kbp 1 97-97.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.97 OF 1997 Sunanda Prabhakar Ransubhe and others ..Appellants Vs. Jeetsingh Ramgadia and another. .. Respondents ......... Mr.M.B.Kotak, for appellants. Mr.S.R.Singh, for respondent no.2. ......... CORAM : A.S.OKA, J.. DATE : 21st November, 2009. JUDGMENT : 1] By this appeal, the appellants, who are the original claimants, have taken exception to the award passed by the learned Member of the Motor Accident Claims Tribunal, Pune in Claim Petition No.138 of 1991 filed under Section 166 of the Motor Vehicles Act, 1988 (hereinafter referred to as the said Act of 1988). The first appellant is the widow of the deceased Prabhakar who died in a motor vehicle accident on 9 th October, 1990. The second and third appellants are son and daughter, respectively of the deceased. The first respondent was the owner of the vehicle involved in the accident and the second respondent was the insurer of the vehicle. Against a claim of Rs.Five lacs, the Tribunal granted kbp 2 97-97.sxw compensation of Rs.2,55,000/- with interest thereon at the rate of 12% per annum from the date of fixing of the petition. 2] The learned counsel for the appellants submitted that the Tribunal has committed an error by taking dependency only at the rate of Rs.2,000/- per month. He pointed out that the deceased was employed as an Executive Engineer with Maharashtra Water Supply and Sewerage Board and he was to be relieved from job from 11 th October, 1990. He stated that the deceased was to join the employment of M/s.Allied Electricals w.e.f.12 th October, 1990 at the salary of Rs.8,000- per month. He submitted that the multiplicand ought to have been calculated on the basis of monthly salary Rs.8,000/-. Placing reliance on a recent judgment of the Apex Court in the case of Sarla Verma and others Vs.Delhi Transport Corporation and another [(2009) 6 SCC 121], he submitted that the deduction of 1/4 th is required to be made on account of personal expenses of the deceased. He submitted that after the accident, the deceased was alive for few days and he was hospitalised. He pointed out that the bills to the tune of Rs.11,000/- were produced to show the medical expenditure incurred on the deceased. He pointed out that the Tribunal has granted a sum Rs.5,000/- toward the medical expenditure. 3] He submitted that notwithstanding the decision of the Apex Court in the case of Sarla Verma (Supra), earlier decisions of the Apex Court which were delivered by the larger Benches continue to operate in the field. He submitted kbp 3 97-97.sxw that in this case the compensation will exceed a sum of Rs.Five Lacs and in view of a decision of the Apex Court in the case of Nagappa Vs. Gurudayal Singh and others [2003 ACJ 12], this Court can enhance the amount to a figure which is more than Rs.Five Lacs, subject to the appellants paying court fees. He submitted that that on the enhanced amount interest at the rate of 12% per annum is payable. He submitted that in view of the decision in the case of Panjikaran Paulose Joseph and others Vs. Kusum Vithal Patil and others [1993 ACJ 242], the interest at the rate of 12% per annum will have to be granted. He relied upon a decision of the Division Bench of the Karnataka High Court in the case of Angels Travels Vs. K.Chikkayya [1991 ACJ 129] and submitted that the appellants had to undergo agony of watching the process of death enveloping the the victim of the accident and on this count, additional compensation ought to have been granted. 4] Learned counsel for the second respondent submitted that the multiplicand will have to be calculated on the basis of last drawn salary of the deceased and future prospects may not be considered considering the fact that the deceased was 51 years of age. He submitted that the case made out by the appellants that the deceased had secured an employment at a salary of Rs. 8,000/- has to be disbelieved and the Tribunal has rightly not taken the income of the deceased at Rs.8,000/- per annum. He submitted that no case for grant in enhancement is made out. He submitted that the Apex Court in the recent kbp 4 97-97.sxw decision in the case of Sarla Verma (Supra) has considered all its earlier decisions, and therefore, what is operating in the field is the said decision. He submitted that even if this court is inclined to grant the enhancement, the rate of interest should be at the rate of 6% to 7% per annum. 