1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.192 OF 1996 1 Sunderabai Kacharu Rathod, age: 22 years, Occ: Household; 2 Yamunabai Kacharu Rathod, age: 3 years, Occ: Nil, minor; 3 Tulshiram Kacharu Rathod, age: 7 years, Occ: Nil, minor; Nos.2 and 3 minor, through their mother and legal guaridan - appellant no.1. All R/o Ganeshnagar, at Post: Umapur, Tq.Gevrai, Dist.Beed. Appellant Versus 1 Sou.Jankibai Pandurang Deokar, age: adult, Occ: Business, R/o Takali, Tq.Kopargaon, District Ahmednagar. 2 Ramdas Trimbak Kardak, age: adult, Occ: Driver, R/o Dhamori, Tq.Kopargaon, District Ahmednagar. 3 The Oriental Assurance Company Ltd., 1021, Main Road, Sangamner, District Ahmednagar. 4 Rambhau Balaji Rathod, age: 50 years, Occ: Nil, R/o Ganeshnagar, at Post Umapur, Tq.Gevrai, Dist.Beed. 2 5 Deoubai Rambhau Rathod, age: 47 years, Occ: Household, R/o Ganeshnagar, at Post Umapur, Tq. Georai, District Beed. Respondents Mr.V.S.Bedre, advocate for appellants. Mr.C.V.Korhalkar, advocate for Respondents No.1 & 2. Mr.P.P.Bafna, advocate for Respondent No.3. Mr.D.R.Jaybhar, advocate for Respondents No.4 & 5. CORAM: R.M.BORDE, J. DATE : 16 th February, 2010. ORAL JUDGMENT: 1 Appeal is presented by claimants raising challenge to the judgment and award dated 12.12.1995, passed by Member, Motor Accident Claims Tribunal, Ahmednagar in M.A.C.P. No.200 of 1991, on the ground of inadequacy in awarding compensation. 2 Deceased Kacharu was working as labourer and was loading sugarcane in a truck bearing No.MWA-7419 in the field on 12.05.1991 at about 10 a.m. It is stated that at the relevant time, deceased was at the rear side of truck and original opponent no.2, who was driver of said truck, without prior caution, had driven the truck in reverse gear, as a result of which, deceased received dash and got crushed under the wheels of truck and met with death. According to claimants, opponent no.2 had driven the truck, belonging to opponent no.1, in a rash and negligent manner causing death of deceased. Deceased was a young man of 24 years and was of sound health. It is contended that he could have survived up to the age of 70 years. He was the only bread earner in the family. As such, claim petition is 3 presented seeking compensation from the owner and driver of the truck as well as insurer of the vehicle. It is contended that deceased was getting income of Rs.1400/- per month as labourer and considering all the relevant circumstances, compensation claimed by claimants, who are his wife, two children and parents, amounting to Rs.2,00,000/-. 3 The claim was opposed by opponents no.1 & 2 , driver and owner of the truck by presenting their written statement. The quantum of income of deceased is disputed by contesting opponents. Opponents No.1 and 2 also denied their liability to pay compensation. 4 Opponent No.3 – Insurance Company resisted the claim by filing written statement at Exhibit-21. The vehicle having been insured with insurance company is admitted by concerned opponent. However, it is denied that accident had occurred as a result of rash and negligent driving of driver of the vehicle. The Insurance Company has also denied that deceased was 25 years of age and his earning was Rs.1400/- per month. The Insurance Company, thus, denied its liability and prayed that petition be dismissed. 5 Learned Member, Motor Accident Claims Tribunal, after receiving evidence led by the parties, came to the conclusion that claimants have established their case and taking into account monthly income of deceased to be Rs.750/- and deducting 1/3 rd amount towards personal expenses of deceased, the Tribunal arrived as regards dependency of claimants at the rate of Rs.500/- per month. The Tribunal, on application of multiplier of 15, has determined amount of compensation payable to claimants to the tune of Rs.90,000/-. Further sum amounting to Rs.10,000/- was 4 awarded in view of ruling of the High Court in the case of Sunanda Vs. Baburao, reported in 1986 ACJ 734. It is also held by the Tribunal that claimants no.2 and 3 would be entitled to receive Rs.2000/- each towards loss of love and affection. The Tribunal, as such, awarded compensation to the tune of Rs.1,04,000/- along with interest at the rate of 12% p.a. From the date of filing claim petition till realisation of the amount. It is further directed by the Tribunal that amount of Rs.25,000/- paid towards no fault liability be deducted from total compensation receivable by claimants. 6 Claimants have approached this Court questioning determination of compensation by the Tribunal on the ground of inadequacy. 7 I have heard arguments advanced by learned Counsel for respective parties, perused judgment and award passed by Tribunal as well as evidence placed on record by the parties. 8 Shri Bedre, learned Counsel appearing for claimants, contends that in the absence of there being any evidence in respect of earnings of deceased, even considering deceased was working as a labourer, the Tribunal ought to have considered his income at least to be Rs.100/- per day and ought to have determined compensation accordingly. A grievance is also made in respect of application of multiplier as well as deduction proposed by Tribunal on account of personal expenses of deceased. 