-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1846 OF 2008 WITH CIVIL APPLICATION NO.3778 OF 2008 Oriental Insurance Co. Ltd. .. Appellant. Vs. Gangaram Devooram Darekar & Ors. .. Respondents. Mr.J.S.Chandnani for the appellant. Mrs.S.V.Sonawane for respondent nos.1 to 4. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. CORAM : B.H.MARLAPALLE & D.B.BHOSALE,JJ. DATED : 22ND SEPTEMBER, 2008. DATED : 22ND SEPTEMBER, 2008. DATED : 22ND SEPTEMBER, 2008. PC: PC: PC: . Heard Mr.Chandnani, the learned counsel for the appellant-insurance company. 2. This appeal is directed against the award dated 14.9.2007 passed by the learned Member of the Motor Accident Claims Tribunal, Mumbai in Claim Application No.13 of 2000. Sunil Gangaram Darekar, son of respondent nos.1 and 2 and husband of respondent no.3 died in an accident on 23.8.1999 at about 5.45 p.m. on Western Express Highway, Opp.Samrat Hotel. At the relevant time he was employed with Mahindra & Mahindra Ltd. as Machine Operator. He possessed the -2- qualification of S.S.C. and I.T.I. and had joined the company in 1984. The respondents, therefore, approached the Claims Tribunal in Claim Application No.13 of 2000 and prayed for compensation of Rs.25,00,000/- with interest and costs. 3. The insuranc company by filing its written statement at Exhibit-6 had opposed the claim though it admitted that motor tanker bearing No.MTT-6628 was insured with it and was involved in the subject accident. It was further contended that despite the fact that the driver was blowing horn the motor cyclist, all of sudden came from the rear side and dashed against the tanker. As per the insurance company, the motor cyclist was driving motor cycle bearing No.MH-02-W-3481 in rash and negligent manner and, therefore, the accident took place. In short, the insurance company claims contributory negligence on the part of driver of the tanker. 4. Before the tribunal the respondent no.3, the widow of the deceased examined herself at Exhibit-9 and Mr.Praful Ramchandra Pisat and Mr.Donat Sangtan Lobo were also examined as witnesses in support of the said claim. The documents like monthly salary certificate, post mortem report, death certificate and certificates of qualification etc. were placed on record. -3- 5. On the point of contributory negligence the tribunal did not accept the contentions of the insurance company as the driver of tanker was not examined nor did he bring any additional evidence in that regard. The tribunal referred to Exhibit-10 FIR and panchnama at Exhibit-11 and account of eye witness Shri Donat Lobo and rejected the claim of contributory negligence. 6. Coming to the issue of quantum of compensation the tribunal referred to the salary certificate at Exhibit-17 which indicated that last drawn salary of the deceased was Rs.11,440/- per month. P.W.1 had claimed that her husband was also working as L.I.C. agent and was earning Rs.1,000/- on that account, however, there was no documentary evidence placed on record in support of this claim and, therefore, the tribunal declined to accept it. After giving the benefit of statutory deductions the tribunal held that the deceased was drawing salary of Rs.11,000/- per month and 1/3rd of the same would be deducted for personal expenses of the deceased. The tribunal, therefore, held that the deceased was drawing the salary of Rs.11,000/- per month. Claimant No.1 - the father was 69 years of age whereas the mother was 62 years of age. The deceased has the minor son from -4- claimant no.3. At the time of accident the deceased was of 33 years of age and, therefore, the multiplier was fixed at 13. Thus, the total amount of compensation was calculated at 7300 X 12 X 13 = Rs.11,38,800/- in addition for loss of consortium Rs.10,000/-, loss of estate Rs.15,000/-, loss of love and affection Rs.10,000/- and funeral expenses of Rs.5,000/- has also been granted by the tribunal thus making total compensation of Rs.11,79,000/-. The amount of Rs.50,000/- was already granted as no fault liability under section 140 of the Motor Vehicles Act and the same was required to be deducted. 7. Having heard the learned counsel for the parties we are satisfied that the compensation amount as computed by the tribunal does not suffer from any infirmities or illegalities. Mr.Chandnani submitted that after deducting loan amount, the net salary of the deceased was only Rs.7,500/- per month and the tribunal was not right in taking net salary of Rs.11,000/- per month. We do not agree with the contentions that the loan instalment payable was required to be deducted for arriving at the net salary. The loan cannot be compared with statutory deductions like Provident Fund and Income Tax etc. On the point of contributory negligence as well as fixing multiplier at 13 we are satisfied that the tribunal was just and fair hence we -5- do not find any reason to entertain this appeal and it must therefore fail at the threshold. 8. The learned counsel for the appellant has placed before us the receipt of deposits and it appears that amount of Rs.17,59,215/- has been deposited with the Claims Tribunal on 27.8.2008. It is further submitted that amount of Rs.11,27,717/- as per claim and the amount of Rs.6,37,498/- is towards interest payment on the compensation amount. We have noted that Claimant No.4 is a minor and presently about 12 years of age. Claimant Nos.1 and 2 are in their advanced age i.e. 70 years and above and we, therefore, deem it appropriate that amount of Rs.59,215/- is allowed to be withdrawn by claimant no.3 thereby leaving behind an amount of Rs.17,00,000/-. We direct that this amount of Rs.17,00,000/- be invested in fixed deposit with the Nationalised bank and initially for a period of five years. The amount of Rs.7,50,000/- shall be invested in the name of Claimant No.4 and Claimant No.3 be shown as nominee and amount of Rs.7,50,000/- be invested in the name of Claimant no.3. The remaining amount of Rs.2,00,000/- shall be invested in the name of claimant nos.1 and 2 jointly. Claimant No.3 will be allowed to withdraw quarterly interest accuring on the amount invested in her name i.e. Rs.7,50,000/- and similarly, respondent nos.1 and 2 will be allowed to withdraw -6- quarterly interest accuring on the amount of Rs.2,00,000/- invested in their joint names. The interest that would be accruing on the investment made in the name of minor son be reinvested and will be at liberty to apply for withdrawal of suitable amount on attaining majority or any other contingency. The amount of Rs.25,000/- deposited with the Registry of this court be transferred with the Claims Tribunal for verification of the decretal amount. The balance amount, if any, be refunded to the insurance company. 9. Civil application does not survive and hence it is disposed accordingly. (D.B.BHOSALE,J.) (B.H.MARLAPALLE,J.) (D.B.BHOSALE,J.) (B.H.MARLAPALLE,J.) (D.B.BHOSALE,J.) (B.H.MARLAPALLE,J.)