1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 225 OF 2005 National Insurance Co. Ltd., Diamond Chambers, 2nd Floor, 18th June Road, Panaji-Goa. … Appellant V e r s u s 1. Prabhakar Sitaram Parab, aged 59 years, agriculturist, R/o Torxem, Pernem-Goa. 2. Smt. Prabhavati Prabhakar Parab, aged 55 years, housewife, R/o Torxem, Pernem-Goa. 3. Mast. Sanjay Prabhakar Parab, aged 22 years, unemployed, R/o Torxem, Pernem-Goa. 4. Miss Sunita Prabhakar Parab, aged 20 years, unemployed, R/o Torxem, Pernem-Goa. 5. Shri Chamanuddin Sab H. Darugar, Major, son of Haji Sab Darugar, R/o Kanka-Band, Khorlim, Mapusa-Goa. C/o Dr. Sayed Shekuddin, Khorlim, Mapusa-Goa. 6. Smt. Premabai V. Narvenkar, R/o H. No. E/115, Taliwado, Mapusa, Bardez-Goa. 7. Shri Narayan Sonu Temkar, (appeal stands dismissed R/o H. No. 165/B/1, against respondent no.7) Cuchelim, Mapusa-Goa. … Respondents. 2 Mr. E. Afonso, Advocate for the Appellant. Mr. J.J. Mulgaonkar, Advocate for Respondents Nos.1 to 4. CORAM : F.M. REIS, J. DATE : 18th FEBRUARY, 2011 JUDGMENT : The above appeal challenges the judgment and award passed in Claim Petition No.91/2003 dated 2/05/2005 by the Presiding Officer, Motor Accident Claims Tribunal, Mapusa. 2. The Claim Petition was filed by the respondents nos.1 to 4 on the ground that the son of respondents nos.1 & 2, Sitaram and the brother of respondents nos.3 & 4, was operating a passenger bus bearing No.GA-01-P-5257 proceeding from Patradevi - Pernem to Panaji. It is their contention that the truck driven by the respondent no.5, owned by the respondent no.6 and insured with the appellants was driven in a rash and negligent manner, which resulted in the death of the said deceased, Sitaram. In view of the said accident, the respondents nos.1 to 4 claimed the compensation to the tune of Rs.8,60,000/- to be paid to them. 3. The appellants alone contested the claim petition on the ground that their liability, if any, is to indemnify the insured under 3 the terms and conditions of the policy, in case it was established that the respondent no.5 was rash and negligent in driving the vehicle. They also disputed the age of the deceased, his business and more particularly, his earnings. 4. The learned Presiding Officer, after framing of issues and recording of evidence have ordered compensation to the tune of Rs.5,80,500/- to be paid to the respondents nos.1 to 4, besides interest at the rate of 9% p.a. from the date of the filing of the claim petition, till the actual payment. 5. Being aggrieved by the said judgment, the appellants have preferred the present appeal. The learned Counsel appearing for the appellants has assailed the impugned judgment and contended that the Tribunal has erroneously come to the conclusion that the respondent no.5 has driven the vehicle in a rash and negligent manner. The learned Counsel further submitted that the findings of the Tribunal to the effect that there was rashness and negligence on the part of the respondent no.5 is not born out from the records. The learned Counsel further pointed out that the Tribunal has erroneously come to the conclusion that the income of the deceased was Rs.3,500/- per month, which is not at all established from the 4 records. The learned Counsel further submitted that the Tribunal has erroneously applied the multiplier on the basis of the age of the deceased, when the law is well settled that the multiplier is to be applied on the basis of the age of the dependents, whichever is higher. Learned Counsel further pointed out that the Tribunal has also erroneously deducted only 1/3rd on account of the personal expenses, when the law is well settled that in case of the bachelor the amount to be deducted is 50%. The learned Counsel took me through the evidence on record and pointed out that there is no material adduced by respondents nos.1 to 4 to establish that income of the deceased was Rs.3,500/- per month. The learned Counsel, as such, submitted that the impugned judgment deserves to be quashed and set aside. 6. On the other hand, Shri J.J. Mulgaonkar, the learned Counsel appearing for respondents nos.1 to 4 has supported the impugned judgment. The learned Counsel submitted that considering the judgment of the Apex Court reported in 2009 (6) SCC 121 in the case of Smt. Sarla Verma V/s. Delhi Transport Corporation & Anr., the multiplier is to be applied is as per the age of the deceased. The learned Counsel further submitted that the multiplier applied by the Tribunal is 17 and is in accordance with 5 the judgment of the Apex Court. The learned Counsel further submitted that the question of effecting any deduction to the extent of 50% on account of personal expenses would not arise in the facts of the present case as according to him as per the judgment of the Apex Court relied by him in the case of Smt. Sarla Verma (supra), there is discretion in favour of the Tribunal to effect such deduction in the circumstances of the case. The learned Counsel further submitted that there is no infirmity committed by the Tribunal and, as such, the appeal deserves to be dismissed. 