1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE First Appeal No.269 of 2009 With Civil Application No.201 of 2009 United India Insurance Co. Ltd. Appellant Vs. Smt.Vaishali Balu Zimal & ors. Respondents Mr.A.B.Gatne for appellant. Mr.G.S.Hegde with Mr.C.M.Lokesh for respondent nos.1, 6 and 7. CORAM: B.H.MARLAPALLE & D.G.KARNIK,JJ. March 26, 2009. ORAL ORDER (PER B.H.MARLAPALLE,J.) 1. This appeal filed under Section 173 of the Motor Vehicles Act, 1988 (for short "the Act) arises from the award dated 16/7/2008 passed by the learned Member of the Motor Accidents Claims Tribunal at Mumbai in MAC Application No.367 of 2000. The Tribunal was pleased to grant Rs.10,97,500/- (Rupees ten lakhs ninety seven thousand five hundred only) to be paid by the Insurer and the vehicle owner jointly and severally, with interest at the rate of 7.5 per cent per annum from the date of the application till its realisation. 2 2. The learned counsel for the appellant was put on notice that the appeal would be decided at the admission stage itself and accordingly he circulated the private paper book copies. We have heard the learned counsel for both the parties i.e. the appellant and the claimants. Respondent no.8 who was impleaded as opponent no.1 before the Tribunal was the owner of the jeep involved in the accident and the claim application had proceeded ex parte against him. 3. The husband of the applicant no.1 and the son of applicant nos.6 and 7 - Balu Mahadeo Zimal was travelling in the jeep with registration no.MH-03-H-2692 which met with an accident on 25/11/1997 and he died in the said accident. Claimant nos.2 to 5 are the four minor children of the deceased. The deceased was going to village Pukalewadi for attending the marriage and the jeep was being driven by Shri Phiroz Gulab Hussain Shaikh and it was going on Phaltan-Signapur Road via Mardi and towards Mhaswad. When it came near Shembadevasti, the driver while driving in a rash and negligent manner and in fast speed lost control over it and the jeep turned turtle and fell in a ditch. The deceased sustained vital injuries to both his lungs and head. 3 He was removed to the nearby Gokula Hospital and thereafter to the Primary Health Centre, Mhaswad where he was declared dead. 4. It was claimed before the Tribunal that the applicants were entirely dependent upon the income of the deceased. The younger brother of the deceased was mentally retarded person and was also dependent upon the income of the deceased. He was of the age of 30 years and was running a business of travel agency as well as supply of contract labour. The claimants had claimed compensation of Rs.25,00,000/-. 5. The appellant had filed Written Statement at Exhibit 13 and opposed the claim. It had also filed an application under Section 170 of the Act seeking leave to defend and thus opposed the claim on all counts. In support of the claim application applicant no.1 - Vaishali had filed affidavit at Exhibit 23 by way of examination in chief and she was subjected to cross examination, though not effectively. The post mortem report at Exhibit 15 was filed along with the death certificate at Exhibit 16 and spot panchanama at Exhibit 25. At Exhibit 27 the certificate of extract of the account of Vaishali Enterprises was placed. At 4 Exhibit 17 the original school leaving certificate was also brought on record so as to indicate that the deceased was born on 31/8/1967. None was examined on behalf of the present appellant. The Tribunal held that the deceased died due to the injuries sustained in the accident and the accident had taken place due to the rash and negligent driving of the jeep driver. Consequently the opponents were liable to pay compensation at Rs.10,97,500/- with interest at the rate of 7.5 per cent per annum. 6. Mr.Gatne, the learned counsel for the appellant did not challenge the findings regarding the factum of accident and its occurrence on account of the rash and negligent driving of the jeep driver. He submitted at the first instance that the deceased was a gratuitous passenger and, therefore, was not covered under the Insurance Policy. The Insurer was not liable to pay any compensation on that ground. It is pertinent to note that the Insurance Policy was not brought on record and only the photostat copy of the cover note issued by the Insurer on 1/4/1997 was placed before the Claims Tribunal. Column 6 of the said Cover Note was regarding limitations as to the use of the motor vehicle and it was left blank. No material was placed 5 before the Tribunal by the Insurer to suggest that the deceased was a gratuitous passenger and in any case in the absence of the Insurance Policy before the Tribunal, it could not be accepted that the third party passengers in the jeep were not covered under the Insurance Policy. The onus was on the Insurance Company and it failed to discharge the same. 7. Mr.Gatne then submitted that the compensation amount awarded by the Tribunal is not based on the realistic income of the deceased as well as the Tribunal committed an error in fixing the multiplier at 17. In support of these contentions he relied upon the following decisions: (1) U.P.State Road Transport Corporation & ors. Vs. Trilok Chandra & ors. [(1996) 4 SCC 362] [(1996) 4 SCC 362] [(1996) 4 SCC 362] (2) Managing Director, TNSTC Ltd. Vs. K.I. Bindu & ors. [(2005) 8 SCC 473] [(2005) 8 SCC 473] [(2005) 8 SCC 473]. 8. The claimant no.1 in her depositions stated that the deceased was contributing Rs.10,000/- per month towards the family expenses and he was financially well off. The extract of the account at 6 Exhibit 27 went to show that in Current Account No.4392 with Kurla Nagarik Sahakari Bank Ltd. at Kurla the deceased had deposited an amount of Rs.5,25,167/- during the period from 1/3/1997 to 31/8/1999 and an amount of Rs.6,61,325/- in Current Account No.4477 held in the name of M/s. Vaishali Enterprises. Claimant no.1 had stated that the deceased was earning from all sources to the tune of Rs.2,50,000/- per annum. In her cross-examination she stated that she was not aware whether the deceased was paying any tax and further denied that she was deposing falsely about his income or the contribution of Rs.10,000/- per month by him for the family expenses. There was no further cross-examination regarding the extract at Exhibit 27 i.e. certificate of assessment issued by H.J.Mehta & Associates. Though the Chartered Accountant concerned who issued the certificate was not examined by the claimants, the Tribunal noted that there was no effective cross-examination of the claimant on this extract of the accounts. It was for these reasons the Tribunal was right in observing that there was no effective cross-examination of the claimant no.1 by the Insurer. Even otherwise the Tribunal accepted the monthly income of the deceased at Rs.8000/- per month and by 7 giving 1/3rd deduction towards the personal expenses, the annual financial dependency was fixed at Rs.64,000/-. The deceased was 30 years of age on the date of the accident and the Tribunal fixed the multiplier at 17. In the case of K.I.Bindu (Supra) the Supreme Court observed on the issue of fixing multiplier as under: "14. The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalising the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants, whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed up over the period for which the dependency is expected to last." . In the instant case applicant no.1 - widow of 8 the deceased was of 25 years and applicant nos.2 to 3 were minor daughters between the age group of 1 to 5, applicant no.5 - son was twin of applicant no.4. Applicant nos.6 and 7, the dependent parents were also of the age of 50 and below. Having regard to the number of dependents, their respective ages and the monthly contribution of the deceased to the family fixed at Rs.8000/-, we do not find any error in fixing the multiplier at 17 and, therefore, the reasoning set out by the Tribunal in support of the same is not vitiated on any count. 9. Hence this appeal must fail at the threshold and the same is hereby dismissed. 10. Civil application does not survive and the same stands disposed. Ad-interim order, if any, stands vacated. (D.G.KARNIK,J.) (B.H.MARLAPALLE,J.)