1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.49 OF 1996 United India Insurance Company Limited, Aurangabad Branch ...Appellant vs. 1 Smt.Sharada Dattatraya Patil 2 Kum.Rupali Dattatraya Patil 3 Kum.Dhanashree Dattatraya Patil 4 Shrinivas Dattatraya Patil 5 Sanjay Sunderrao Solanke 6 Yogesh Anant Avachat ...Respondents Mr.J.T.Kotian for the appellant Mr.Bhushan Walimbe for the respondent nos.1 to 4 CORAM :A.S.OKA,J. DATE : MARCH 2, 2010 JUDGMENT : 1 Heard the learned counsel for the parties. The appellant is the insurer and the 1 st to 4 th respondents are the claimants in the claim petition under section 166 of the Motor Vehicle Act,1988 (hereinafter referred to as the said Act). The claim was made on account of demise of one Dattatraya in a motor accident on 1 st July 1991. It is not in dispute that the offending vehicle was insured with the appellant on the date of accident. The tribunal found that the accident occurred due to rash and negligent driving on the part of the driver of the vehicle insured with the appellant. The tribunal granted compensation of Rs.4,00,300/- together with interest thereon at the rate of 9% per annum from the date of filing claim petition till realisation. 2 The learned counsel for the appellant submitted that the compensation awarded is excessive. He submitted that the salary of the deceased was Rs.2900/- per month and 2 therefore, the dependency taken at the rate of Rs.2500/- per month is on the higher side. He submitted that no deduction has been made on account of personal expenses of the deceased. He submitted that considering the fact that the age of the deceased was 46 years, the multiplier of 12 applied by the tribunal is on the higher side. He, therefore, submitted that the compensation granted is excessive. The learned counsel for the 1 st to 4 th respondents supported the impugned Judgment and Award. 3 I have carefully considered the submissions. It is an admitted position that the appellant-insurer had not taken a defence which is governed by section 149 (2) of the said Act. Perusal of the Roznama of the claim petition shows that there was no application made under section 170 of the said Act for grant of leave. There is nothing on record to show that a leave under section 170 of the said Act had been granted in favour of the appellant. Therefore,in view of the decision of the Apex Court in the case of National Insurance Company Ltd. Vs. Nicolletta Rohtagi [(2002) 7 S.C.C.page 456], the present appeal under section 173 of the said Act is not maintainable and the same is liable to be dismissed only on that ground. 4 Nevertheless, I have considered the submissions made by the learned counsel for the appellant on the issue of quantum. For testing the submissions, powers will have to be exercised under Rule 33 of Order XLI of the Code of Civil Procedure, 1908 by applying the correct principles. The case made out by the 1 st respondent was that the salary payable to the deceased was Rs.2948/- per month and in addition to that he used to get traveling allowance and overtime. Witness no.2 examined by the 3 claimant who was a Clerk with the Maharashtra State Electricity Board where the deceased was employed stated that apart from the salary, the deceased was entitled to overtime and traveling allowance. There is no dispute that the age of the deceased was 46 years. 5 It is established that the deceased was in permanent employment of Maharashtra State Electricity Board. Even if the salary of the deceased is taken at Rs.2948/- per month, in view of what is held by the Apex Court in paragraph 34 of the decision in the case of Sarla Verma (2009 6 SCC page 121), addition of 30% of the salary will have to be made on account of prospects of future earnings in the income. As number of Dependants on the deceased were four, in view of what is held in paragraph 30 of the decision of the Apex Court in the case of Sarla Verma (supra), ¼ amount will have to be deducted on account of personal expenditure of the deceased. Adding 30% to the salary of Rs.2948/-, the amount comes to Rs.3770/-. Deducting a sum of Rs.942/- being the 1/4 of the said amount, monthly dependency will come to Rs.2828/- and yearly dependency will come to Rs. 33,936/-. In view of decision of the Apex Court, in the case of Sarla Verma (supra), multiplier of 13 will have to be applied. After multiplier is applied, compensation amount exceeds a sum of to Rs.4,00,000/-. Hence, the compensation awarded by the tribunal is reasonable and no interference is called for. 6 Hence, I pass the following order : Appeal is accordingly dismissed. The appellant will pay costs of this Appeal to the respondent nos.1 to 4. The amount deposited by the appellant in this Court along with interest, if any, accrued thereon shall be 4 transferred to the concerned tribunal. The concerned tribunal will pass an appropriate order regarding disbursement/withdrawal of the said amount after hearing the parties. JUDGE