5] I have carefully considered the submissions. Perusal of the decision of the Apex Court in the case of Sarla Verma (Supra) shows that the Apex Court has considered its all earlier decisions in the cases of (1)Davies V. Powell Duffryn Associated Collieries Ltd., [(1942) AC 601], (2) General Manager, Kerala State Road Trans. Corpn. V. Susamma Thomas, [1994 ACJ 1(SC)], (3)Nance Vs. British Columbia Electric Rly. Co.Ltd., [(1951) AC 601], (4) New India Assurance Co. Ltd. Vs.Charlie, [2005 ACJ 1131 (SC)], (5) Oriental Insurance Co. Ltd. V. Meena Variyal [2007 ACJ 1284 (SC)], (6)Tamil Nadu State Trans. Corpn. Ltd. Vs.S.Rajapriya, [2005 ACJ 1441(SC)], (7) U.P. State Toad Trans. Corpn. V. Krishna Bala [2006 ACJ 2114 (SC)], (8) U.P.State Road Trans. Corpn. V.Trilok Chandra [1996 ACJ 831 (SC)]. The Apex Court summarised the entire law on the aspect of the computation of the compensation in a claim petition under Section 166 of the said Act and after reconciling all the said earlier decisions, the Apex Court has laid down the manner in which the multiplicand shall be calculated. The Apex Court has also laid down the law on the aspect of application of appropriate multiplier. The Apex Court in paragraph nos.10 to 18 has made a detailed discussion about the general principles governing the grant kbp 5 97-97.sxw of compensation. In paragraph 19 of the decision, the Apex Court has held that the Tribunals shall determine the compensation in case of death by following the steps set out in the said decision. Therefore, the determination of the compensation in the present case will be governed by the said decision of the Apex Court in the case of Sarla Verma (Supra). 6] In the present case, there is no challenge to the award by the respondents. The first question is what should be the multiplicand. The second appellant stepped into the witness box. He stated that after the accident, the deceased was admitted to Ruby Hall Clinic, Pune and after two days he succumbed to the injuries. He has stated that he was required to spend Rs. 10,000/- for the medical treatment. He stated that at the time of his death the age of deceased was 51 years. He stated that he was in the employment of the Maharashtra Water Supply and Sewerage Board. He stated the deceased was selected for another job in a private company. The deceased was to be relieved from the employment of Maharashtra Water Supply and Sewerage Board on 11 th October, 1990 and with effect from 12 th October, 1990 he was to join the employment M/s.Allied Electricals at the salary of Rs.8,000/- per month. The appellants examined one Uday Vasant Gadkari, Proprietor of M/s.Allied Electricals who produced letter dated 4 th October, 2000 issued by him in which he has stated that he offered a job to the deceased at the salary of Rs.8,000/- per month. kbp 6 97-97.sxw 7] In the deposition, the second appellant has stated that the last drawn salary of the deceased was Rs.5,500/- per month. The salary slip was tendered by him on record. The salary slip of September, 1990 issued by the Maharashtra Water Supply and Sewerage Board shows that the deceased was drawing salary of Rs.4,695/- per month by way of salary. 8] A copy of order dated 4 th October, 1990 passed by the Maharashtra Water Supply and Sewerage Board has been produced by the appellants at exhibit 19/3. The said order discloses that the deceased had applied for voluntary retirement under the provisions of Rule 66 of the Maharashtra Civil Services (Retirement) Rules, 1982. The said order records that the request for grant of voluntary retirement made by the deceased was accepted and the deceased was relieved from service on 11 th October, 1990. Thus, the last drawn salary of the deceased from his last employment was Rs.4,695/- which can be conveniently taken as Rs.4,700/- per month. 9] Reliance has been placed on a letter 4 th October, 1990 issued by the second witness examined by the appellants (Proprietor of the Allied Electricals). In the said letter dated 4 th October, 1990 (Exhibit 45), it is stated that the deceased was to retire from the government service on 11 th October, 1990. It is stated that the said Allied Electricals was willing to appoint the deceased as a Consultant. The consultation fees will be approximately Rs.8,000/- per month. It is pertinent to note that the application made by the deceased seeking kbp 7 97-97.sxw voluntary retirement was accepted by a communication dated 4 th October, 1990. By the communication issued by M/s.Allied Electricals on the very day, the deceased is not offered an employment, but, an offer was made to the deceased to appoint him as a Consultant. As per the said letter, the consultation fee offered was of Rs.8,000/- per month. In his deposition, the witness Uday Vasant Gadkari has stated that the deceased was known to him for 30 years and he wanted to take voluntary retirement from the government service. The deceased made oral enquiry with the said witness for employment after the retirement. In the examination-in-chief, the said witness stated that he offered the deceased salary of Rs.8,000/- per month. As stated earlier, the letter at exhibit 45 creates a serious doubt considering the date of the letter and it contents. The letter offers appointment of the deceased as a Consultant for approximate monthly fees of Rs.8,000/-. The deposition of Uday Vasant Gadkari proceeds on the footing that he had offered an employment at monthly salary of Rs.8,000/-. What is deposed by the said Uday is completely contrary to the what is stated in the letter at exhibit 45. It cannot be ignored that the witness in cross- examination stated that he was knowing the deceased for 30 years. Therefore, it is very difficult to accept the case made out by the claimants that M/s.Allied Electricals had offered a job to the deceased at the salary of Rs.8000/- per month after his voluntary retirement from the government service. There is a serious doubt created about the genuineness of the case made out on the basis kbp 8 97-97.sxw of the letter at exhibit 45. 