1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE FIRST APPEAL NO.77 OF 1998 1. Bombay Transport Company 2. United India Insurance Co.Ltd. Appellants Vs. 1. Shri Madhukar Balkrishna Anekar 2. Smt.Shaila Madhukar Anekar Respondents Mr.Rajesh Datar for appellants. Ms.Vishranti Navale for respondents. CORAM: B.H.MARLAPALLE, J. March 25, 2008 ORAL JUDGMENT: 1. This appeal is directed against the award passed by the learned Member of the Motor Accidents Claims Tribunal, Thane on 2/1/1996 in Motor Accident Claim No.399 of 1990. The said claim was allowed partly and the appellants have been jointly and severally directed to pay an amount of Rs.2,10,000/- including of no fault liability and with interest at the rate of 12% per annum from the date of application i.e. 3/8/1990. It is admitted that the decretal amount has been deposited with the Tribunal and as required under Section 173 of the Motor Vehicles Act, 1988 ("the Act" for short), an amount of Rs.25,000/- has been deposited with the Registry 2 of this Court which has ben invested in fixed deposit from time to time. The last renewal of the deposit was for an amount of Rs.30,322/-. The appeal is filed jointly and the appellant no.1, who was opponent no.1 in the Tribunal, is the owner of the vehicle and the appellant no.2, who was the opponent no.2 before the Tribunal, is the insurer. 2. Devan, son of Shri Madhukar Balkrishna Anekar was crossing the traffic signal near the high way naka close to Nitin Company at about 6 p.m. on 3/2/1990 within the jurisdiction of Naupada Police Station, Thane and while doing so a tanker bearing Registration No.MHT 3178 dashed him and in the said accident he died. Madhukar and his wife Shaila filed MAC Application No.399 of 1990 against the appellants and claimed that the deceased was earning an income of Rs.5000/- per month and, therefore, they were entitled for compensation of Rs.5 lakhs. On behalf of the claimants Madhukar stepped in the witness box and also Baliram Karankal, the police constable who was on duty in the highway naka near Nitin Company when the accident had taken place was also examined as a second witness. The owner did not contest the claim but the Insurance company - opponent no.2 filed 3 its Written Statement at Exhibit 10A and contested the claim on various grounds. By considering the evidence, both oral and documentary, as well as the rival submissions made, the Tribunal was pleased to allow the application partly as noted hereinabove. So far as the appeal of the Insurance company is concerned, the same is required to be considered only on limited grounds available under Section 149(2) of the Act as has been held by a three-Judge Bench in the case of Sadhana Lodh Vs. National Insurance Co. Ltd. & anr. [(2003) 3 SCC 524] [(2003) 3 SCC 524] [(2003) 3 SCC 524]. Their Lordships in para 4 of the said judgment stated thus, "It is not disputed that under Section 173 of the Act, an insurer has right to file an appeal before the High Court on limited grounds available under Section 149(2) of the Act. However, in a situation where there is a collusion between the claimant and the insured or the insured does not contest the claim and further, if the Tribunal does not implead the insurance company to contest the claim, in such a situation it is open to an insurer to seek permission of the Tribunal to contest the claim on the ground available to the insured 4 or to a person against whom a claim has been made. If permission is granted and the insurer is allowed to contest the claim on merit, in that case it is open to the insurer to file an appeal against the award of the Tribunal on merits. Thus, in such a situation, the insurer can question the quantum of compensation awarded by the Tribunal." . None of the grounds reproduced hereinabove and laid down by their Lordships are made out on behalf of the insurance company i.e. appellant no.2 and, therefore, by following the said law the present appeal will have to be treated only by the appellant no.1 i.e. the owner of the subject vehicle. 3. Mr.Datar, the learned counsel for the appellant has referred to the depositions of the claimant no.1 - Madhukar and submitted that, (a) the deceased was a student of about 19 years of age. (b) The business firm i.e. Bombay Copra 5 Traders was started by the claimant and the claimant himself was running the said business. (c) The deceased was not contributing to the said business in any manner and, therefore, the Tribunal was in error in assuming the income of the deceased at Rs.2400/- per month. (d) The Tribunal ought to have held that the deceased was not earning any income and by following the law laid down in the case of Oriental Insurance Co. Ltd. vs. Syed Ibrahim & ors. [2007 ACJ 2816] [2007 ACJ 2816] [2007 ACJ 2816], the income of the deceased should have been calculated. As per Mr.Datar when the claimant had stated that the deceased was running the business and was earning Rs.5000/- per month, the Tribunal accepted the income at Rs.2400/- without any reliable evidence . . It requires to be noted that the fact of the accident and the involvement of the subject vehicle in the said accident has not been disputed. 