9 Shri Bafna, learned Counsel appearing for Respondent No.3- Insurance Company, has vehemently opposed arguments advanced by appellants and has supported the judgment and award passed by Tribunal. 5 According to learned Counsel appearing for Insurance Company, that so far as daily income of deceased is concerned, the Tribunal has taken a liberal view of the matter and same needs no interference. He further contends that application of multiplier of 15 is on the basis of principles laid down by the Apex Court and same cannot be questioned. It is also contended that making deduction to the extent of 1/3 rd is the standard practice and same is required to be followed in this matter also. 10 Shri Bedre, learned Counsel for appellants, seeks leave to place reliance on the judgment of the Apex Court in the case of National Insurance Company Limited Vs. Khimlibai and others, reported in (2009) 10 SCC 648, and contends that the Tribunal, in the absence of there being any evidence led by claimants in respect of earnings of deceased, ought to have calculated income of deceased at the rate of Rs.100/- per day. In the reported matter, deceased was working as a carpenter and the Apex Court, on the basis of hypothecation, presuming that deceased was securing job for six months in a year and for rest of the period was serving as a labourer in his field, determined daily income at the rate of Rs.100/-. Learned Counsel Shri Bedre contends that same analogy applies to the instant case. 11 I am afraid, the argument cannot be accepted for the simple reason that in the instant matter, deceased was admittedly working as labourer. The wages of labourer during relevant period, even as per guidelines prescribed by State Government under Minimum Wages Act, were not more than Rs.25/- per day. Learned Counsel Shri Bafna contends that wages prescribed under Minimum Wages Act, during relevant period, were only Rs.21/- per day. In this view of the matter, computation arrived at by the Tribunal in respect of daily earning of deceased at the rate of Rs.25/- appears 6 to be proper and needs no interference. 12 That, so far as application of proper multiplier is concerned, Shri Bedre, learned Counsel appearing for appellants, contends that application of appropriate multiplier, in the facts and circumstances of this case, would be 17 and the Tribunal has erred in applying multiplier of 15. 13 Learned Counsel Shri Bafna contends that application of multiplier shall be on the basis of all relevant circumstances and as per guidelines prescribed in the case of General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Susamma Thomas, reported in (1994) 2 SCC 176. Learned Counsel places reliance on the judgment of Apex Court in the case of National Insurance Co.Ltd. Vs. M/s Swaranlata Das and others, reported in AIR 1993 SC 1259, wherein age of deceased in the reported matter was 26 years and the Court, while dealing with the matter, has deemed it fit to apply multiplier of 15. Similarly, in the matter of Smt.Sarla Dixit and another Vs. Balwant Yadav and others, reported in AIR 1996 SC 1274, wherein deceased met with death at the age of 27 years, the Apex Court considered it appropriate to apply multiplier of 15. 14 The controversy in respect of fixing multiplier based on guidelines laid down by the Apex Court in various judgments has been set at rest by the Apex Court while dealing with the case of Sarla Verma (Smt) and others Vs. Delhi Transport Corporation & another, reported in (2009) 6 SCC 121. The Apex Court has taken into account directions issued in respect of prescribing multiplier, given in the judgments, namely Susamma Thomas (1994) 2 SCC 176), Trilok Chandra (1996) 4 SCC 362 and Charlie (2005) 10 SCC 720). In paragraphs no.41 and 42 of the judgment, the Apex Court has 7 observed, thus: “41 Tribunals/courts adopt and apply different operative multipliers. Some follow the multiplier with reference to Susamma Thomas [set out in Column (2) of the table above]; some follow the multiplier with reference to Trilok Chandra, [set out in Colun (3) of t he table above]; some follow the multiplier with reference to Charlie [set out in Column (4) of the table above]; many follow the multiplier given in the second column of the t able in the Second Schedule of the MV Act (extracted in Column (5) of t he table above]; and some follow the multiplier actually adopted in the Second Schedule while calculating the quantum of compensation [set out in Column (6) of the table above}. For example if the deceased is aged 38 years, the multiplier would be 12 as per Susamma Thomas, 14 as per Trilok Chandra, 15 as per Charlie, or 16 as per the multiplier given in Column (2) of the Second Schedule to the MV Act or 15 as per the multiplier actually adopted in the Second Schedule to the MV Act. Some tribunals, as in this case, apply the multiplier of 22 by taking the balance years of service with reference to the retiring age. It is necessary to avoid this kind of inconsistency. We are concerned with cases falling under Section 166 and not under Section 163-A of the MV Act. In cases falling under Section 166 of the MV Act, Davies method is applicable. 