1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 106 OF 2006 1. Shri Topayo alias Topiyo Ganesh Khutkar son of Ganesh Khutkar aged 56 years, married, and his wife. 2. Smt. Shashikala alias Shashi Topayo Khutkar alias Shashikala Antu Gaonkar, aged 46 years, both residents of house No.339, Talsai, Dharbandora, Sanguem Goa. ... Appellants versus 1. Shri Gopal Laxman Gaonkar son of Laxman Gaonkar, major in age, driver of vehicle bearing registration number GA-01-W-1074, resident of house No.264, Thana, Sattari Goa. 2. M/s Dessai Bricks owner of vehicle bearing registration number GA-01-W-1074, resident of 19, Kerkar Building, Ponda Goa. 3. National Insurance Company Ltd. insurer of vehicle bearing registration number GA-01-W-1074, with its branch Office at Ponda Goa. ... Respondents 2 Shri S. S. Kakodkar, Advocate for the Appellants. Shri E. Afonso, Advocate for Respondent No.3. CORAM : F. M. REIS, J. DATE : 29TH APRIL, 2011. ORAL JUDGMENT The above appeal challenges the Judgment and Award dated 21-1-2006 passed by the learned Motor Accident Claims Tribunal, South Goa, Margao in Claim Petition No.177 of 2003. 2. The Claim Petition came to be filed by the Appellants who are the parents of the deceased who died in the motor accident on 8-12-2002 whilst proceeding on his motorcycle bearing No.GA-02-Q- 1841 from Kankeri to Guleli. It was the contention of the Appellants that they were entitled for a compensation to the tune of Rs.5,75,000/-. The Tribunal after framing the issues and recording the evidence has ordered compensation to the tune of Rs.3,17,000/- together with interest at the rate of 6% per annum from the date of filing of the petition till realization. The Appellants being aggrieved by the said Judgment have preferred the present appeal. 3 3. Shri S. S. Kakodkar, learned Counsel appearing for the Appellants has assailed the impugned Judgment on two counts. It is his contention that the Tribunal fixed the compensation on the basis that the salary of the deceased was Rs.3000/- per month and that the salary certificate produced by the Appellants was that the deceased was getting a salary of Rs.4000/- per month. Learned Counsel further pointed out that the Tribunal has erroneously come to the conclusion that Rs.4000/- was the gross income and after deduction computed the salary as Rs.3000/- per meter. The next grievance raised by the Appellants is that even assuming that the Judgment of the Apex Court reported in ((2009) 6 SCC 121) in the case of Sarla Verma(Smt) and others v. Delhi Transport Corporation and another is taken into consideration, though the Appellants were the parents of the deceased, the amount to be deducted on account of personal expenditure should be to the extent of one-third and not 50%. In the facts and circumstances of the case, learned Counsel pointed out that the circumstances disclose that besides the parents who are the claimants in the Claim Petition the income of the deceased was being utilized also by the members of the family which included his brother and two sisters who were minors at the relevant time. Learned Counsel further pointed out that in such circumstances, 4 deduction on account of personal expenses is to be fixed at one-third. He accordingly prayed that the impugned Judgment be modified. 4. Shri E. Afonso, learned Counsel appearing for the Respondent No.3 has disputed the contentions of the Appellants. Learned Counsel has pointed out that the certificate cannot be accepted as according to him there was a challenge to the certificate in the cross- examination of the Appellant No.2. Learned Counsel has taken me through the evidence of AW1 as well as the evidence of AW6 and pointed out that the evidence discloses that the authenticity of the certificate at Exh.35 is disputed. Learned Counsel further submitted that the Appellants failed to establish that the salary of the deceased was Rs.4000/- per month and as such, the compensation assessed by the Tribunal cannot be said to be unjust. With regard to the next submission of the learned Counsel appearing for the Appellants, Shri Afonso, learned Counsel submitted that there is no question of effecting any deduction of one-third towards personal expenses considering the Judgment reported in Sarla Verma(Smt) and others v. Delhi Transport Corporation and another(supra) which stipulates that in cases in which a deceased is a bachelor and the claimants are the parents, 5 the deduction on account of personal expenses needs to be 50%. Learned Counsel further submitted that the Appellants have failed to establish that the minors were dependant upon the deceased and consequently the question of awarding compensation would not arise. Learned Counsel further submitted that even assuming that the salary of the deceased is to be accepted at Rs.4000/- per month, considering the multiplier as stipulated in the said Judgment in the case of Sarla Verma(Smt) and others v. Delhi Transport Corporation and another(supra) on the basis of the age of the father, the multiplier to be applied in the present case would be 11 and not 13 as determined by the Tribunal. Learned Counsel as such pointed out that in case such multiplier is applied, the compensation which the Appellants have withdrawn is in excess. Learned Counsel as such submitted that the appeal deserves to be rejected. 5. Having heard the learned Counsel and on perusal of the records the point for consideration is whether the Tribunal was justified to award compensation of Rs.3,17,000/- to the Appellants. 