10] The case of the claimants is that the age of the deceased was 51 years. The deceased was working as the Executive Engineer, who had applied for voluntarily retirement. The question is for calculating the multiplicand, whether any addition can be made to the income on account of future prospects of increase in income. The Apex Court in the decision in the case of Sarla Verma (Supra) in paragraph no.24 has held that when the age of the deceased is upto 50 years, certain amount can be added to the income on account of future prospects of increase in earnings. However, the Apex Court has further held that there should not be any addition where the age of the deceased was more than 50 years. In view of the fact that the age of the decease was more than 50 years, no such addition can be made. Therefore, the income of deceased will have to be taken at Rs.4,700/- per month. 11] Placing reliance on what is observed in paragraph 30 of the decision in the case of Sarla Verma (Supra), the learned counsel for the appellants submitted that 1/4 th deduction will have to be made on account of personal expenditure. The said submission cannot be accepted for the simple reason that the Apex Court has held that 1/3 deduction will have to be made where the number of dependents family members are 2 to 3 and deduction of 1/4 to be made where the number of dependent family members are 4 to 6. 12] In the present case, going by the case made out by the appellants, the kbp 9 97-97.sxw number of dependent family members were three. Therefore, 1/3 deduction will have to be made. After deducting 1/3 out of Rs.4,700/-, the dependency will be Rs.3,134/- and the yearly dependency will be Rs.37,608/-. As far as the multiplier is concerned, in view of what is held in paragraph 42 in the case of Sarla Verma (Supra), the multiplicand will have to be taken as 11. Applying multiplicand of 11, loss of dependency will be Rs.4,13,688/-. The second appellant has deposed that he had to spend a sum of Rs.10,000/- on medical treatment of the deceased. There are bills produced on record in support of the said case. Therefore, the appellants will be entitled to Rs.10,000/- on the said count. To that usual amount of Rs.15,000/- will have to be added. Thus, the compensation payable will be Rs.4,38,688/- which can be rounded off to Rs. 4,39,000/-. Thus, in addition to compensation of Rs.2,55,000/-, the appellants will be entitled to compensation of Rs.1,84,000/-. 13] The other question is what should be the interest on this additional compensation. The claim petition was filed on 21 st February, 1991. From the year 1991, till the year 2009, there have been fluctuations in the interest rates on the fixed deposits of the nationalised banks. There has been a reduction from 12% to 6.5% or 6.0%. Taking the overall view of the matter, the rate of interest on the additional amount will have to be fixed at Rs.7.5% per annum. 14] Reliance was placed by the learned counsel for the appellants on a decision of Karnataka High Court for claiming the compensation on the ground kbp 10 97-97.sxw that the appellants had undergone agony of seeing the deceased dying as a result of injuries sustained in the accident. When the compensation is calculated by applying multiplier method, there is no scope to award the compensation under the said heading. In the decision relied upon by the appellants, apart from the compensation calculated by applying multiplier method, only a sum of Rs.5,000/- was granted as additional compensation on account of pain and suffering to the claimants who were the parents of the deceased. Therefore, the submission based on the said decision cannot be accepted. 15] Hence, the appeal must succeed and I pass the following order:- (a) In addition to the compensation already awarded under the impugned judgment and award, the appellant will be entitled to additional compensation of R.1,84,000/- together with interest thereon at the rate of 7.5% per annum from 21 st February, 1991 till the deposit of the said amount with the Tribunal. (b) The appellants will be entitled to proportionate costs of the appeal from the second respondent. (c) Time of four months is granted to the second respondent to deposit the additional compensation in the Tribunal. (d) As and when the compensation is deposited, the Tribunal will pass appropriate order regarding disbursement of the amount to the appellant after hearing the appellants. (e) Appeal is partly allowed in the above terms. ( A.S.OKA, J. )