1 IN THE HIGH COUT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.196 OF 1995 Maharashtra State Road Transport Corporation, Mumbai ... Appellants V/s. Chandrabhaga Rajaram Gawade & Ors. ... Respondents. Mr. G.S. Hegade for the Appellants. None for the Respondents. CORAM : SMT. NISHITA MHATRE, J. DATE : 25 TH SEPTEMBER, 2009. ORAL JUDGMENT : 1. The First Appeal has been filed against the judgment and award of the Motor Accident Claims Tribunal, Pune dated 11th August, 1994. By the award, the Tribunal has directed the appellants to pay an amount of Rs.2,80,000/- inclusive of the no fault liability to the claimants together with proportionate costs and future interest @ 12% p.a. from the date of the application till realization of the entire amount. The Tribunal has arrived at this figure by considering the dependency @ Rs.1,500/- and has 2 used the multiplier of “15”. The Tribunal has calculated this amount as Rs.2,70,000/- and has added another Rs.10,000/- towards consortium, loss of love and affection etc. On this basis, the Tribunal has awarded the aforesaid amount. 2. The accident occurred when the deceased Ramchandra Gawade was traveling on 2nd November, 1986 with his wife and children in an ambassador car from Pune to Mumbai along the old Bombay-Pune Highway. The applicants claimed in the Claim Petition that an S.T. Bus bearing No. MCA-5838 was being driven in a fast speed from the opposite direction. It dashed against the right side of the ambassador car which resulted in multiple injuries being caused to the deceased and his son. The deceased was sitting behind the driver of the car with his son on his lap. The other occupants of the car also sustained several injuries. According to the claimants, the deceased was employed and was earning Rs.2,153.51 as his monthly salary. He was the only earning member of the family 3 and also worked as a Special Organizer with Peerless General Insurance Company and was earning about Rs.1,500/- to Rs. 1,600/- as commission. The deceased was 36 years of age and, therefore, the claimants claimed an amount of Rs.4,00,000/- by way of compensation. The claimants are the mother, wife, two minor children and a handicapped brother of the deceased. 3. The application was contested by the appellant-S.T. Corporation. It contended that the S.T. Driver was not negligent and it was in fact the car which was being driven in a rash and negligent manner in excessive speed which caused the accident. It was contended that the driver of the car lost control of the vehicle while trying to over take another vehicle and in that process dashed against the S.T. Bus. 4. Respondent No.3, i.e. the owner of the ambassador car, has not filed any written statement before the Tribunal. Respondent No.4, which is the Insurance Company for the 4 ambassador car, contended that the accident occurred due to the rash and negligent driving of the S.T. Bus driver. It also contended that the policy did not cover the vehicle being plied for hire or reward and, therefore, disowned its liability for payment of compensation. 5. The Tribunal concluded that the driver of the vehicle bearing No. MCA-5838, i.e. the S.T. Bus, was rash and negligent due to which the accident occurred. According to the Tribunal, there was no evidence on record which indicated that the driver of the ambassador car had contributed to the accident. It was noted that the S.T. Driver had not been examined in order to controvert the contention that the accident occurred due to his rash and negligent driving. The Tribunal considered the panchanama recorded and the evidence led on behalf of the claimants and concluded that the bus driver had caused the accident due to his rash and negligent driving. 5 6. Mr. Hegde appearing for the appellants submits that even assuming that the driver was not examined, the evidence on record indicates that the driver of the ambassador car was equally responsible for the accident which resulted in the death of Ramchandra Gawade and his son. He submits that the compensation awarded by the Tribunal is excessive. According to him, the multiplier of "15" used by the Tribunal is incorrect as it should have been "13" in view of age of the deceased. He relies on the judgment in the case of U.P. State Road Transport Corporation vs. Krishna Bala & Ors., reported in AIR 2006 Supreme Court 2688, in which the Supreme Court in the case where the deceased was 36 years of age (as in this case) has applied the multiplier of "13". He then submits that the dependency taken by the Tribunal of Rs.1,500/- is incorrect as there was no evidence on record to indicate that the deceased was in fact paying this amount for household expenses. He submits that the gross salary of the deceased was Rs.2,153.51 per month and there was nothing on record to indicate the 6 deductions made from that salary. Therefore, urges the learned Advocate, the Tribunal has erred in considering Rs.1,500/- as the dependency. Apart from this, he submits that the interest rate of 12% p.a. is too high and ought to have been reduced. 7. Nobody appears for the claimants though they are served. The matters were called out yesterday in the afternoon session when nobody appeared for the claimants. As it was part heard, it has been heard today. Again the claimants are not represented. 8. In my opinion, the contention that the S.T. Driver was not negligent or in any case was not negligent cannot be accepted, nor can the contention that the driver of the ambassador car was equally responsible for the accident is accepted. The evidence on record does not suggest that any other view is possible except the one which the Tribunal has taken in respect of the negligence of the driver of the S.T. Bus. 7 The best evidence in the present case would have been from the Driver of the S.T. Bus. However, surprisingly the appellants have chosen not to examine the S.T. Driver. Therefore, in my opinion, the negligence on the part of the S.T. Driver has been proved by the appellant. 9. As regards the dependency, in my opinion, the amount of Rs.1,500/- taken into account by the Tribunal cannot be faulted. The salary certificate issued by the employer indicated that the deceased was drawing a gross salary of Rs.2,153/- per month. The evidence indicated that he was also entitled to bonus, LTA and over time. Apart from this, the claimants examined an employee of the company in which the deceased was employed who has stated that the rate of bonus paid was 30% of the DA and the overtime was paid @ Rs.200/- per month. He has also stated that the deceased was entitled to LTA of Rs.1,680/-. The Tribunal has, therefore, rightly considered all these factors and has accepted that the dependency would be Rs.1,500/-. 8 10. However, in view of the judgment of the Supreme Court where the multiplier used for a person in the case of the deceased who was 36 years of age when he met with the accident, the Supreme Court has found fault with the Tribunal using "18" as the multiplier and has held that "13" would be the appropriate multiplier. 11. Thus, in the present case, in my opinion, the dependency would be Rs.1,500/- and with the multiplier of "13". The compensation payable to the claimants would be Rs.2,34,000/-. Apart from this, they would be entitled to Rs.10,000/- towards consortium, loss of love and affection as awarded by the Tribunal. However, the rate of interest calculated @ 12% p.a. would, in my opinion, be too high in the facts and circumstances of this case. In the aforesaid judgment cited by Mr. Hegde, the Supreme Court has observed that 9% would be the appropriate rate of interest which should be payable to the claimants from the date of filing of the Claim Petition. 9 Therefore, in my opinion, the claimants would be entitled to interest @ 9% p.a. from the date of the Claim Petition till realization. 12. The First Appeal, therefore, partly allowed. 13. In the event the amount deposited is surplus to what has been awarded by this judgment, the same shall be returned to the S.T. Corporation. However, if the S.T. Corporation has not deposited the amount, as required by this judgment, the same shall be deposited within six weeks from today alongwith the interest and shall be disbursed to the claimants immediately. .................