6 4. In the evidence of the claimant no.1 documents with list at Exhibit 14 are brought on record before the Tribunal and Exhibit 25 is the school leaving certificate issued by Sau. A.K.Joshi English Medium School at Thane. As per the same the deceased was born on 23/9/1970 and he left the school on 31/5/1986 after he had appeared for the SSC examination held in March 1986. Thus on the date of the accident i.e. on 3/2/1990 he was more than 19 years of age and, therefore, was not a child. After passing his S.S.C. in 1986, he had passed his 12th standard and was at the relevant time a student of B.Com., first year. In the evidence of claimant no.1 it has come on record that the college timings of the deceased were between 7 to 10 a.m. and thereafter he used to be associated with the business. Mr.Datar referred to the following statement made by the deponent no.1 in his cross-examination in support of his contentions that it was the claimant no.1 who was running the business of Bombay Copra Traders and not the deceased: "At the time of the accident, I was engaged in Copra business. There are four or five 7 parties in Kerala, for which I was working as Commission Agent. P. Balkrishna, Radhika Traders, Kiran Trading Co., are the names of some of them. I do not remember other names. I intended to start my own business through my son. My son had no business contacts as he was a student. As I was commission agent for some parties in Kerala, I could not open the business in my name. The rent note is in my name. The rent note presented in the Court is between me and my son Deven." The witness further submitted that the rent agreement at Exhibit 19 had mentioned Rs.5000/- to have been received from Deven but it was a mere formality and the said agreement was executed as the licence was to be obtained in the name of Deven. . The above depositions would only indicate that the claimant no.1 was acting as a commission agent with some of the Copra (tender coconut) traders in Kerala and he wanted to start his own business but he could not do so. He, therefore, decided to start the business through his son. On record there are documents at Exhibit 16, Exhibit 17, Exhibit 18 which 8 go to show that licence under the Bombay Shops and Establishments Act was obtained by Bombay Copra Traders in the name of Shri Deven Madhukar Anekar in September / October 1989 and the said firm was shown to be a wholesale as well as retail distributor of copra. Exhibit 19 is the rent agreement between Bombay Copra Traders through Deven and the claimant no.1 as the landlord. This agreement was necessary to obtain the licence. At Exhibit 20 is a copy of the bank passbook of Current Account No.177 with Syndicate Bank and in the name of Bombay Copra Traders. The account seems to have been opened in September 1989 and it shows regular transactions of credits and debits. The cash was deposited anywhere from Rs.9000/- to Rs.31,000/- and DDs were obtained. Exhibit 21 collectively are the originals of pay-in-slips indicating the deposits made in the account of Bombay Copra Traders. Exhibit 22 are the documents indicating supplies made by some Commission Agents from Kerala in favour of Bombay Copra Traders. Exhibit 23 is the octroi receipt issued by the Municipal Corporation of Thane in the name of Bombay Copra Traders. At Exhibit 26 is a true copy of the profit proof for the period from 5/10/1989 to 6/10/1989 and it indicates that the net income of 9 Bombay Copra Traders during this period was Rs.1768/-. The record also shows that the sale proceeds in the month of September 1989 gave a net profit of Rs.2750/- to M/s.Bombay Copra Traders. 5. The claimant no.1 specifically stated that Deven was his only son and he wanted him to enter the copra distribution business in Thane city and more so because the claimant himself was a commission agent for procurement of copra from Kerala from various suppliers. It was thus natural for him and with his expertise in the procurement of copra, that he desired his son to enter the same business and if the father has taken certain steps like making the premises available, investing initial capital amount and helping the son even in procurement was just a natural assistance that the father was rendering so as to support his son in establishment and running of the business and it cannot be accepted that the deceased had no involvement in the activities of M/s. Bombay Copra Traders, a firm which was started in his name by his father. Though the claimant came out with a case of Rs.5000/- as monthly income, having regards to the document at Exhibit 26 and following the law laid down by the Apex Court in the case of 10 General Manager, Kerala State Road Transport Corporation, Trivendram Vs. Susamma Thomas (Mrs) and ors [(1994) 2 SCC 176] [(1994) 2 SCC 176] [(1994) 2 SCC 176] the Tribunal accepted the monthly income of the deceased at Rs.2400/- per month. No fault could be found with the Tribunal in that regard. The Tribunal presumed that the deceased would have married in another about eight years time and after his marriage the dependency of the parents would continue for another eight years or so. During the period of the deceased being unmarried (six years) the dependency of the parents was fixed at Rs.1600/- by deducting 1/3rd personal expenses of the deceased out of the monthly income of Rs.2400. Whereas for the second phase of eight years dependency was further reduced to 1/3rd thereby leaving 2/3rd for the son and the daughter-in-law and the multiplier accepted by the Tribunal is 14. Unfortunately no appeal has been filed by the claimants and more so when the new business cannot be estimated to be fixed and the business was at the infancy stage when Deven died. Be that as it may, I do not find any error made by the Tribunal in holding that the deceased was involved in the business of Bombay Copra Traders and he was earning a sum of Rs.2400/- per month. Hence the challenge to the 11 impugned award is unsustainable on any ground. 6. In the premises, this appeal fails and the same is hereby dismissed with costs. The amount deposited with the Tribunal be refunded to the claimants forthwith along with interest accrued, if any and unless the award is satisfied in its entirety, the appellants will not be allowed to withdraw the amount deposited in this Court. (B.H.MARL