1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO.648 OF 1997. 1. Aditya S/o Mahendra Kurundkar (This appellant is transposed as Respondent No.4 as per court's order dt. 15.3.2005 in Civil Application No.3037/05. 2. Madhukar S/o Dhundiraj Kurundkar, (Since Died) 3. Mandakini Madhukar Kurundkar, Age about 68 years, Occ : Household, R/o As above. APPELLANTS VERSUS 1. Time Engineers, Plot No.4/11/1, MIDC, Industrial Area, Chikalthana, Aurangabad. 2. The New India Assurance Company Ltd., 15/A, Bombay-Pune Road, Bhale Estate, Pune-411 003. 3. Jayashri Mahendra Kurundkar, now Jayashri M. Ringangaonker, Aged about 31 years, Occ : nil, R/o C/o Sanjay Ringangaonker, Bank of Maharashtra, Dhantoli Br. Nagpur. 4. Aditya S/o Mahendra Kurundkar Age : 19 years, Occ : Education, R/o at present-Raj Nagar, Opp. Hotel Vedant, Station Road, Aurangabad. RESPONDENTS 2 ------------------------------------------------------------------------------------------------------- Mr. S. V. Kurundkar & A. S. Deshmukh, the Advocates for the appellants. Mr. V. N. Upadhye, Advocate for Respondent No.2. Mr. S. V. Gangapurwala, Advocate for the respondent no.3. Mr. S.R. Deshpande, Advocate for the Respondent No.4. ------------------------------------------------------------------------------------------------------ (CORAM : R.K. DESHPANDE, J.) DATE : 08th September, 2009. ----------------------------------------------- ORAL JUDGMENT : This appeal has been preferred by the parents of the deceased Mahendra who died in the accident which occurred on 11.07.1989. During the pendency of this Appeal, the appellant no.2-Madhukar, the father of the deceased died and hence his name has been deleted. The present Appeal is therefore at the instant of sole appellant, the mother of deceased. 2. The Motor Accident Claim Petition No.164/1989 was filed by the parents of the deceased Mahendra, widow-Jayshri and his son Aditya claiming compensation of Rs.10,00,000/- in respect of the death of Mahendra which occurred on 11.07.1989. It is not necessary to state the facts in details, suffice it to say that the Motor Accident Claims Tribunal at Aurangabad has allowed the Claim Petition and directed the owner of the vehicle who is respondent no.1 herein along with the Insurance Company to pay jointly and severally an amount of Rs.4,50,000/- towards compensation along with interest at the rate of 12% p.a. from the date of 3 filing of Petition i.e. from 27.11.1989 till its realisation. The entire amount of Rs.4,50,000/- has been deposited by the respondent no.2 Insurance Company and an amount of Rs.3,00,000/- has been permitted to be withdrawn by the son of the deceased namely Aditya. The balance amount of Rs.1,50,000/- has been ordered to be deposited in Fixed deposit in Nationalise bank for a period of seven years which is to be renewed subsequently from time to time till the minor attains majority. 3. The Motor Accident Claims Tribunal has determined the monthly income of the deceased as Rs.4,000/- and from it, an amount of Rs.1,500/- towards the personal expenses are deducted and an amount of Rs.2,500/- per month has been arrived at towards the dependancy of the deceased. The Tribunal has determined an amount of Rs.30,000/- per year. The longevity of the deceased has been determined as 70 years and multiplier of 15 is used. The total amount of Rs.4,50,000/- has been arrived at as compensation payable to the claimants who are dependants. In addition to it, the claimant no.1 widow of the deceased was held entitled to get an amount of Rs.25,000/- towards loss of consortium. 4. The learned Counsel for the appellant Shri. A. S. Deshmukh supported by Shri. Gangapurwala the learned Counsel appearing for Respondent Nos.3 and 4-orig.claimants, have urged for enhancement of 4 compensation on the ground that, the multiplier applied by the Tribunal should have been of 20 instead of 15. According to the learned Counsels appearing for the claimants, keeping in view of longevity of the life of deceased, determined by the Tribunal and age of the deceased which is of 33 years, the amount of Rs.4,50,000/- arrived at, was inadequate. The learned Counsel Shri. Deshmukh appearing for the appellant has further urged that, at any rate the original appellants who are the parents of the deceased should have been held entitled to get an amount of compensation in equal proportionate to one which is awarded to the respondent nos.3 and 4, the widow and son of the deceased. He has urged that, the Tribunal has failed to pass order of apportionment of compensation to the appellants, therefore, claimed that the appellants are entitled to his share in the amount of compensation awarded by the Tribunal. 