1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.375 OF 1993 1. Smt.Sangeeta Nariandas Madhwani, 2. Ms.Bindu Nariandas Mandhwani, 3. Master Kishore Nariandas Madhwani, All r/o.Runwal Park, Unit No.5, Chembur Naka, Mumbai 400 071. Appellants VERSUS 1. S.Tarlochan Singh Sant Singh, A-112, Ram Galli No.5, Adarsh Nagar, Jaipur 302 004. 2. The Oriental Fire and General Insurance Co.Ltd; D.O.3, 4E/14, Azad Bhavan, Jhundewalan Extn. New Delhi 110 055. Respondents Mr.Ajit Manwari for the appellants. Mr.M.G.Barve for the respondent no.2. CORAM : A.S.OKA, J. DATE : 18th January 2010 JUDGEMENT :- 1. Heard learned counsel for the appellants and the learned counsel for the second respondent. The appellants are the claimants in a Claim Petition No.63 of 1986. The claim petition was filed on account of demise of one Naraindas in a motor accident on 15th November 1985. Naraindas was driving his own car. He was proceeding from Mumbai to Ahmadabad. A truck owned by the first 2 respondent gave a dash to the said car. As a result, Naraindas died on spot. The Tribunal, by the impugned award, came to the conclusion that the appellants will be entitled to total compensation of Rs.5,18,400/-. However, 50% deduction was made by the Tribunal on the ground that the deceased himself had contributed to the accident to the extent of 50%. The Tribunal granted usual amount of Rs. 15,000/-. 2. Three submissions have been made by the counsel for the appellants. The first submission is that the finding on the issue of negligence that the deceased has contributed to the accident to the extent of 50% is erroneous. The second submission is that the multiplicand applied by the Tribunal is on the lower side. The third submission is that interest ought to have been awarded from the date of accident and not from the date of award. The learned counsel for the second respondent supported the impugned judgement and award and submitted that the compensation awarded is reasonable and no interference is called for. 3. I have considered the submissions. The appeal already stands dismissed for non prosecution against the first respondent. In absence of first respondent, the finding on the issue of negligence cannot be disturbed inasmuch as if the first contention of the 3 appellants is accepted, a finding will have to be recorded that negligence was entirely on the part of driver of the vehicle owned by the first respondent. Such a finding cannot be recorded in absence of first respondent. 4. Now turning to the quantum of compensation, the Tribunal has taken the net income of the deceased at Rs.4,000/- per month. Reliance was placed on a letter of Income Tax Officer stating that the net income of the deceased in the assessment year 1984-85 was Rs. 15,956/-, the net income of the deceased in the assessment year 1985-86 was Rs.28,445/- and the net income of the deceased in the assessment year 1986-87 was Rs.47,633/-. The deceased died on 15th November 1985. For calculating the multiplicand, the learned Member of the Tribunal has taken the net income of the deceased for the assessment year 1986-87 as the basis. The figures of net income of the deceased as reflected from the income tax returns show that there was a very steady increase in the income of the deceased. The age of the deceased was 41 years. Considering the trend of the income as disclosed from the income tax returns, some increase ought to have been made on account of future prospects of earnings of the deceased. By adding 25%, the net income per month ought to have been taken at Rs.5,000/-. After deducting one third amount for personal expenditure of the deceased, the yearly dependency comes 4 to Rs.39,996/-. The yearly dependency can be taken at Rs.40,000/-. The learned Member of the Tribunal applied multiplier of 16. In view of the decision of the Apex Court in case of Sarla Varma and another Vs. Delhi Transport Corporation and another ([2009]6-SCC-121), the multiplier of 14 will have to be applied. Thus, the total dependency will be Rs.5.60 lakhs. To that amount, usual amount of Rs.15,000/- will have to be added. Thus, the total compensation will be Rs.5.75 lakhs. The entitlement of the appellants will be to the extent of 50% of the said amount which comes to Rs.2,87,500/-. The Tribunal has granted total compensation of Rs.2,78,200/-. Thus, enhancement of Rs.9,300/- will have to be granted. 5. The Tribunal has declined to grant interest from the date of filing of the application on the ground that in the period between 1989 to 1991, on six dates, the appellants were absent. It must be noted here that the claim petition was filed in March 1986 and was disposed of in April 1992. Absence of the appellants on six dates was not sufficient to penalise the appellants by denying them interest. The contention of the appellants is that interest @ 9% p.a. be granted from the date of accident. The said request cannot be acceded to. During recent past the interest rates on deposits of nationalized banks have been considerably reduced. Hence, interests of justice will be served if interest @ 7.5% p.a. from the date of filing of the claim 5 petition is granted to the appellants. 6. Hence, the appeal must succeed in part and I pass following order :- (A) The impugned judgement and award is modified. Instead of compensation of Rs.2,78,200/-, compensation of Rs.2,86,500/- shall be payable to the appellants with interest thereon @ 7.5% p.a. from the date of filing of the claim petition till realization or deposit of the amount with the Tribunal; (B) The impugned award which relates to payment of costs is confirmed; (C) The appellants will be entitled to proportionate costs of this Appeal from the second respondent; (D) Time of four months is granted to the second respondent to deposit with the Tribunal the enhanced amount in terms of the modified award; (E) After the amount is deposited, the Tribunal will pass appropriate order for withdrawal/reimbursement of the amount. (A.S.OKA, J.)