1 25 fa.1766.09 anr ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1766 OF 2009 WITH CIVIL APPLICATION NO. 4513 OF 2009 IN FIRST APPEAL NO. 1766 OF 2009 The New India Assurance Co. Ltd. ... APPELLANT Vs. Smt. Pragati Vijay Yevale and ors. ... RESPONDENTS ­­­­­­­­ Mr. Sandeep S. Jinsiwalle for the Appellant. Dr. Prakash K. Deshmukh for Respondent Nos. 1 to 3. ­­­­­­­­ CORAM : A.M. KHANWILKAR and A.A. SAYED, JJ. DATE : 26 th July, 2010. P.C. 1 Heard. 2 Appeal is admitted. Learned counsel for the Respondent Nos.1 to 3 waive service of notice. 3 By consent appeal is taken up for final disposal forthwith. 2 25 fa.1766.09 anr 4 This appeal by the Insurance Company takes exception to the judgment and order passed by the learned Member of Motor Accident Claim Tribunal, Satara dated 16 th May, 2009 in M.A.C.P. No. 24 of 2006. The operative order reads thus: “O R D E R 1. The claim petition is partly allowed with proportionate costs. 2. The Opponents No. 1 & 2 do jointly or severally pay or deposit in the Court compensation of Rs. 26,91,600/­ to the applicants with future interest thereon @ Rs.8% p.a from the date of petition until realization U/Sc.166 of M.V.Act, minus N.F.L. amount if any paid to the applicants. 3. After depositing the aforesaid amount in the Court, an amount of Rs.10,00,000/­ be deposited in any Nationalized Bank jointly in the name of applicant No.1 & 2 during the period of minority of applicant No.2 and then that may be paid to him along with interest. 4. Out of remaining amount, an amount of Rs. 5,00,000/­ be deposited in the name of applicant No.1 in any Nationalized Bank for the period of 5 years and that she shall be entitled to receive periodical interest thereon for the maintenance of herself and child. 5. The entire remaining amount with interest be equally distributed between the applicant No.1, 3 & 4 by A/C Payee cheques. 6. Award be drawn accordingly.” 5 The principal grievance before this Court is that the quantum 3 25 fa.1766.09 anr determined by the lower Court is improper. In that, the Tribunal has considered the income of the deceased at Rs.3000/­ per month towards grocery business. This is in spite of the finding recorded that the said grocery business was stopped at the relevant time. The Tribunal went on to observe that it was not always possible to produce the account books of such business run in village, but then proceeded to assume that the deceased must have earned minimum income of Rs.3000/­ per month from the said business. The criticism of the Appellant is that the view so taken is founded on surmises and conjectures and not substantiated by any legal evidence. We are in agreement with this criticism. Even the counsel for the Respondents is not in a position to point out any legal evidence to substantiate the position that the deceased was earning minimum income of Rs.3000/­ per month from the said grocery business. On the other hand, as noticed earlier, the Tribunal having found as of fact that the said business was already stopped ought not to have assumed that the deceased could have earned income from such business. The non­production of any account books or supporting documentary evidence such as purchase/ sale bills etc. or any income tax return to justify such income, adverse inference ought to be drawn against the claimants. Suffice it to observe that for want of legal evidence to substantiate the fact that the deceased on the relevant date was earning minimum income of Rs.3000/­ per month from the said grocery business, that finding is unsustainable. 4 25 fa.1766.09 anr 6 Insofar as other amounts referred to in the impugned decision in paragraph No.24 are concerned, we have no hesitation in taking a view that the same is supported by the legal evidence. In that view of the matter, we would uphold the opinion of the Tribunal about the income of the deceased from the other source. Thus on excluding the income of Rs.3000/­ from the grocery business, the net aggregate income would be Rs.16,368/­ per month. We also uphold the deduction provided by the Tribunal to the extent of 1/3 rd of the net aggregate monthly income towards dependency. On applying this principle as is stated by the counsel for the Appellant, the total compensation amount would work out to Rs.1,30,944/­ (i.e. 16,368 x 12 = 1,96,416 – 65,472 (1/3 rd amount of dependency) = 1,30,944). Considering the age of the deceased at the time of his death, it is not in dispute that multiplier of 17 would be applicable to the present case. In that view of the matter, the amount of compensation payable to the claimants would workout to Rs. 22,26,048/­. In other words, the amount awarded by the Tribunal is in excess by Rs.4,65,552/­. We are also in agreement with the future interest component provided by the Tribunal to be paid on the said amount to the claimants. For the aforesaid reasons, the operative part of the impugned order would now read thus : “O R D E R 1. The claim petition is partly allowed with proportionate costs. 5 25 fa.1766.09 anr 2. The Opponents No. 1 & 2 do jointly or severally pay or deposit in the Court compensation of Rs. 22,26,048/­ to the applicants with future interest thereon @ Rs.8% p.a from the date of petition until realization U/Sc.166 of M.V.Act, minus N.F.L. amount if any paid to the applicants. 3. After depositing the aforesaid amount in the Court, an amount of Rs.10,00,000/­ be deposited in any Nationalized Bank jointly in the name of applicant No.1 & 2 during the period of minority of applicant No. 2 and then that may be paid to him along with interest. 4. The entire remaining amount with interest be equally distributed between the applicant No.1, 3 & 4 by A/C Payee cheques. 5. Award be drawn accordingly.” 7 The next question is regarding the nature of direction to be issued to the Respondents for return of the surplus amount of Rs. 4,65,552/­. Instead of directing the Respondents to return the said 6 25 fa.1766.09 anr amount from the amount already withdrawn by them in terms of the order of the Tribunal, we have dispensed with the condition of investing the amount of Rs.5,00,000/­ in fixed deposit scheme in the name of Applicant No.1. The amount of Rs.5,00,000/­, which has been invested in the name of Applicant No.1 in a Nationalized Bank for a period of five years as per the impugned decision, be withdrawn and will have to be made over to the Insurance Company. 8 We have resorted to that option as the learned counsel for the Respondents stated on instructions that it is not possible to bring back the amount already withdrawn, as the Respondents have already distributed the said amount between the three applicant Nos.1, 3 and 4, as per the order of the Tribunal and has been reinvested or utilized suitably. 9 In the circumstances, we proceed to pass the following order : I. The Appeal is partly allowed. The compensation amount is reduced to Rs.22,26,048/­. The impugned order/ decree stands modified on terms mentioned in paragraph 6 above. II. Further, the Respondents are directed to encash 7 25 fa.1766.09 anr the investment made in a Nationalized Bank in the name of the Applicant No.1 for a sum of Rs. 5,00,000/­ and remit amount of Rs.4,65,552/­ to the Appellant within three weeks from today. The Respondents undertake through counsel to comply with this requirement. That undertaking is accepted. III. The amount of Rs.25,000/­ deposited by the Appellant at the time of institution of this appeal be refunded to the Appellant. IV. No order as to costs. V. Decree be drawn, accordingly. [ A.A. SAYED, J ] [ A.M. KHANWILKAR, J ]