7. Having heard the learned Counsel and on perusal of the records, I find that the contention of the learned Counsel appearing for the appellants, to the effect that the evidence does not disclose that the respondent no.5 was driving the vehicle in a rash and negligent manner cannot be accepted. AW1/Prabhakar Parab has stated that the accident took place at Tambolim, Pernem-Goa, in which his son aged 33 years had died on account of the rashness and negligence of the respondent no.5. He has also disclosed the manner in which the accident took place and produced the accident panchanama. No doubt he was not an eye witness to the accident, but on the basis of the site panchanama and other material on record, the Tribunal was justified to come to the conclusion that the 6 respondent no.5 was driving the vehicle in a rash and negligent manner. The contention of the appellants that the deceased was responsible for the accident has been rightly disbelieved by the Tribunal. The learned Counsel appearing for the appellants was unable to point out any infirmity committed by the Tribunal in coming to the conclusion that the respondent no.5 was driving the vehicle in a rash and negligent manner. 8. Dealing with the next contention of the learned Counsel for the appellants to the effect that the Tribunal has wrongly assessed the income of the deceased at Rs.3,500/- per month, I find on the basis of the material on record, that the Tribunal was justified to come to the conclusion that the income of the deceased was Rs.3,500/- per month. AW1/Prabhakar Parab has stated that the deceased was operating his own passenger bus from Patradevi, Pernem to Panaji and back and also working as a conductor on the said bus. His net earning was Rs.500/- per day after deducting the expenses of the driver, cleaner, etc. The Tribunal has considered that there was no written document to substantiate that the earning of the deceased was Rs.500/- a day. There was also evidence adduced by the respondents nos.1 to 4 to disclose that a loan was obtained by the deceased from Sankhali Urban Co-op. Credit 7 Society to the tune of Rs.2,35,000/- for the purchase of the second hand bus in the year, 2000 and the balance loan amount was cleared by him on 20/02/2003. The payment of such amount would demonstrate that the deceased had sufficient means to repay the loan amounts. The Tribunal after considering the material on record has come to the conclusion that the net earnings of the deceased would be Rs.3,500/- after deducting the amount spent on the loan account and the payment of salaries. There is no cross- objections filed by the respondents to the said findings of the Tribunal. I find no justification to come to any contrary findings. As such, the income of the deceased is accepted to be Rs.3,500/- per month as held by the Tribunal. 9. While disposing of the Claim Petition, the Tribunal has deducted 1/3rd on account of personal expenses. There is no dispute that the deceased was a bachelor and the parents were deceased. In the judgment of the Apex Court and in the case of Smt. Sarla Verma (supra), the Apex Court at para 26 has held thus: “26. It is also very difficult for the respondents in a claim petition to produce evidence to show that the deceased was spending a considerable part of the income on himself or that he was contributing only a small part of the income on his family. Therefore, it became necessary to standardise the deductions to be made under the head of personal and living expenses of the deceased. This lead to the practice of deducting 8 towards personal and living expenses of the deceased, one-third of the income if the deceased was married, and one-half (50%) of the income if the deceased was a bachelor. This practice was evolved out of experience, logic and convenience. In fact one- third deduction got statutory recognition under the Second Schedule to the Act, in respect of claims under Section 163-A of the Motor Vehicles Act, 1988 (“the MV Act”, for short). But, such percentage of deduction is not an inflexible rule and offers merely a guideline.” 