1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD 4. FA/718/2009 (Padmabai @ Laxmibai Narayan Sonar and others vs. Gopal Bhujangrao Pawar and another) --------------------------------------------------- Office notes, office Memoranda of Court’s or Coram,appearances, Court’s orders Judge’s or directions and Registrar’s orders Orders Mr. M.V.Ghadge, Advocate, h/f Mr. B.N.Gadegaonkar, Adv., for the appellant. Mr.S.G.Chaapalgaonkar, Adv., for respondent no.2. ... CORAM : K.U. CHANDIWAL, J. DATED : 6th July, 2009 ... P.C.:- 1. Heard learned Counsel. The matter is decided at admission stage. Counsel agree, for the purposes of orders to be passed, record need not be called. 2. In an unfortunate accident where the deceased was plying his Kinetic motor cycle, carrying luggage of Moong Dal, had a head on collision with Hero Honda Motor cycle bearing Registration No.MH-26-A-3037 and the deceased succumbed to the injuries. There is no controversy that the deceased had monthly earning of Rs.8081/- and he had eight years of service at his credit. The learned Judge deducted the pensions receivable by the family members from the 2 income and also deducted the amount of Rs.150/- towards professional tax and Rs.30/- towards Group Insurance Scheme. 3. The settled position of law is, the pensionary benefits need not be deducted while computing the compensation in the case of an employee meeting with an accident. Consequently, it follows, such deductions by the learned Judge were not within the parameters and warrant consideration. Its benefit, naturally, will be to the side of the claimants. The learned Judge has applied multiplier of 8, since the deceased was 50 years old. Even applying the scale as is provided under Section 163A, in the Schedule, it could have been between 11 to 13. Considering the facts of the present case, dependency of the claimants, since Smt.Padmabai, widow, is 45 years and deceased has three unmarried daughters, the multiplier is required to be applied at 11. 4. With the assistance of both the Counsel, calculations are carried, the annual earning of the deceased was Rs.96,972/-. Deducting one third amount therefrom, the annual earning would be Rs.70,040/-. Applying multiplier of 11, the amount will reach to Rs.7,70,440/-. The learned Judge in paragraph no.16 of judgment while dealing with the part of negligence answered the issues No.1 to 3 that there was 50 3 per cent negligence on the part of the deceased. Since the learned Judge has arrived at such finding, it was also equally incumbent upon him to have given it a thought while computing the compensation. The learned Judge has, though considered the negligence to be 50 per cent but, at the end of computation, did not reach with these calculations to its logical conclusion, to deduct the amount. 5. With the assistance of the Counsel, I had the occasion to verify the map at obverse of FIR which is indicative of head on collision and also shouldering responsibility of 50 per cent negligence by the deceased. The deceased has apparently not applied requisite force to control his vehicle to avert the collision with offending vehicle. 6. The claimants are aggrieved by the inadequate compensation. Counsel urged that since the Insurance Company has not challenged the findings or the award, it could not be heard in the matter. 7. The Counsel for the appellant rightly pointed out, the matter is at the admission stage, though Court is taking it finally, still, the Insurance Company, if has such choice to exercise, to file cross objection, its remedies are not foreclosed. I find substance 4 in the submission. The generosity shown by the Insurance Company in not filing the appeal, based on the ultimate calculations carried by the learned Judge awarding Rs.3,66,000/-, also needs consideration. 8. Be that as it may, the calculations ultimately reached after computing 50 per cent negligence of the deceased, to an amount of Rs.7,70,440/-, 50 per cent comes to Rs.3,85,250/-, to it an amount of Rs.14,750/- needs to be added towards the funeral expenses and consortium. Thus, the ultimate figure, the claimants could stake would be Rs.4,00,000/- (Rs.four lacs). 9. The contention of the Counsel that the claimants are entitled for an amount of Rs. 8,000,000/- (Rs.eight lacs), in the set of above situation, is beyond comprehension. I can see, there cannot be a fixed yardstick of calculations but, at the same time, there cannot be wild guesses, to arrive at a calculation as the claimants deem fit. Though golden scale need not be applied but, at the same time, the situation, the liability and the negligence also cannot be put to shelves. Considering all these aspects, coupled with the human life uncertainities, the family of the deceased getting retiral benefits prior to eight years of the expected retirement of the deceased, the incidental benefits the employee 5 has to his credit, the following would be the proper order. 10. The appeal is partly allowed. The claim is modified from Rs.3,66,000/- to Rs.4,00,000/- with the same interest. No costs. (K.U. CHANDIWAL) JUDGE agp/fa718-09