1 fa-794-10 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 794 OF 2010 United India Insurance Co. Ltd. .. Appellant Vs. 1. Smt. Roopali Nitin Rao and ors. .. Respondents Mr. Amol Gatne for appellant. Mr. T.J. Mendon for respondent nos.1 to 3. CORAM: B. H. MARLAPALLE & A. A. SAYED, JJ. August 23, 2010. P.C. 1. We have heard Mr. Gatne, the learned counsel for the appellant – Insurance Company. 2. Shri Nitin Rao working as a Lecturer since 22/9/1994 at Bhausaheb Vartak Polytechnic met with an accident while driving his 2 fa-794-10 motorcycle bearing Registration No. MH-04-BC-985 on 5/2/2006 at about 7.45 a.m. on Vasai Road. Said motorcycle was dashed from behind by a motor car bearing No. MH-04-CM-983 near Leela Society and in the said accident he died. 3. The respondents, therefore, filed Claim Application No. 1472 of 2006 before the Motor Accident Claims Tribunal for Mumbai claiming a compensation of Rs.50 lacs. It was claimed that the deceased was about 38 years of age, had chances of promotion with his qualifications of masters in engineering. The claim was opposed by the present appellant and the owner of the vehicle i.e. present respondent no.5 did not file any written statement so as to oppose the claim. Claimant No.1 is the wife of the deceased with Claimant Nos.2 and 3 as her minor children and Claimant No.4 is the mother of the deceased. The application was opposed by the appellant on the ground that the drivers of both the vehicles had contributed in negligent driving which was a cause of accident. In addition, the appellant disputed the monthly salary as well as the promotional chances of the deceased. In support of the claim, applicant no.1 examined herself and Shri Mahesh Vartak was examined in support of the monthly income of the deceased. Shri Bhaskar Gauda was the third witness examined. 3 fa-794-10 4. On the issue of contributory negligence, the tribunal noted that the motor car was driven by a learner and it was her negligence which resulted in the motor car giving a dash to the motorcycle from its rear side. The spot panchanama placed on record indicated that the offending car had taken a turn and driver’s husband was partly holding the steering of the car. The tribunal noted that all these circumstances, if considered collectively, went to show that the offending car had given dash to the motorcycle from behind and the driver was also prosecuted for rash and negligent driving. 5. On the point of age and income of the deceased, the evidence of Shri Mahesh Vartak, who had come with the service record of the deceased was recorded. The appointment order at Exh.22 was received by the deceased on 26/11/1987 and on 11/8/1990 he was confirmed in the post of Lab Assistant (Exh. 23). With effect from 1/1/1992 he was promoted to the post of Lab Technician. He was subsequently sponsored to complete his master’s degree in engineering as per letter at Exh.25. Consequently, on 22/9/1994 he was appointed as a Lecturer (Exh.26- appointment order). The monthly salary of the deceased for the month of January, 2006 was Rs. 18,897/-. The photostat copy of the service book and salary record of the 4 fa-794-10 deceased was placed on record at Exhs. 29 and 30 respectively. From the gross salary, there was a deduction of Rs.200/- for income tax and Rs.448/- towards professional tax. Barring these two deductions, totaling Rs.648/-, the tribunal did not consider the deductions of the LIC premium by relying upon the law laid down by the Supreme Court in the case of National Insurance Company Ltd. vs. Indira Srivastav and ors. [2008 ACJ 614]. 6. So far as the promotional chances of the deceased are concerned, the tribunal relied upon the law laid down by the Supreme Court in the case of Sarla Varma and ors. vs. Delhi Transport Corporation and anr. [(2009) 6 SCC 121]. Mr. Gatne the learned counsel for the appellant has challenged the issue of promotional avenues and he pointed out that the deceased was running tuition classes which was not permissible under the service Rules and on that count he was liable to be removed from service. In this regard, he has placed reliance on the cross – examination of Shri Mahesh Vartak. Mr. Gatne also submitted that there was no reliable record before the Claims Tribunal regarding the promotional chances of the deceased and that he was confirmed in service. 7. It is well settled by a catena of decisions of this court that the 5 fa-794-10 employees, including the teaching faculty of a private Polytechnic are covered under the MEPS Act and the Rules framed thereunder. The confirmation of service as well as the promotional avenues are covered by the MEPS Act as well MEPS Rules and, therefore, in our opinion, the tribunal did not fall in error in upholding the claim of the applicants that the deceased was due for promotion as per the Rules. The tribunal, therefore, relied upon the law laid down in Sarla Varma’s case and considered 50% more income over and above the actual salary which the deceased was drawing at the relevant time i.e. January, 2006. The tribunal considered the monthly income of the deceased at Rs.16,697/- and with 50% rise on account of promotional avenues, the monthly income came to Rs.25,047/- which has been rounded of to Rs.25000/- per month. The yearly income came to Rs.3 lac. The deceased has four dependents and, therefore, 1/4th of the annual income was deducted and thus leaving a net amount to Rs.2,25,000/- per annum. The multiplier of 15 has been held to be appropriate taking into consideration that the deceased was between the age group of 36 to 40 years. It has come in the evidence of Shri Mahesh Vartak that the deceased on born, as per the service record, on 8/10/1967 and, therefore, on the date of the accident he was less than 40 years of age. We do not find any error committed by the tribunal in calculating the 6 fa-794-10 yearly income and fixing the multiplier at 15 and thus the compensation calculated at Rs.33,75,000/- cannot be faulted with. Simple interest has been granted at the rate of 7.5% per annum which also cannot be faulted with. The claim of the insurer that deceased was liable for termination of service as he was running private tuition classes is not germane when it was not in dispute that he was in service on the date of accident. 8. In the premises, we do not find any ground to entertain this appeal at the behest of the Insurance Company and hence the same is dismissed in limine. (A. A. SAYED,J.) (B. H. MARLAPALLE, J.)