1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.1018 OF 2009 Ajit Bajirao Pawar ..Appellant Age : major, Occu : Business R/o.2018, E Rajarampuri, 3rd lane District  Kolhapur. V/s. 1. Smt.Rajshree Shahaji Shewale Age : 38 yrs, Occu : Household R/o.Gotkhindi, Tal.Walwa, District  Sangli. 2. Kum. Priyanka Shahaji Shewale Age : 17 yrs, Occu : Education R/o.Gotkhindi, Tal.Walwa, District  Sangli. 3. Kumar Pruthviraj Shahaji Shewale Age : 13 yrs, Occu : Education R/o.Gotkhindi, Tal.Walwa, District  Sangli. ..Respondents 4. The National Assurance Co. Ltd. Divisional Office, Near vateshwar Mandir, Station Road, Kolhapur. Mr.Abhijit Adgule, Advocate, for the appellant Mr.S.G.Thorat, Advocate, for the respondent Nos.1 to 3 Mr.Sanjay Krishnan i/b.Ms.Harshada Rane, Advocate, for respondent No.4 WITH 2 FIRST APPEAL NO.640 OF 2009 1. Smt.Rajshree Shahaji Shewale Age : 38 yrs, Occu : Household 2. Kum. Priyanka Shahaji Shewale ..Appellants Age : 17 yrs, Occu : Education 3. Kumar Pruthviraj Shahaji Shewale Age : 13 yrs, Occu : Education All the Appellants are R/o.Gotkhindi, Tal.Walwa, District  Sangli. Versus 1. Ajit Bajirao Pawar Age : Major, Occu : Business R/o.2018, E Rajarampuri, 3rd lane District  Kolhapur. ..Respondents 2. The National Assurance Co. Ltd. Divisional Office, Near vateshwar Mandir, Station Road, Kolhapur. Mr.S.G.Thorat, Advocate, for the appellants Mr.Abhijit Adgule, Advocate, for respondent No.1 Mr.Sanjay Krishnan i/b.Ms.Harshada Rane, Advocate, for respondent No.2 CORAM : C. L. PANGARKAR, J. DATE : 25TH JANUARY, 2010 3 COMMON JUDGMENT . These two Appeals can be disposed of by a common Judgment since both the First Appeals arise out of the same Award passed by the Motor Accident Claims Tribunal. 2. First Appeal No.1018 of 2009 is filed by the owner of the vehicle since the entire liability has been fastened on him instead of Insurance Company while First Appeal No.640 of 2009 is filed by the original claimant for enhancement of the compensation awarded. 3. The facts giving rise to the Appeals are are as under :- One Shahaji Babaso Shevale was serving as a peon in the Panchayat Samittee at Shirala, District  Kolhapur. On 29 th August, 2006 he was coming back home to Islampur in his friend's car. The car was being driven in a rash and negligent manner. The car as a 4 result of which turned turtle. Shahaji suffered injuries and died of those injuries. The original respondent No.1 is the owner of the vehicle while respondent No.2 is the Insurance Company. It is alleged that the deceased was 42 years of age at the time of death. He met with an accident. His salary was Rs.6200/- per month. The compensation of Rs.21,00,000/- was claimed. 4. The said application was opposed by the respondent Nos.1 & 2 by filing Joint Written Statement. It is not disputed that the vehicle is insured with respondent No.2 but it was disputed the accident had occured due to negligence of the driver. 5. The learned Judge of the Tribunal considered the evidence and awarded compensation of Rs.6,50,000/-. Feeling aggrieved thereby the claimant as well as the respondent No.1 preferred these Appeals. 5 6. I have heard the learned counsel for the Appellants and respondents. 7. I shall first deal with the question as to whether the claimants are entitled to enhancement of the compensation. The deceased Shahaji at the time of death was 42 years old and in service of the Panchayat Samittee i.e. Zilla Parishad. His salary is said to be Rs. 6,500/- per month. He had left behind him two children aged 17 years, 15 years and a widow aged 36 years. The claimant has placed Pay Slip on record by examining an employee from the office. The Gross Salary is shown to be Rs.6,940/- per month. After the deduction of Government Provident Fund, Profession Tax and Insurance, the take home salary is shown to be Rs.6,000/-. It was contended that these deductions should not be taken into account and the gross salary should be taken as salary for the purpose of these two Appeals. The 6 submission is not correct. The learned Judge has rightly taken salary at Rs.6,000/- per month. 8. It was further contended that the learned Judge should have added 30% in the total salary towards the future prospects. The learned counsel submits that the deceased was only 42 years old and would have continued in service upto 60 years. Therefore, his 18 more years' service was left. He also submits that by this time his salary would have increased a lot and he would have even been promoted. It was also submitted that he would have got the benefits of the rise in the pay advised by the Pay Commission. For these propositions he relied upon the decision of the Supreme Court in the matter of Sarla Verma and others v. Delhi Transport Corporation and another reported in 2009 ACJ 1298. The Supreme Court has observed as under :- 11. In Susamma Thomas, 1994 