1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.406 OF 2005 1) Sow. Mangalbai w/o Nagnathappa Belure and Ors. - APPELLANTS VERSUS 1) Sunil s/o Shivram Bhanawade and anr. - RESPONDENTS ***** Mr.Ajit Kadethankar Advocate for Appellant; Mr.RM Deshpande, Advocate for Resp.No.1. Mr.VR Mundada, Advocate for Resp.No.2. ----- CORAM : K.U.CHANDIWAL, J. DATE : 8th January, 2010. PER COURT : 1) Heard Mr.Kadethankar for the original climant; Mr. Mundada for the insurance company and Mr. Ram Deshpande for owner/Respondent No.1. 2) The death of Rajkumar, driver of the truck, in an accident, having taken place on dated 17.5.2003 is not in dispute. 3) The short point in the matter is the 2 claimants assert, the deceased was drawing a monthly remuneration of Rs.4,000/- as salary from the owner/Respondent No.1 -Sunil, which aspect the respondent no.1 Sunil even in his pleadings and evidence has accepted. 4) The learned Judge has negatived this contention though the claimants have stated that deceased was drawing a salary of Rs.4,500/- per month and Respondent no.1/owner, having stated that he was making payment of Rs.4,000/-. The claimants could not, in the above set of facts, produce the documentation of showing the requisite salary. However,since the insurance company was agitating that it was not Rs.4,500/- or Rs.4,000/-, it was incumbent upon the insurance company to establish otherwise. No such exercise is done. The learned Judge, without assigning any reason, straight way arrived at a conclusion that the deceased was getting Rs. 2,000/- as salary as he was too young and obtained a license just before few days of the incident and he was 22 years old at the material time. This cannot be the ground to assess the monthly earnings which more leans as surmise of the learned Judge adding salt to the injury suffered by the bereaved family of the deceased, the claimants. 3 5) The age factor application of 221.37 ps. and multiplier of 50% is not in dispute, including the application of interest. In this scenario of the matter, the award of the learned Judge decreeing to Rs.2,21,370/- needs to be modified and instead thereof, the Award is to be made and it is accordingly made for Rs.4,42,740/- with simple interest @ 6% p.a. from 17.5.2003. The liability of the respondent is joint and several. 6) The appeal allowed to the above extent. (K.U.CHANDIWAL) JUDGE bdv/fa406.05