10. Considering the said judgment of the Apex Court, the deduction on account of personal expenses would have to be 50%. The contention of the learned Counsel for the respondents nos.1 to 4 to the effect that the deduction should be less, cannot be accepted. This is not a case where the dependents are the children of the deceased. In such circumstances, the deduction on account of personal expenses would have to be 50%. 11. The contention of the learned Counsel appearing for the respondents nos.1 to 4 that the multiplier is to be fixed on the basis of the age of the deceased cannot be accepted. The law is well settled that the multiplier is to be applied on the basis of the age of the claimant or the deceased, whichever is higher. The Division Bench of this Court in the judgment passed in First Appeal No.109/2005 dated 22/06/2010 has held at para 18 thus: “18. Now the computation of compensation by multiplier method will have to be made as per the 9 guidelines laid down by the Apex Court in the case of Sarla Verma (Smt.) and Ors. vs. Delhi Transport Corporation and anr., (2009 (6) SCC 121). The deceased was a qualified Civil Engineer. The Tribunal was right in taking the monthly income at Rs.4,000/- in the absence of clear evidence to show that the deceased was being paid salary of Rs.6,000/- per month. Fifty percent amount will have to be added towards future progress of earning and, therefore, the income will have to be taken at Rs.6,000/- per month and yearly income will have to be taken as Rs.72,000/-. As the deceased was unmarried, as held in the case of Sarla Verma (Smt.) and Ors. (supra), 50% of the amount will have to be deducted on account of personal expenditure. Thus, the deduction will have to be taken at Rs.36,000/-. Multiplier will have to be determined on the basis of respective ages of the claimants as the deceased was younger than them. Considering the ages of the appellants, multiplier of 9 will have to be applied as per the law laid down in the case of Sarla Verma (Smt.) and Ors. (supra). Thus, the compensation payable will be Rs.3,24,000/-, to which a sum of Rs.6,000/- will have to be added by way of funeral expenses. Thus, the total compensation payable will be Rs.3,30,000/-. As we have held that the deceased herself had contributed to the accident, a deduction of 50% will have to be made and hence, the compensation payable will be Rs.1,65,000/-.” 12. Considering the said judgment of the Division Bench, the multiplier will have to be applied on the basis of the age of the parents. The age of the claimant no.1 is 59 years, hence the multiplier to be applied in accordance with the judgment of the Apex Court in the said case of Sarla Verma (supra) would be 9. 10 13. No doubt there was objection of the part of the learned Counsel for the appellant to the effect that the claimants have not established the actual age of respondent no.1/claimant no.1 at the time of the accident. The Tribunal, on the basis of evidence on record, has come to the conclusion that the age of respondent no.1 is 59 years and age of respondent no.2 is 55 years. I am not inclined to take any contrary view as far as the age of the claimants is concerned, but it is made clear that the Tribunal should ensure that the claimants should produce their birth certificates to avoid any such dispute for the purpose of fixing the compensation in the claim petition. 14. Considering the facts and circumstances of the case, I find that after applying the multiplier of 9, the amount works out to Rs.3,17,000/-. After deducting 50% on account of personal expenses, the amount works out to Rs.1,89,000/- Besides the said amount, the respondents nos.1 & 2 would be entitled for a sum of Rs.2,000/- on account of funeral expenses and a further sum of Rs.2,500/- for loss of estate. Total amount, as such, works out to Rs.1,93,500/-. Besides the said amount, respondents nos.1 & 2 would also be entitled for interest at the rate of 9% per annum as awarded by the Tribunal from the date of filing of the claim 11 petition up to the date of the actual payment. 15. In view of th above, I pass the following order: O R D E R (i) The appeal is partly allowed. (ii) The impugned judgment and award dated 2/05/2005 is modified and the amount of compensation payable to the respondents/claimants is fixed at Rs.1,93,500/- together with interest thereon at 9% p.a. from the date of filing of the Claim Petition up to the actual payment. (iii) Any amount paid under Section 140 of the Motor Vehicles Act, shall be adjusted against the said compensation. (iv) The appeal stands disposed of accordingly with proportionate costs. F.M. REIS, J. NH/-