1 IN THE HIGH COURT OF BOMBAY AT GOA. FIRST APPEAL NO. 84/2004. 1. Shri Shaikh Ahmed alias G. s. Shaikh Ahmed, son of Abdul Gaffar, aged 49 years, married, businessman; and his wife; 2. Smt. Majeda Banu, aged 38 years, housewife; Both residents of House No. 61, Behind Masjid, Chandrawaddo, Fatorda, Margao, Goa. . … Appellants. V/s 1. Shri Vithal Govind Naik, major in age, driver of truck bearing registration No. KA-30/1925, residing at House No. 24, Balne, Karwar; 2. Shri Shrikant B. Revandikar, major in age, owner of truck bearing registration No. KA-30/1925, resident at House No. 10, Kodibag, Tamsewada, Karwar; and 3. National Insurance Company Ltd., Insurer of truck bearing registration No. KA-30/1925, with its Branch Office at Kaikini Road, Karwar. … Respondents. 2 Shri S. S. Kakodkar, Advocate for the Appellants. Shri M. S. Joshi, Advocate for the Respondent No. 3. CORAM : F. M. REIS , J. DATE : 28 th October 2010 . ORAL JUDGMENT The above appeal challenges the judgment and award passed by the Presiding Officer, Motor Accident Claims Tribunal, South Goa, Margao in Claim Petition No. 124/2001. 2. The Appellants filed a claim petition on the ground that they are parents of the late Noor Ahmed Shaikh who expired in a motor vehicle accident which took place on 12.4.2001 at about 15.30 hours at Barcem between Bali and Canacona. The deceased was riding a motor cycle bearing registration No. GA-02-B-7738 which was proceeding from Margao to Canacona on the said date. A truck bearing registration No. KA-30-1925 and driven by Respondent No. 1 rashly and negligently came from the opposite direction and dashed against the motor cycle of the deceased who fell down and died in view of the injuries sustained by him. The deceased was said to be of 21 years old and was a businessman and was earning Rs. 6000/- per 3 month. The Appellants accordingly claimed compensation to the tune of Rs. 7,35,000/-. The deceased was stated to have two spinster sisters and was young and healthy and was contributing Rs. 4000/- per month for the benefit of the Appellants as claimed by them. 3. The Respondent No. 3 which is the Insurance Company contested the proceedings and claimed that the accident occurred on account of the rashness and negligence of the deceased which resulted in the dash by the scooter on the said truck. The claim of the Appellants about the income of Rs. 6000/- was disputed so also the claim of contribution. 4. After framing the issues and recording of evidence, the tribunal fixed the compensation at Rs. 1,65,000/- alongwith interest at the rate of 6% per annum from 28.5.2001 till the final payment 5. Being aggrieved by the said judgment the Appellants have preferred the present appeal. 6. Shri S.S. Kakodkar learned Counsel appearing for the Appellants has submitted that the tribunal has totally erred in coming 4 to the conclusion that the monthly earning of the deceased is in the sum of Rs. 1500/- per month. He submitted that besides doing watch repairs business the deceased was also selling mobile cards and deriving some income which has not been considered by the tribunal. He further submitted that considering all these factors the total earning of the deceased ought to have been fixed at Rs. 3000/- per month. He further pointed out that the tribunal has also erred in granting interest at 6% per annum when the same should have been minimum 10% in the facts and circumstances of the case. 7. On the other hand Shri M.S. Joshi, learned Counsel appearing for Respondent No. 3 has supported the impugned judgment. He submitted that the Appellants failed to establish by any evidence that any income has been derived by the deceased by selling of mobile cards. He further submitted that no evidence has been adduced by the Appellants to substantiate their allegations that income derived by the deceased was Rs. 6000/- per month. He submitted that as no such evidence has been adduced the tribunal was justified to fix the total earnings of the deceased at Rs. 1500/- per month. The learned Counsel further submitted that as far as awarding of interest is concerned the interest awarded is just and proper. 5 8. Upon hearing the learned Counsel and on perusal of the records, I find that the tribunal was justified in coming to the conclusion that the accident occurred due to rash and negligent driving of Respondent No. 1. In fact no submission disputing the said finding has been advanced by the Respondents. The only aspect to be considered is the quantum of compensation to be paid to the Appellants. 9. Mr. Kakodkar the learned Counsel for the Appellants has contended that the deceased was repairing watches and was deriving income from mobile cards of Rs. 6000/- per month. On perusal of the evidence of AW1, I find that he has stated that the deceased was earning Rs. 6000/- per month and he was regularly contributing Rs. 4000/- to the household. But there is no evidence adduced by the Appellants to substantiate their said claim. In fact AW1 who was the father of the deceased was also a watch repairer and the deceased was assisting him in carrying out watch repairs. In cross examination itself AW1 admitted that his income is between 500/- to 1500/- per month by doing watch repairs. In such circumstances, I find that the tribunal was just to fix the earnings of the deceased at Rs. 1,500/- per month as no evidence has been adduced by the Appellants to the 6 contrary. Once it is established that AW1 who has been carrying business of watch repairs was earning Rs. 500/- to 1,500/- per month, the question of his son who was 21 years old and assisting him earning Rs. 6,000/- per month would not arise. No evidence has been adduced by the Appellants to substantiate their claim that the deceased was earning Rs. 6000/- per month. Dealing with the next contention that the deceased had income by selling mobile card, I find what AW1 has failed to disclose what income the deceased was deriving on that count. In fact AW1, admitted that his said son left Celltone in 1998 itself. He has further stated that he has no documents to show that he was selling mobile cards. No particulars about any such income has been produced by the Appellants on record. On perusal of the evidence on record, I find that the Appellants have failed to produce any evidence to substantiate their claim that the deceased was carrying out business of selling mobile cards and deriving an income thereof. As such the contention of learned Counsel for the Appellants that the deceased was earning by selling of mobile cards cannot be accepted. 10. Dealing with the next contention of learned Counsel with regard to interest payable during the pendency of the proceedings, I 7 find that considering the facts and circumstances of the case and that the accident occurred in the year 2001 and the prevailing interest payable by Nationalised banks during the said period the tribunal committed an error in awarding interest of 6 % per annum from the date of filing of the petition. Considering the facts and circumstances of the case and the delay in recovering the compensation, the interest payable should be fixed at 8 % per annum. To that extent only the impugned Judgment deserves to be modified. 11. In view of the above, I pass the following order i) The appeal is partly allowed. ii) The impugned judgment and award dated 31.01.2004 is modified only to the extent that the compensation awarded by the Tribunal shall carry interest @ 8 % per annum from 28.05.2001 upto actual payment. iii) The appeal stands disposed of accordingly with no order as to costs. F. M. REIS, J. MF/-