ACJ 1 (SC), this court increased the income 7 by nearly 100 per cent, in Sarla Dixit, 1996 ACJ 581(SC), the income was increased only 50 per cent and in Arati Bezbaruah, 2003 ACJ 680 (SC), the income was increased by a mere 7 per cent. In view of imponderables and uncertainties, we are in favour of adopting as a rule of thumb, an addition of 50 per cent of actual salary to the actual salary income of the deceased towards future prospects, where the deceased had a permanent job and was below 40 years. (Where the annual income is in the taxable range, the words 'actual salary' should be read as 'actual salary less tax'). The addition should be only 30 per cent if the age of the deceased was 40 to 50 years. There should be no addition where the age of the deceased is more than 50 years. Though the evidence may indicate a different percentage of increase, it is necessary to standardize the addition to avoid different yardsticks being applied or different methods of calculations being adopted. Where the deceased was self-employed or was on a fixed salary (without provision for annual increments, etc.), the courts will usually take only the actual income at the time of death. A departure therefrom should be made only in rare and exceptional cases involving special circumstances. 9. Obviously, a sum equivalent to 30% will have to be added towards future prospects. Salary will have to be taken as 8 Rs.7,800/-. The Supreme Court in the same decision further says that deduction of 1/3rd towards personal expenses is not correct in all cases and observed as under :- 14.Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra's case, 1996 ACJ 831 (SC), the general practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased should be one-third (1/3rd) where the number of dependent family members is 4 to 6; and one-fifth (1/5th) where the number of the dependent family members exceed six. 10. The deceased left behind him three dependents. Obviously as observed by the Supreme Court, the deduction has to be 1/3rd. After deducting 1/3rd salary what remains for the purpose of loss of income comes to Rs. 5,200/- P.M. The Supreme Court also lays down when the death of the deceased was between 41 to 45 years, multiplier should be 14. Loss of income would therefore, come to Rs.62,400/- 9 per annum. This will have to be multiplied by the multiplier of 14. Rs.62,400/- x 14 = Rs. 8,73,600/-. Besides this, the Tribunal has awarded Rs.10,000/- towards funeral expenses and Rs.30,000/- towards loss of consortium. Thus, the total amount which the Tribunal should have awarded comes to Rs.8,73,600/-. 11. This takes me to the question if the entire liability or part of the liability could be fastened on the respondent No.2  Insurance Company. The learned Judge of the Tribunal on the basis of policy observed that the risk of the passenger is not covered. The deceased was gratuitious passenger, is not at all disputed. He was, therefore, not fare paying passenger. I am taken through the policy. On the basis of it, the learned counsel for the appellant contends that the person travelling in a car is covered by policy as per Section II(1)(i) which reads as follows :- 10 (i) death of or bodily injury to any person including occupants carried in the vehicle (provided such occupants are not carried for hire or reward) but except so far as it is necessary to meet the requirements of Motor Vehicles Act, the Company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured. 12. There is no doubt upon reading this clause that gratuitious passenger is covered by the policy but if the Schedule is seen, it would be clear that five passengers are covered and a premium of Rs.250/- is paid for five passengers. It is further clear that risk covered is only upto Rs.1,00,000/-. Thus, it is also clear that the Insurance Company was liable but only to the extent of Rs.1,00,000/-. Both these Appeals will therefore have to be allowed partly. The original claimants shall be entitled to Rs. 8,73,600/- instead of Rs.6,50,000/- as ordered by the Tribunal. The original respondent No.2  The National Assurance Company's liability is Limited to Rs.1,00,000/-. It shall pay Rs. 11 1,00,000/- out of total compensation of Rs. 8,73,600/- and shall also pay 9% interest on Rs.1,00,000/- from the date of application. The claimants shall also be entitled to interest of 9% on the amount recoverable from the respondent No.1 i.e. the owner of the vehicle. 13. Out of the amount of the compensation payable to the claimants Rs.3,00,000/- in cash be paid to all the claimants together. Rest of the amount be deposited in equal proportion in the name of the claimant Nos.1 to 3 for the period of five years. However, the claimants shall be entitled to withdraw an amount if the necessity is shown to the satisfaction of the Judge of the Tribunal. (C.L.PANGARKAR, J.)