42 We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, this is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 40 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 8 to 70 years.” 15 In view of the directives issued by the Apex Court in the recent judgment, I am of the view that considering the age of deceased, which can be classified between age group 26 to 30 years, proper multiplier would be 17. In the instant matter, although claimants have claimed that deceased was 24 years of age, however, in post mortem examination, his age is shown to be 30 years, whereas, the Tribunal, on consideration of evidence, has reached the conclusion that deceased might be of 25 years of age at the time of his death. Considering relevant circumstances, therefore, I am of the opinion that proper multiplier, that can be applied in the instant case, would be 17. 16 Next is the question in respect of making appropriate deduction from the income of deceased while considering dependency of claimants. In Susamma Thomas case (1994) 2 SCC 176, it was observed that in the absence of evidence, it is not unusual to deduct 1/3 rd of the gross income towards the personal living expenses of the deceased and treat the balance as the amount likely to have been spent on the members of the family/dependants. In Trilok Chandra’s case, it is held that if the number of dependants in the family of deceased was large, in the absence of specific evidence in regard to contribution to the family, the Court may adopt the unit method for arriving at the contribution of the deceased to his family. By this method, two units are allotted to each adult and one unit is allotted to each minor, and total number of units are determined. Then the income is divided by the total number of units. The quotient is multiplied by two to arrive at the personal living expenses of the deceased. In Fakeerappa Vs. Karnataka Cement Pipe Factory, reported in (2004) 2 SCC 473. the Apex 9 Court found it appropriate to direct deduction to the extent of 50%. While considering different views and methodology accepted in different matters, the Apex Court has observed in paragraph 30 of the judgment, thus: “30 Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3 rd) where the number of dependent family members is 2 to 3, one-fourth (1/4 th) where the number of dependent family members is 4 to 6, and one-fifth (1/5 th) where the number of dependent family members exceeds six.” 17 Taking into account guidelines prescribed by the Apex Court in Sarla Verma’s case (cited supra), and applying same to the instant matter, I am of the view that deduction to the extent of 1/4 th would serve the purpose. It is pointed out that there are five claimants who presented claim petition before the Tribunal. Claimants no.1 to 3, are widow and children of deceased and claimants no.4 and 5 are parents of deceased. It is contended by claimants, in the claim petition, that all the claimants were dependent upon income of deceased. There does not appear to be any controversy in respect of said contention raised by claimants in the claim petition. It would, therefore, be permissible to consider all the claimants as dependents of deceased. Therefore, proper deduction from the amount of compensation, which can be arrived at after considering guidelines prescribed by Supreme Court, would be to the extent of 1/4 th. 18 Accepting income of deceased, as arrived at by the Tribunal, 10 at the rate of Rs.750/- per month, deceased would have spent 1/4 th amount out of total income i.e. to the extent of Rs.187.50 for himself. Thus, dependency for the purposes of determination of compensation comes to Rs.562.50. The annual income, which can be computed for the purposes of awarding compensation, is Rs.6750/-. By applying multiplier of 17, proper compensation receivable by claimants comes to Rs.1,14,750/-. The Tribunal has awarded compensation to the tune of Rs.90,000/- in favour of claimants. Claimants, thus, would be entitled to receive balance of compensation amounting to Rs.24,750/-. The additional amount of compensation, which has been directed to be enhanced, shall carry interest at the rate of 9% p.a. from the date of presentation of claim petition till realisation of the amount. The interest payable to the claimants is being awarded in view of the guidelines prescribed by the Apex Court in the matter of Supe Dei (Smt) and others Vs. National Insurance Company Limited and another, reported in (2009) 4 SCC 513. 19 For the reasons stated above, appeal is partly allowed in above terms. In the facts and circumstances of this case, there shall be no order as to costs. (R.M.BORDE) JUDGE ******* adb/fa19296