owner of the offending vehicle (truck) and the respondent no.3 is the Insurance Company. 3 On 21st March, 1992 the deceased alongwith his friend Lahanu Kandalkar (PW-2) was walking on foot towards ST Bus stand of Pimpalgaon on Bombay -Agra Road. Both of them were walking at the left edge of the road. Lahanu was on the left and the deceased was on the right side of Lahanu. At that time one truck, bearing registration no. MWV-8685, belonging to respondent no.2 and driven by respondent no.1 came from behind and hit the deceased as well as to his friend Lahanu. Both of them fell on road and sustained injuries and were taken to a government dispensary/ hospital at Pimpalgaon Baswant. On examination, the doctor declared that the deceased was brought dead. His friend Lahanu was given treatment as an indoor patient. The police came and recorded his statement in the hospital. In his statement Lahanu narrated how the accident had occurred and how the truck came from behind and gave dash to them while they were walking on the left side of the road. spb/- 4 Jfa903-96.sxw 4 The appellants thereafter filed a claim for compensation before the Motor Accidents Claims Tribunal, claiming Rs. Four lakhs as compensation. After considering the oral and documentary evidence adduced on record, the tribunal came to the conclusion that the respondent no.1 who was the driver of the truck belonging to the respondent no.2 had driven the vehicle rashly and negligently and his rash and negligent driving had resulted in the death of the deceased. The tribunal held that the appellants were entitled to a compensation of Rs. 1,20,000/- inclusive of no fault liability. 5 The respondents have accepted the award and have not challenged it either by filing an appeal or by filing any cross-objections. The appellants, however, have filed the appeal for enhancement of the compensation. 6 PW-2 -Lahanu was an eye witness to the incident. He has deposed on oath that he and the deceased were walking on foot on left side of the road when the truck driven by respondent no.1 came from behind and gave a dash to them. He has also stated that the truck was driven rashly and negligently. His evidence about negligence of the driver (respondent no.1) has not been shattered in the cross-examination. The evidence of the spb/- 5 Jfa903-96.sxw eye witness, who also was injured, shows that the truck driver was clearly negligent in driving the truck. The Tribunal has recorded a finding of negligence of the truck driver. The learned counsel for the respondent did not address me on the issue of negligence and in my view rightly so. 7 The learned counsel for the appellants submitted that the compensation awarded was too low. The deceased was holding a Master Decree in Agricultural and was employed in Dinee Chemicals Private Limited on a monthly salary of Rs.2500/- plus allowances such as T.A. & D.A. A salary certificate was produced by the appellants on record. Besides, they also examined Chandrakant Digambar Gupte, PW-6, the Managing Director of Dinee Chemicals Pvt. Ltd., as a witness. PW-6 stated on oath that the deceased was employed on a salary of Rs.2500/- plus allowances like T.A. & D.A.. The Tribunal held that the deceased was a bachelor aged of 24 years of age at the time of his death. The Tribunal held that the deceased was contributing Rs.1000/- per month towards maintenance of the appellants and held his annual contribution to the family was Rs. 12,000/- per annum. The Tribunal then applied multiplier of eight years for the purpose of calculating the compensation and held that the appellants were entitled to a compensation of Rs. 96,000/- towards the loss of support. In addition, the Tribunal awarded spb/- 6 Jfa903-96.sxw compensation of Rs. 24,000/- towards loss of love and affection and funeral expenses etc.. 8 Sofar as a compensation of Rs.24,000/- towards loss of love and affection, funeral expenses etc. is concerned the amount is not challenged before me by the counsel for the appellants and no cross- objections have been filed by the respondents also regarding this amount and hence, the amount of Rs.24,000/- towards loss of love and affection and funeral expenses etc. needs no modification. 9 As regards the amount of compensation towards loss of earning and contribution to the family, the learned counsel for the appellants relying upon the decisions of the Supreme Court in the case of Sarla Verma vs. Delhi Transport Corporation , [(2009) 6 Supreme Court Cases 121] and in the case of Reshma Kukmari vs. Madan Mohan [(2009 (13) SCC 422] submitted that the Tribunal erred in holding the contribution of the deceased to the family was Rs.1000/- per month only. She submitted that out of a salary of Rs.2500/- only 1/3rd amount could have been deducted for personal expenses. Besides, apart from the salary, the deceased was entitled to T.A. & D.A. which was variable and as the deceased was on a sales job, he was getting sumptuous amount as travelling allowance and spb/- 7 Jfa903-96.sxw daily allowance (T.A. & D.A.) and was meeting his day to day expenses from that amount. She further submitted that the Tribunal erred in applying multiplier of 8 years only for the purpose of considering contribution to the family. According to her, the deceased was only 24 years of age at the time of his death and therefore, multiplier applied should have been 17 to 18. 