1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE First Appeal No.1042 of 2006 Smt. Sandhya Mangesh Jadhav Appellant Vs. 1. Shri Minanath Shankar Paravade 2. The Branch Manager, The United India Insurance Co. 3. Shri Ramchandra Tukaram Jadhav 4. Sou. Indira Ramchandra Jadhav Respondents Mr.Dilip Bodake for appellant. Mr.Suresh N. Bhosale for respondent no.2. Mr.R.A.Thorat for resp.nos.3 and 4. CORAM: B.H.MARLAPALLE & S.J.VAZIFDAR,JJ. April 28, 2009. ORAL JUDGMENT (PER B.H.MARLAPALLE,J.) 1. This Appeal filed under Section 173 of the Motor Vehicles Act, 1988 ("the Act" for short) arises from the award dated 7th March 2006 passed by the learned Member of the Motor Accident Claims Tribunal at Satara thereby partly allowing M.A.C.P. No.27 of 2003. The Tribunal has granted compensation under Section 166 of the Act to the appellant and respondent nos.3 and 4 jointly at Rs.6,35,000/- including the amount of No Fault Liability granted at Rs.50,000/-. In addition interest at the rate of 6 per cent per annum from the date of the application till realization has been also 2 awarded. Respondent no.3 - father of the deceased has been granted an amount of Rs.50,000/- and the balance amount has been directed to be divided between the applicant and the mother of the deceased in equal shares and from the said equal share an amount of Rs.1,00,000/- (Rupees one lakh only) has been directed to be invested in any nationalized bank in the name of the respondent no.4 i.e. the mother for a period of five years. The challenge in the appeal is limited on the following issues viz. (a) Computation of the amount of compensation which includes the fixation of monthly salary as well as the multiplier; (b) the interest awarded on the compensation amount; and (c) apportionment of the balance amount of compensation after deducting Rs.50,000/- (Rupees fifty thousand only) granted to the father. 2. The respondent nos.3 and 4 begot three sons and one daughter i.e. Rajesh, Mangesh, Mahesh and Padma. Mangesh was married to the appellant on 22/11/1998 and 3 it was a registered marriage. While driving a motorcycle he met with an accident on 22/7/2002 and died in the said accident. The appellant approached the Claims Tribunal praying for compensation of Rs.13,89,000/-. The respondent no.1 was the owner of the truck which had given a dash to the motorcycle and respondent no.2 was the insurer. None of them have challenged the impugned award by filing any cross appeal. 3. Deceased Mangesh was 29 years of age when he died and he was a graduate in Engineering (Civil). Initially he was self employed as a contractor and later on he came to be employed with M/s. B.G. Shirke & Co., a construction firm and as per the claimant he was drawing a monthly salary of Rs.6500/-. Respondent nos.3 and 4 opposed the application filed by the appellant on more than one grounds. At the first stage they claimed that the appellant was not a legally wedded wife, secondly it was stated that even otherwise, there was a divorce by consent between the appellant and the deceased and at the time the accident had taken place, the appellant was not cohabiting with the deceased. The respondent nos.3 and 4, therefore, claimed that the entire compensation must go to them. 4 4. On the issue of computation of compensation, the claimant examined PW 3 - Bhalchandra Bapurao Vabale to prove the monthly salary of the deceased. He was working as the Labour Officer with M/s. B.G. Shirke Construction Technology Ltd. In addition, the claimant examined PW 2 - Vijay Jagtap, a Clerk in the office of Sub Registrar, Satara and PW 4 - Pandurang Patne, a photographer. PW 3 verified the salary certificate at Exhibit 100. He stated that the deceased was employed as an Assistant Civil Engineer on the "NH-4, Pune-Satara Road, Package-II, Project Work" and his monthly salary was Rs.6500/- with the following break up: (a) Basic Rs.5250/- (b) HRA Rs. 650/- (c) Site allowance Rs. 350/- (d) Mess + Tea Rs. 250/- --------- Total Rs.6500/- ========= The Tribunal did not take into consideration the payment of allowances and accepted the monthly basic salary of Rs.5250/- and rounded off to monthly income at Rs.5000/-. Mr.Bodake, the learned counsel for the 5 appellant, therefore, submitted that the Tribunal committed an error in deducting the allowances. He has relied upon the judgment in the case of National Insurance Co. Ltd. Vs. Indira Srivastava & ors. [(2008) [(2008) [(2008) 2 SCC 763] 2 SCC 763] 2 SCC 763] and submitted that only income tax and other allowances which were for the benefit of the deceased only could have been deducted. As per Mr.Bodake, the payment of House Rent Allowance, Site Allowance and mess plus tea allowance could not have been deducted by the Tribunal. These submissions find support in the law laid down in the case of Indira Srivastava (Supra). In para 17 of the said Judgment, the Supreme Court stated thus, "The amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. We may, however, hasten to add that from the said amount of income, the statutory amount of tax payable thereupon must be deducted." 