1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY : NAGPUR BENCH : N A G P U R. FIRST APPEAL No. 572 OF 1991 WITH CROSS-OBJECTION St.No. 9834/91 F.A. No. 572/91 1. The Oriental Fire & General Insurance Co. Ltd., Branch Gondia. 2. Hasanand P. Gopulani, Truck owner, r/o Civil Lines, Gondia. 3. Kanhaiyalal s/o Thanu Lanjewar, r/o Kongargaon (Tirora Road), Gondia. ... APPELLANTS. -VERSUS - 1. Smt. Rajkumari wd/o Karamchand Sangatani, aged 27 years, Occ.: Household. 2. Vijaya s/o Karamchand Sangatani, aged 10 years, Occ.: Student. 3. Rekha d/o Karamchand Sangatani, aged 8 years. 4. Anita d/o Karamchand Sangatani, aged 6 years. 5. Ajaya s/o Karamchand Sangatani, aged 4 years. Nos. 2 to 5 minors through respondent no.1 mother natural guardian, 2 all r/o Gondia. ... RESPONDENTS. .... Mr. A.R. Godbole Advocate for Appellant no.1. None for the Respondent though served. .... Cross-Objection St.No.9834/91 The Oriental Fire & General Insurance Co. Ltd., Branch Gondia. ... Appellant/NA. - VERSUS - 1. Smt. Rajkumari wd/o Karamchand Sangatani, aged 27 years, Occ.: Household. 2. Vijaya s/o Karamchand Sangatani, aged 10 years, Occ.: Student. 3. Rekha d/o Karamchand Sangatani, aged 8 years. 4. Anita d/o Karamchand Sangatani, aged 6 years. 5. Ajaya s/o Karamchand Sangatani, aged 4 years. Nos. 2 to 5 minors through respondent no.1 mother natural guardian, all r/o Gondia. 6. Hasanand P. Gopulani, Truck owner, r/o Civil Lines, Gondia. 7. Kanhaiyalal s/o Thanu Lanjewar, r/o Kongargaon (Tirora Road), Gondia. ... RESPONDENTS/X-Objectors (Res. 1 to 5). 3 Mr.Vishwas Kukday Advocate for Cross-objectors/Res. 1 to 5. Mr.A.R.Godbole Advocate for N.A. no.1/appellant no.1. .... CORAM : A.B. CHAUDHARI, J. DATE : 16 th DECEMBER, 2009. ORAL JUDGMENT : The present appeal can be disposed of by the common judgment with the Cross-objection filed by the original claimants. 2. The appellant-Insurance Company as well as appellants no.2 and 3 have put to challenge the impugned judgment and Award dated 22.10.1990 in Claim Petition No.11 of 1986 passed by the Motor Accident Claims Tribunal, Bhandara, directing the appellants to pay jointly and severally a sum of Rs.2,70,000/- with 12% interest per annum to the original claimants. 3. In support of appeal, Mr.Godbole learned counsel for the appellant/Insurance Company argued that the Tribunal has wrongly adopted the multiplier of 40 having been impressed with the fact that the deceased was only of 30 years, which is wholly impermissible since the Apex Court has held that the maximum multiplier could be 18. He then argued that as per Schedule to the Motor Vehicles Act the multiplier that could be applied in this case would be 17 and not above that. He further argued that the Tribunal itself has recorded a finding of fact that the 4 deceased was having income of Rs.1500/- per month as per the income tax assessment orders. The Tribunal erred in not deducting 1/3rd amount from the said amount towards personal expenditure, but has taken into consideration the entire amount for deciding the dependency. According to him, Rs.1,000/- per month could be the dependency after deduction of 1/3rd amount and therefore this Court should reduce the compensation awarded by taking the dependency at Rs.1,000/- and by adopting the multiplier of 17. He urged that there is a finding about contributory negligence of deceased and which finding of fact is based on evidence. According to him the deceased himself dashed against a wooden log due to high speed of scooter and thereafter came under the wheels of the truck. Thus there was clearly contributory negligence on the part of the deceased and the Tribunal was right in deducting 25% from the compensation payable. He therefore urged this Court to confirm the said finding. 4. Opposing the appeal preferred by the Insurance Company, Mr.Kukday argued that the grounds raised by the Insurance Company before this Court do not call for any interference since ultimately the amount of compensation ought to be near the amount which has been calculated and awarded by the Tribunal. As regards contributory negligence, Mr.Kukday urged that the finding is obviously wrong in view 5 of the fact that the paint of the scooter was found on a wheel of the truck and slapping penalty of contributory negligence on the deceased is wrong. He urged to remove the penalty of contributory negligence. 