6 6. On perusal of the evidence on record, there is no dispute that by a document produced by the Appellants at Exh.35 the same discloses that the deceased was a mechanical operator and was earning Rs.4000/- per month. The said certificate was duly exhibited. AW6/Subhash Naik in his cross-examination has further stated that the said deceased was working with him for about three years prior to the accident. He has further stated that he had maintained the muster roll and his name appears from the beginning of his appointment. He has also stated that he could produce the appointment letter. In his further cross- examination, he has denied the suggestion that he had given a false salary certificate in favour of the Appellants to claim compensation at a higher level. On scanning the evidence of the Appellants, there can be no dispute that the deceased was working as an operator in the establishment of AW6. There is no suggestion to the contrary to that effect put by the Respondents. The certificate which has been produced by the Appellants which is at Exh.35 discloses that the salary of the deceased was Rs.4000/- per month. Apart from that, the learned Judge whilst passing the impugned Judgment has not doubted the authenticity of the said salary certificate. Even in the cross-examination by the Respondents, there is no serious challenge to the authenticity of the said 7 document at Exh.35. The Tribunal after accepting the genuineness of the said certificate was not justified to hold that the amount of salary disclosed therein was the gross salary of the deceased. There was no suggestion to that effect put in the cross-examination of AW6. There was no material before the Tribunal to come to such conclusion. As such, the salary of the deceased would have to be accepted as Rs.4000/- per month. 7. Dealing with the contention of Shri S. S. Kakodkar, learned Counsel appearing for the Appellants to the effect that the amount to be deducted on account of personal expenses should be one-third and not 50%. I find that the Appellants in their evidence had produced the ration card of the family at Exh.20. On perusal thereof, the ages of the two sisters of the deceased appear to be 14 and 16 at the relevant time, besides the son who was 17 years at the relevant time of the accident. In the Judgment of the Apex Court in the case of Sarla Verma(Smt) and others v. Delhi Transport Corporation and another(supra) at para 32 the Apex Court has held thus:- 8 “32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non- earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third”. 8. In the present case, it is the case of the Appellants that the family of the deceased was also consisting of the said two sisters which were minors at the relevant time. As per the evidence of AW1, it appears that the father also had his own independent income. In such circumstances, considering that the ages of the said sisters and the brother were minors at the relevant time, and as the father had an independent income, I find that there is no justification for deducting one-third instead of 50% as determined in the case of Sarla Verma(Smt) and others v. Delhi Transport Corporation and another(supra) on account of personal expenses. The father having independent income would be able to meet the expenses of his children who were minors at 9 the relevant time. It is also to be noted that the father of the deceased who is the Appellant No.1 has also not entered into the witness box. There is no justification why he had not entered the witness box to disclose his source of income. This also establishes that the father was shying away from deposing before the Tribunal. Considering the overall evidence on record, I find that the deduction in the present case would have to be 50% in accordance with the Judgment of the Apex Court in Sarla Verma(Smt) and others v. Delhi Transport Corporation and another(supra). 9. On the basis of the evidence on record, the salary of the deceased is to be accepted as at Rs.4000/- per month. As the father of the deceased had his independent income the multiplier would have to be applied on the basis of the age of the mother in the present case considering the said Judgment of Sarla Verma(Smt) and others v. Delhi Transport Corporation and another(supra). The Birth Certificate produced by the Appellants of the mother was 43 years old on the date of the accident. As such, the multiplier to be applied would be 14. For the reasons aforesaid 50% would have to be deducted on account of personal expenses. After such deduction and applying the 10 multiplier of 14, the amount works out to Rs.3,36,000/-. Besides the said amount the Appellants would be entitled for a sum of Rs.2000/- on account of funeral expenses and Rs.2500/- on account of loss of estate. The amount as such works out to Rs.3,40,500/-. The point for determination is answered accordingly. 10. In view of the above, I pass the following order:- ORDER 1. The Appeal is partly allowed. 2. The impugned Judgment and Award is modified and the amount of compensation awarded to the Appellants is fixed at Rs.3,40,500/- together with interest at the rate of 6% per annum from the date of filing the claim petition till actual payment. 3. Any amount paid under Section 140 of the Motor Vehicles Act would have to be deducted from the said amount of compensation. F. M. REIS, J. RD