6 . Mr.Bhosale, the learned counsel for the insurer has supported the calculation made by the Tribunal on the dependency amount on the basis of the monthly income of Rs.5000/- of the deceased. However, the law laid down in Indira Srivastava’s case (Supra) does not permit deductions of perks which otherwise go to the family kitty and are not the allowances exclusively for the personal benefit of the deceased. Hence we will have to take monthly income of the deceased at the relevant time at Rs.6500/- and by providing for 1/3rd deduction for his expenses, the balance of 2/3rd amount i.e. Rs.4334/- will have to be taken into consideration for deciding the dependency amount. Hence the annual dependency would come to Rs.4334 x 12 = Rs.52,008/-. 4A. On the point of multiplier, there is no dispute that the deceased was of the age of 29 years and the highest multiplier in Second Schedule under Section 163A of the Act would be at 18 for the age group between 25 years to 30 years. In the instant case the multiplier has been fixed at 15. We have noted that the deceased did not have any child and the respondent no.3, the father of the deceased is an Advocate. Respondent nos.3 and 4 have two other sons i.e. Rajesh 7 and Mahesh. Rajesh is married sometimes in the year 1997 and he has his family and the same is the case of Mahesh. Rajesh holds Diploma in Civil Engineering and Mahesh has his own business as a plumbing contractor. Thus the dependents of the deceased are very limited and mainly the present appellant and her age at the relevant time was 25 years. We, therefore, deem it appropriate to fix the multiplier at 16. Thus the total compensation payable would come to Rs.4334 x 12 x 16 = Rs.8,32,128/- (Rupees eight lakhs thirty two thousand one hundred twenty eight only). In case the deceased had minor children and dependent parents even of advanced age, we could have been convinced to fix the multiplier above 16 and upto 18. For the reasons stated hereinabove, we do not find any justification to increase the multiplier beyond 16. 5. So far as the interest is concerned, it is submitted by Mr.Bodake that it ought to have been fixed at commercial interest / prevailing bank interest rates. He also pointed out that on the No Fault Liability amount, the very same Tribunal had granted interest at the rate of 9 per cent per annum. In the case of Abati Bezbaruah Vs. Dy. Director, General, Geological Survey of India & anr. [(2003) 3 SCC 148] [(2003) 3 SCC 148] [(2003) 3 SCC 148], 8 the Supreme Court held that having regard to the facts and circumstances of that case, interest would be payable at the rate of 9 per cent per annum. In the impugned award the Tribunal has not given any reasons as to why it preferred to fix the interest at 6 per cent. We deem it appropriate that the interest payable should be fixed at 9 per cent per annum, instead of 6 per cent per annum. 6. On the point of apportionment, Mr.Thorat, the learned counsel for the respondent nos.3 and 4 has supported the impugned award. As per him the Tribunal has followed the provisions of the Hindu Succession Act, 1956 and treated the widow as well as the mother of the deceased as the equal sharers in the compensation. As noted earlier, the father of the deceased is an Advocate and there are two more sons supporting respondent nos.3 and 4 i.e. Rajesh and Mahesh. Respondent no.3 cannot be treated to be dependent upon the deceased and the dependency of respondent no.4 on the deceased would be limited to 1/3rd. It has come in the evidence of the appellant that at the time of the accident the deceased was not staying with his parents and the appellant and the deceased were staying in rental premises at Shirval 9 which was the working place of the deceased. It is also to be noted that there is no evidence to show that the deceased was contributing any fixed amount either monthly or annually to his parents. In our opinion, the Tribunal was not justified in law to hold that the amount will be equally divided between the widow and the mother of the deceased. No doubt the mother will be entitled for some compensation but she cannot be given half share in the compensation amount. The Tribunal directed an amount of Rs.1,00,000/- (Rupees one lakh only) to be invested in fixed deposit in the name of the respondent no.4 - mother and we deem it appropriate that her compensation share should be limited only to that extent and the balance amount of compensation by deducting Rs.50,000/- (Rupees fifty thousand only) awarded to the respondent no.3, ought to be given to the appellant. 7. In the premises, this appeal succeeds partly and it is held that the total amount of compensation will be Rs.8,32,128/- (Rupees eight lakhs thirty two thousand one hundred twenty eight only) including Rs.50,000/- already paid towards NFL. Out of the said compensation amount, Rs.50,000/- (Rupees fifty thousand only) shall be paid to the respondent no.3 and 10 Rs.1,00,000/- (Rupees one lakh only) shall be paid to the respondent no.4. The fixed deposit amount of Rs.1,00,000/- shall be the total share of respondent no.4. The entire balance amount of compensation shall be payable to the appellant. On the compensation amount interest at the rate of 9 per cent per annum from the date of application till realization shall be payable to the applicant and respondent nos.3 and 4 on their respective shares. 8. Costs in cause. 9. Payment of balance Court fees shall be as per the Rules. 10. The Registry to issue a fresh award in the above terms. 11. Mr.Thorat submitted an oral application on behalf of the respondent nos.3 and 4 to stay the operation of this award. The application is rejected. (S.J.VAZIFDAR,J.) (B.H.MARLAPALLE,J.)