5. Mr.Kukday, learned counsel, in support of Cross-objection argued that the deceased left a widow and four children and he was doing the business of grocery and grain at Gondia and was only of the age of 30 years. He had very good chances of progressing in the business looking to his age and would have earned far more income and therefore the Tribunal erred in not awarding the entire compensation as claimed. Though the income tax assessment order shows annual income of deceased as Rs.18,000/-, the same need not be taken as correct income in the sense that lesser income is shown to the Income Tax Department. He urged that the Tribunal has erred in awarding less compensation and therefore the Cross-objection deserves to be allowed. 6. In opposition to the cross-objection, Mr.Godbole opposed the same and argued that the grant of compensation itself is on a higher side and therefore the cross-objection deserves to be dismissed. 7. I have heard learned counsel for rival parties for quite some time and I have also gone through the impugned judgment and Award. At the outset, I concur with the finding recorded by the Tribunal that the truck driver was negligent in driving the truck. Insofar as the finding 6 regarding contributory negligence on the part of the deceased is concerned, the Tribunal itself has recorded a finding that the spot panchanama shows that a wheel of the truck was having paint of the scooter which clearly means that the Scooter had come in contact with the wheels of the truck and that is why the paint was found on a wheel of the truck. This could have happened only after the truck dashed with the scooter from the front side. But the driver of the truck deposed that he was driving his truck at a speed of 20 km. per hour and according to him he could not stop the truck. The evidence of the truck driver is unbelievable as has been done by the Tribunal. No explanation has been furnished by the driver of the truck to show as to how the wheel of the truck got the traces of paint of the scooter. In absence of explanation, his evidence will have to be rejected outright. The story regarding dashing of scooter against the wooden log itself appears to be a figment of imagination. Under such circumstances, it is not possible to hold that the deceased-scooter driver was guilty of contributory negligence in any manner whatsoever and therefore differing with the finding recorded by the Tribunal I hold that the deceased could not be saddled with the penalty of having contributed to the accident in question. Consequently, deduction of 25% from total compensation payable cannot be allowed. 8. Analysing the pleadings, evidence and the findings recorded 7 by the Tribunal regarding income and dependency, I find that the income of the deceased with the Income Tax Department that was disclosed was Rs.18,000/- per year. The deceased was running grain and grocery shop at Gondia. The wife of the deceased claims in her evidence that deceased was paying Rs. 2000/- to Rs.2,500/- per month for family expenses. Looking to the nature of the business and the income shown to the Income Tax Department and the claim made by the wife, I find that the mean thereof will have to be taken into consideration which, in my opinion, comes to Rs.1500/- per month and that would be the correct dependency of the claimants. I, therefore, do not agree with the Tribunal which decided the dependency at Rs.750/- per month nor do I agree with Mr.Kukday, who wants me to take dependency at Rs.2,500/- per month. It is thus clear that the dependency will have to be arrived at Rs.1500/- per month. Apart from that, the deceased being of the age of 30 years, would have prospered well in his business and the earnings would have also increased. The multiplier of 40 adopted by the Tribunal is obviously wrong. In the instant case, the Tribunal ought to have adopted the multiplier of 17. In the result, the compensation payable would come to Rs.2,55,500/- taking the dependency at Rs.1500/- per month and using multiplier of 17. In addition Rs.2000/- towards funeral expenses, Rs. 5000/- towards loss of consortium and Rs.2500/- towards loss of estate, 8 i.e. total Rs.9,500/- will have to be awarded. The total thus comes to Rs. 2,65,000/-. No amount towards contributory negligence is required to be deducted. In view of the reasons for holding that Rs.2,65,000/- shall be the `just compensation’, I find no merit in the cross-objection also. 9. In the result, F.A. No. 572 of 1991 is partly allowed. Cross- objection St. No. 9834/91 is dismissed. The Award impugned shall thus read the figure of Rs.2,65,000/- in place of Rs.2,70,000/-. Rest of the Award stands confirmed. No order as to costs. JUDGE