:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 78 OF 1998 WITH CIVIL APPLICATION NO. 2199 OF 2007 1. Bombay Transport Company, Shiwri, Bombay - 400015 2. United India Insurance Co. Ltd. Fort, Bombay 400 001 ..Appellants Vs. 1. Shri Hariram @ Bapu Balkrishna Anekar 2. Smt. Sandhya Hariram Anekar 3. Kumar Nilesh Hariram Anekar, Minor brother through his father respondent no.1. ..Respondents Mr. R.S. Datar for appellants. Ms. Vishranti Navale for respondent nos.1 to 3. CORAM: CORAM: CORAM: B.H. B.H. B.H. MARLAPALLE,J. MARLAPALLE,J. MARLAPALLE,J. Reserved Reserved Reserved on on on : March 28, 2008. : March 28, 2008. : March 28, 2008. Pronounced Pronounced Pronounced on : on : on : April 04, 2008. April 04, 2008. April 04, 2008. JUDGMENT: JUDGMENT: JUDGMENT: 1. This appeal is directed against the order passed by the learned Member of Motor Accident Claims Tribunal, Thane on 12/6/1996 thereby partly allowing Motor Accident Claim Application No. 400 of 1990. The claimants had submitted before the Tribunal that :2: Sanjay was the elder son of Claimant Nos.1 and 2 and elder brother of Claimant No.3 and he was on visit to Thane in January - February, 1990. While he was standing at the signal point near Nitin Company, the motor tanker bearing registration No.MHT 3178 owned by the present appellant no.1 and insured with the appellant no.2 had dashed him at about 6 p.m. on 3/2/1990 and in the said accident, Sanjay died. He was of 19 years of age and they claimed that he was engaged in the family business, in addition, being a student of B.Com., First year. The claimants had claimed that the deceased was earning about Rs.5000/- per month by contributing to the family business and they claimed compensation of Rs.5,00,000/-. However, the Tribunal accepted that the deceased was a partner of M/s. Calicut Agro Industries along with his mother (Claimant No.2) and assessed his monthly income at Rs.2400/- by following the decision in the case of General Manager, Kerala State Road Transport Corporation, Trivendrum Vs. Susamma Thomas and ors. [(1994) 2 SCC 176]. The Tribunal noted that the deceased would be married about six years later and, therefore, 1/3rd amount of his monthly income was deducted towards his personal expenses for six years :3: and subsequently he would be married and, therefore, 2/3rd of his monthly income was deducted. The Tribunal in this fashion awarded a total compensation of Rs.2,10,000/-. 2. So far as the appeal of the Insurance company is concerned, the same is required to be considered only on limited grounds available under Section 149(2) of the Act as has been held by a three-Judge Bench in the case of Sadhana Lodh Vs. National Insurance Co. Ltd. & anr. [(2003) 3 SCC 524] [(2003) 3 SCC 524] [(2003) 3 SCC 524]. Their Lordships in para 4 of the said judgment stated thus, "It is not disputed that under Section 173 of the Act, an insurer has right to file an appeal before the High Court on limited grounds available under Section 149(2) of the Act. However, in a situation where there is a collusion between the claimant and the insured or the insured does not contest the claim and further, if the Tribunal does not implead the insurance company to contest the claim, in such a situation it is open to an insurer to seek permission of the Tribunal to contest the :4: claim on the ground available to the insured or to a person against whom a claim has been made. If permission is granted and the insurer is allowed to contest the claim on merit, in that case it is open to the insurer to file an appeal against the award of the Tribunal on merits. Thus, in such a situation, the insurer can question the quantum of compensation awarded by the Tribunal." . None of the grounds reproduced hereinabove and laid down by their Lordships are made out on behalf of the insurance company i.e. appellant no.2 and, therefore, by following the said law the present appeal will have to be treated only by the appellant no.1 i.e. the owner of the subject vehicle. 3. The factum of incident and the involvement of the appellant no.1’s vehicle has not been disputed by Mr.Datar, who confined his arguments only to the extent of the assessment of the monthly income of the deceased. I have gone through the R & P and the purported Partnership Deed between the Claimant No.2 :5: and the deceased was not registered and, therefore, whether the said Partnership Deed was in existence prior to the date of incident is doubtful. The Claimant No.1 in his depositions before the Tribunal had stated that the deceased was working since January 1989 as Production In-charge of Shivshakti Oil Industries run by the said Claimant and the said firm was manufacturing coconut oil. He further stated that Sanjay was earning about Rs.2000/- per month by way of his salary. However, no specific document was brought on record to support the contentions that M/s. Shivshakti Oil Industries was paying the salary of Rs.2000/- per month to Sanjay. Mr.Datar, therefore, relied upon a judgment of this Court (DB) in the case of Madhav Sakharam Shilotri and ors. vs. State of Maharashtra and ors. [1997 ACJ 857] and submitted that on the basis of the age of the deceased and the fact that he was a student of B.Com. some guess work to determine the monthly income of the deceased would be made, but at the same time his income at Rs.2400/- fixed by the Tribunal cannot be accepted. In the case of Madhav, the deceased was of the age of 19 years and was a student of Engineering and Technology College. This court observed that he would have earned at least :6: Rs.2000/- to Rs.2500/- per month on completion of the said course. In the instant case, the deceased would have completed B.Com. in another two years’ period and certainly would have earned at least Rs.2000/- per month. The learned counsel for the claimants submitted that income assessed by the Tribunal is reasonable and should not be disturbed. As noted earlier, the documents on record do not support the assessment of the Tribunal to fix income of the deceased at Rs.2400/- per month and I am of the considered opinion that the monthly income of the deceased would be safely fixed at Rs.2000/- per month. The Tribunal has accepted the multiplier of 14 and the claimants have not filed any appeal by following a methodology adopted by the Tribunal. 1/3rd of Rs.2000/- will have to be deducted for the first six years and for the remaining eight years 2/3 of the income will have to be deducted. Thus the calculation would be as under:- Rs.1400 X 12 = 16,800/- Rs.16,800 X 6 = 1,00,800/- :7: Rs. 700 X 12 = 8,400/- Rs. 8,400 X 8 = 67,200/- Total Compensation Rs.1,00,800+67,200=Rs.1,68,000/- In addition, conventional amount of Rs.5000/- was funeral expenses and a further amount of Rs.13,000/- towards expenses to take the dead body from Thane to Calicut, as granted by the Tribunal will have to be accepted over and above the compensation. Thus, the total claim comes to Rs.1,86,000/-. 4. In the premises, the appeal is allowed partly and it is directed that the original opponents shall jointly and severally pay an amount of Rs.1,86,000/- inclusive of No Fault Liability, if any, with interest at the rate of 12% per annum from the date of the application i.e. 3/8/1990 to the claimants. Both the original opponents shall jointly and severally pay the proportionate costs to the Claimants. The amount deposited, if any, will be allowed to be withdrawn by the claimants to the extent of the above decree and, :8: if any, further amount is due to the claimants, consequent to this order, the same shall be paid by the appellant to the claimants within a period of eight weeks from today. It is further clarified that if the amount of compensation has already been deposited by the appellants, the interest @ 12% shall be payable till the date of such deposit. 5. In view of the above, Civil Application No.2199 of 2007 does not survive and same shall stand disposed off. (B.H. (B.H. (B.H. Marlapalle,J.) Marlapalle,J.) Marlapalle,J.)