17. fa 828­11 wt ca 105­11.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 828 OF 2011 WITH CIVIL APPLICATION NO. 1690 OF 2009 WITH CIVIL APPLICATION NO. 105 OF 2011 The Oriental Insurance Co Ltd .. Appellant Vs Umaji @ Umakant Irappa Ghodkumbe & Ors .. Respondents Ms. Anita A. Agarwal for the Appellant Mr. Surel S. Shah for Respondent Nos. 1 to 4 CORAM : A.S. OKA, J. DATE : 8th JULY, 2011. ORAL JUDGMENT: 1. Heard learned counsel for the appellant and learned counsel appearing for respondent nos. 1 to 4. By consent, the Appeal is taken up for final hearing. 2. The first to fourth respondents are the claimants in a Claim Petition filed under Section 166 of the Motor Vehicle Act, 1988 (hereinafter referred to as the, "said Act". Compensation was claimed by the first to fourth respondent on account of death of the son of 1st and 2nd respondent. The respondent nos. 3 and 4 are the sisters of deceased by name Kapil. 1 17. fa 828­11 wt ca 105­11.doc 3. On 14th March 2007 when the said Kapil was driving an Indica car from Solapur to Pune, a tanker came from opposite direction and gave dash to the Indica car. As a result of the injury sustained in the accident, the deceased died on the spot. The appellant is the insurer of the tanker. The Tribunal held that the driver of the tanker was negligent. The Tribunal accepted the case that the income of the deceased Rs. 3000/- per month. After deducting 1/3rd of the income on account of personal expenditure, the tribunal applied multiplier of 17. Total compensation of Rs. 4,08,000/- was fixed. However, the Tribunal found that the deceased had contributed to the extent of 25%, hence, only 75% of the compensation was held payable by the owner and the insurer of the tanker. 4. The only issue in this Appeal is regarding the quantum of the compensation. The learned counsel for the appellant - insurer pointed out the evidence of one Milind Bhalekar claiming to be the employer of the deceased. She pointed out that according to the said witness, he along with other co-owners of the business were getting only a sum of Rs. 3000/- per month each as a net income. The learned counsel submitted that therefore, it is impossible to accept that the deceased was getting salary of Rs. 3000/- per month. The learned counsel for the appellant submitted that the multiplier ought to have been determined on the basis of respective ages of the first and second 2 17. fa 828­11 wt ca 105­11.doc respondents. The learned counsel relied upon the decision of the Apex Court in case of Shakti Devi Vs New India Insurance Co Ltd & Anr, JT 2010(12) SC 106. She submitted that as the deceased was a bachelor, 50% of deduction ought to have been made on account of personal expenditure. 5. The learned counsel appearing for respondent nos. 1 to 4 submitted that the witness Milind Bhalekar stated that income of Rs. 3000/- per month was his own net income and apart from him other nine owners of the business were getting net income of Rs. 3000/- per month and therefore, salary of Rs. 3000/- was correctly accepted by the Tribunal. He relied upon the decision of the Apex Court in case of P.S. Somanathan & Ors VS District Insurance Office & Anr, JT 2011 (2) SC 242. He submitted that the Apex Court had held that the multiplier will have to be determined not on the basis of respective ages of the parents but on the basis of the age of the deceased. He, therefore, submitted that no interference is called for. 6. I have considered the submissions of the learned counsel. The first issue will be regarding the income of the deceased. The evidence on record shows that the deceased was employed as a driver. Witness Milind Bhalekar stated that the deceased was his employee and the deceased was being paid salary of Rs. 3 17. fa 828­11 wt ca 105­11.doc 3000/- per month. He stated that the deceased was doing the work of driving as well as centering work. In the cross- examination, he stated that the business of centering work is of the joint family consisting of ten persons including himself. He stated that annual turnover of the business was Rs. Five Lacs and each member of the family is getting net income of Rs. 3000/- per month. The case made out by the said witness is that from the business of centering, ten members of the family were earning net income of Rs.3000/- each per month. Thus, net income received from the business was Rs. 30000/- per month after deducting all the expenses. In the circumstances, it is not possible to disbelieve the case that the deceased was drawing monthly salary of Rs. 3000/-. The accident is of the year 2006 and therefore, it is not unreasonable to take salary of a person working as a driver at Rs.3,000/- per month in a city like Solapur. 7. As far as the multiplier is concerned, law has been laid down by the Apex Court in the case Sarla Verma (Smt) & Ors Vs Delhi Transport Corporation & Anr., JT 2009 (6) SC 495. The Apex Court held that where the deceased was a bachelor and the claimants are the parents, 50% deduction will have to be made from the income on account of personal expenditure of the deceased and thus, for the purpose of calculation, the monthly income in the present case will have to be taken at Rs. 4 17. fa 828­11 wt ca 105­11.doc 1500/- per month. The Tribunal has committed an error to that extent by making deduction of only 1/3rd of the salary. As far as multiplier is concerned, the respective ages of the first and second respondents have been disclosed as 40 and 45 years respectively in the year 2007, so their average age is between 40 and 45. In the case of Shakti Devi (Supra), the issue arose as to whether the multiplier should be determined on the basis of the respective ages of the parents or on the basis of the age of the deceased. It will be relevant to note what is held by the Apex Court in paragraph 12 of the judgment. The Apex Court considered the case of Sarla Verma (Supra). The relevant portion of paragraph 12 reads thus: "In a case where the age of the claimant is higher than the age of the deceased, the age of claimant and not the age of the deceased has to be taken into account for the capitalization of the lost dependency. It is so because the choice of multiplier is determined by the age of the deceased or that of the claimant, whichever is higher." 8. In the case of P.S. Somanathan (Supra), in a similar situation, the Apex Court held that the multiplier should be fixed on the basis of the age of the deceased. Thus, there are two conflicting views of the co-ordinate benches of the Hon'ble Apex Court. In view of the law laid down by the Full Bench of this Court in Kamaleshwar Ishwardas Patel Vs. Union of India and others (1995(2) Bom CR 640), It is not necessary to follow the later view. The choice of multiplier has a direct nexus with 5 17. fa 828­11 wt ca 105­11.doc the dependency. If age of the deceased is 25 years and if he is survived by widow who is younger to him, then there will be justification for applying full multiplier of 18. If the deceased was unmarried and applicants are parents, there is no logic in applying multiplier 18. Hence, I am inclined to follow the view in the case of Shaktidevi (Supra). 9. Following the case of Sarla Verma (Supra), for the age group of 40 to 45, the multiplier 14 has been applied, hence, total compensation would be Rs. 2,52,000/- ( Rs. 1500/- X 12 X 14) by adding the usual amount, the compensation will be Rs. 2,62,000/-. 10.Hence, the appeal is partly allowed by passing the following order: i. The total compensation payable shall be Rs. 2,62,000/- instead of Rs.4,08,000/-. The rest of the award regarding apportionment, the interest and costs is not disturbed. ii. After determining the total amount payable to the first to fourth respondents in terms of modified award, the Tribunal will pass an appropriate order regarding disbursement / investment of the compensation amount. iii. The appeal is partly allowed on above terms. 6 17. fa 828­11 wt ca 105­11.doc iv. If any amount is deposited by the respondent in this Court, the same along with the interest accrued shall be transferred to the Tribunal and Tribunal shall pass the order regarding withdrawal/disbursement of the said amount. 11.As the main Appeal is disposed of, Civil Application Nos 1690 of 2009 and 105 of 2011 do not survive and the same are accordingly disposed of. [ A.S. OKA, J ] 7