5. There is no challenge to the income of the deceased as determined by the Tribunal. There is also no dispute about the age of the deceased fixed at 33 years by the Tribunal. The question is only of applying multiplicand of 15 which the Tribunal has applied. The claim of the appellant is for applicability of the multiplicand of 20 keeping in view of longevity of life of the deceased, determined by the Tribunal. The Tribunal has considered this aspect of the matter in para No.10 of the Judgment 5 which is reproduced below :- “Para 10 :- Income of the deceased was Rs.4000/- per month and out of which an amount of Rs.1500/- will have to be deducted towards the personal expenses of the deceased and the dependency of the family namely wife and son is assessed at the rate of Rs.2500/- per month which comes to an amount of Rs.2500 x 12 = 30,000/- per year. It as suggested to claimant Jaishree during cross-examination that she is serving in the bank and she was not the dependent on the deceased. She denied the same. Generally husband and wife earn the amount for maintaining the family in a better position. It can not be said that wife was not dependent on the income of the husband. At the most when both husband and wife are serving, they can save some amount for their future life for constructing house etc. The dependency of the claimant is assessed at the Rs.30,000/- per year. Age of the deceased was 33 years at the time of accident and his father and grand- father both and a alive, and therefore, it can be presumed that he would have survived upto the age of 70 years. Considering the age of the deceased, multiplier of 15 can be made applicable for calculating the amount of compensation. The compensation thus comes to an amount of Rs.30,000 X 15 = 4,50,000/-. Claimant no.1 is further entitled for a sum of Rs. 25,000/- towards the loss of consortium. In this way, claimants are entitled for the total amount of compensation of Rs.4,75,000/- inclusive of the amount of interim relief already awarded and paid.” 6. The claim of the appellant is that if second Schedule to the Motor Vehicles Act, 1988 is looked into then upon the age of 33 years, the multiplicand of 17 has to be applied. As against this, the Tribunal has applied multiplicand of 15. The learned Counsel Shri. Upadhye appearing for the Insurance Company has urged that, the second Schedule to the 6 Motor Vehicles Act, 1988 has been introduced w.e.f. 14.11.1994 and it was not on statute book when, the policy was taken out on 29.03.1998, accident occurred on 11.07.1989 and the Judgment delivered by the Tribunal on 30.04.1994 and hence, the guiding principle laid down under schedule can not be made applicable. According to him, the Tribunal has arrived at figure of just compensation payable to the claimants in accordance with section 168 of the Motor Vehicle Act, 1988. 7. After going through the findings recorded by the Tribunal, I am of view that, the Tribunal has applied the principle of just compensation as prescribed under section 168 of the Motor Vehicles Act, 1988. The Tribunal has taken into account the earnings of the widow of the deceased Mahendra and has also taken into consideration longevity of the deceased. There is neither any perversity in arriving at figure of just compensation, more particularly, when the facts are not in dispute regarding the determination of income of the deceased and his age. I do not find any ground to enhance the amount of compensation as determined by the Tribunal. 8. So far as the apportionment of compensation is concerned, the Tribunal has in para no.12 of the Judgment recorded the findings that, the parents of the deceased have not appeared before the Tribunal and it was 7 urged before the Tribunal that, they are not in good terms with the Respondent Nos.3 and 4 herein. The Tribunal has also taken into consideration the fact that, the claimant no.3 father of the deceased was retired as Block Development Officer whereas the claimant no.4 was retired as Headmistress. These facts may or may not be relevant for arriving at just figure of compensation, parents can not be denied their share in the compensation awarded by the Tribunal. In view of the decision of the Hon'ble Apex Court reported in A.I.R. 2007 SC 1474 ( Smt. Manjuri Bera V. Oriental Insurance Co.Ltd.) and 2000 ACJ 186 (Madhya Pradesh State Road Trans.Corpn. Andanother V/s Sohan Lal and others), the parents of the deceased are also legal representatives and are entitled to get compensation in equal proportion. Since the appellant no.2 has expired, now the sole appellant who is mother of the deceased would be entitled to get the amount of Rs.1,12,500/- along with accrued interest thereon. It is informed to this Court an amount of Rs.1,50,000/-is lying in the fixed deposit as per the order of the Tribunal. 6. In view of the above, the Appeal is partly allowed and the following order is passed :- Out of an amount of Rs.1,50,000/- lying in fixed deposit, the appellant-Mandakini Madhukar Kurundkar shall be entitled to receive an 8 amount of Rs.1,12,500/- with interest accrued thereon and the Respondent No.3-Jayashri Mahendra Kurundkar shall be entitled to receive an amount of Rs.37,500/-, along with proportionate share in the interest accrued thereon. There shall be no order as to cost. (R. K. DESHPANDE ) JUDGE GAS/fa648.97