10 Per contra, the learned counsel for the respondents submitted that a contribution of Rs.1000/- per month (Rs. 12,000/- per year) to the family has been correctly arrived at by the Tribunal. The deceased was a bachelor and since he was living alone his personal expenses were likely to be more and the Tribunal has committed no error in holding that the deceased must be spending Rs. 1500/- per month out of his salary on himself and contributing only Rs. 1000/- per month out of salary of Rs. 2500/- p.m. for maintaining the family. She further submitted that the multiplier of 8 applied in the present case was proper. While choosing multiplier not only the age of the deceased but also the age of the parents must be considered where the dependency is of the parents and siblings and not of the wife and children. In support, she referred and relied on a decision of the Supreme Court in the case of U.P.S.R.T.C. vs. Trilok Chandra & Ors., 1996 (4) S.C.C. 362. spb/- 8 Jfa903-96.sxw 11 In the case of Sarla Verma (supra) the Apex Court has considered the factors to be taken into consideration for deduction for personal and living expenses which the deceased would have incurred on himself. The case where the deceased was a bachelor has been considered by the Supreme Court in para 32 of its decision which reads thus : “32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependent, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.” Though the court has considered that ordinarily in case of a bachelor, it may be taken that he spends 50% on himself and his contribution to the family is only 50% of the earnings, the court has added a word of caution; where the family of a bachelor is large and dependent on the income of the deceased, his personal and living expenses may be restricted to one third spb/- 9 Jfa903-96.sxw and contribution to the family may be taken as two-third. In the present case, though the deceased was a bachelor, his family was large and dependent on him. Besides the mother, his minor brother and sister were also dependent on him. His father (since deceased) was earning a meagre pension of Rs.700/- which was barely sufficient for himself. It can be reasonably assumed that the mother as well as the two minor siblings were dependent on the deceased. The salary certificate issued by the employer and evidence of the employer does show that apart from monthly salary of Rs. 2500/- the deceased was entitled to T.A. & D.A.. Considering the sales job in which the deceased appears to be engaged, the income by way of T.A. & D.A. was likely to be substantial. Taking into consideration these aspects, it may be reasonably assumed that the deceased was spending about 40% of the basic salary plus entire T.A. and D.A. on himself and was contributing 60 % of his basic salary for the family. This works out to contribution Rs. 1500/- per month equivalent to Rs. 18000/- per year for the family. 12 It is true that the decision of the Supreme Court in the case of Sarla Verma (supra) was not available before the tribunal when it decided the matter. However, taking into consideration the law as declared by the Supreme Court in the case of Sarla Verma (supra) and taking into spb/- 10 Jfa903-96.sxw consideration special facts and circumstances of the case, in my view, the decision of the tribunal in regard to the contribution of the deceased to the family of Rs. 1000/- per month is required to be modified. I accordingly hold that the contribution of the deceased to the family was Rs.1500/- per month i.e. Rs. 18000/- per annum. 13 It may also be relevant at this stage, to refer to the decision of the Supreme Court in the case of Reshma Kumari vs/ Madan Mohan (supra). In paragraph 34 of the decision the Supreme Court has held that taking into consideration the changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification, his past performance and other relevant factors, namely, the higher salaries and perks which are being offered by the private companies in the present days. I have not taken into consideration the future prospects because in the present case instead of allowing the deduction to the extent of Rs.50%, I have allowed the deduction only to the extent of 40% for personal expenses of the deceased and that takes care of possibility of future prospects. 14 As regards multiplier, not only it is the age of the deceased has to be spb/- 11 Jfa903-96.sxw taken into consideration at the time of his death but also the age of the dependents, in particular the age of parents who are dependent has to be taken into consideration. The minors/ siblings would be dependent for few years. Life expectancy of the parents especially the non-earning mother must also be taken into consideration while considering how many years the contribution by the deceased towards the parents would have continued. In the present case, the father was aged of about 58 years at the time of the death of the deceased and his mother was aged of about 49 years. As the father was not dependent, the age of the mother is relevant. She would have continued to be dependent on the deceased for a period of not less than 12 to 15 years. Taking into consideration dependency and contribution that would be reduced on siblings attaining majority, I consider the lower multiplier of 12 as appropriate. The multiplier in the present case should be 12 instead of 8 as held by the Tribunal. Taking into consideration the aforesaid aspects of the case, the appropriate compensation in the present case would be Rs.18000/- per year multiplied by 12 years dependency equal to Rs. 2,16,000/-. In addition to the aforesaid amount, a sum of Rs. 24,000/- is added for loss of love and affection and funeral expenses etc. as awarded by the Tribunal. The total compensation thus comes to Rs. 2,40,000/-. The Tribunal has awarded interest at the rate of Rs. 12% per annum on the amount of spb/- 12 Jfa903-96.sxw compensation. No cross- objections have been filed. I see no reason to modify the rate of interest awarded by the Tribunal. 15 For these reasons, the Appeal is required to be allowed partly. Hence, I pass the following order : ORDER i Appeal is partly allowed. ii The impugned order is set aside and it is ordered that the respondents shall pay to the appellants a sum of Rs.2,40,000/- inclusive of no fault liability together with interest at the rate of Rs. 12% per annum from the date of the appeal dated 11.01.1992 till realization of the amount. [D.G. KARNIK, J.]