ash 1 fa-816.01 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.816 OF 2001 1. Smt. Anita Sunil Kusalkar, ) 2. Miss Sonali Sunil Kusalkar, ) 3. Miss Nilam Sunil Kusalkar. ).. Appellants Vs 1. Arabsad Fatechand Shaikh (Owner), 2. The New India Assurance Company Ltd.. Respondents -- Shri Prabhakar Jadhav for the Appellants. Shri D.R. Mahadik for Shri S.R. Singh for Respondent No.2. -- CORAM ; A.S. OKA, J DATED : 7TH JULY, 2011 ORAL JUDGMENT : . The original claimants in a claim petition under Section 166 of the Motor Vehicles Act, 1988 ( hereinafter referred to as “the said Act”) have challenged the judgment and award passed by the Motor Accident Claims Tribunal by which the compensation has been granted of Rs.1,00,000/- with interest at the rate of 12% per annum from the date of filing of the application. By this Appeal, the Appellants are claiming enhancement by a sum of Rs.1,00,000/-. ash 2 fa-816.01 2. The name of the deceased is one Sunil Nagu Kusalkar who died in a motor accident on 26th July, 1991. The 1st Appellant is the widow of the deceased and the 2nd and 3rd Appellants are the children of the deceased. The submission of the learned counsel appearing for the Appellant is that while taking the income for the purposes of calculating the multiplicand, some amount ought to have been added on account of future prospects of increase in the earnings. He submitted that the Tribunal, after considering the fact that the age of the deceased was 25 years, has adopted the multiplier of 18. He submitted that just and proper compensation even exceeding the claim made in the claim application may be granted. Learned counsel appearing for the 2nd Respondent (insurer of the offending vehicle) submitted that there is no proof of age of the deceased and there is no proof of income of the deceased. He, therefore, submitted that no case for enhancement is made out. 3. I have perused the evidence. The 1st Appellant stepped into the witness box. Her evidence was recorded in October, 1997 when she disclosed her age as 26 years. The accident is of the year 1991. Hence, her age at the time of accident must be around 20 years. On the date of deposition, the respective ages of the 2nd and 3rd Appellants were 9 and 6 years as disclosed from the evidence of the 1st Appellant. In Paragraph 2 of the deposition, the Appellant stated that ash 3 fa-816.01 the age of the deceased was 25 years at the time of death. In the cross- examination, the said statement has not been challenged. Therefore, the age of the deceased can be safely taken as 25. The Appellants examined one Shri Shankar Kariappa Orse, who proved the salary certificate dated 3rd July, 1991. He stated that he was the Proprietor of S.K. Orse Company and that the deceased was serving for 4 years as Watchman. He stated that he was paying the salary of Rs.1,500/- per month to the deceased. He stated that the deceased was doing extra work and was earning extra salary of Rs.300/- to Rs.400/- per month. In the cross-examination, there is no specific suggestion given about the correctness of the salary at the rate of Rs.1,500/- per month. However, it is brought on record in the cross-examination that the salary certificate does not reflect extra payment of Rs.300/- to Rs.400/- per month. Thus, the Tribunal has rightly accepted the income of the deceased at the rate of Rs.1,500/- per month in the absence of evidence regarding extra payment. 4. Relying upon the decision in the case of Smt. Sarla Verma and other Vs Delhi Transport Corporation and Another [(2000)6 SCC 121], learned counsel appearing for the Appellant submitted that for the purpose of determining the multiplicand, addition should be made on account of future prospects of increase in the earnings. In the evidence of the employer of the deceased, he has not stated that the ash 4 fa-816.01 deceased was permanently employed. As held by the Apex Court in Paragraph 11 of the judgment in the case of Sarla Verma (supra), the addition can be made towards the future prospects of increase in the earnings where the deceased had a permanent job. Hence, for the purpose of calculating multiplicand, the salary will have to be taken at Rs.1,500/- per month. The deduction of 1/3rd will have to be made on account of personal expenditure of the deceased as rightly done by the Tribunal. In view of the decision in the case of Sarla Verma (supra), the multiplier of 18 will have to be applied. Thus, the compensation payable will be Rs.2,16,000/- ( 12,000/- x 18 ). In addition, some amount will have to be granted towards costs of consortium etc. 5. The claim made before the Tribunal and even before this Court is for the grant of total compensation of Rs.2,00,000/-. There is no application made either before the Tribunal or before this Court for seeking an amount exceeding Rs.2,00,000/-. Therefore, only on oral request made after the Appeal is called out for final hearing, a prayer for grant of compensation in excess of what is claimed for cannot be considered. 6. Thus, the Appellants will be entitled to enhancement by Rs. 1,00,000/- with interest thereon at the rate of 8% per annum. ash 5 fa-816.01 7. Hence, I pass the following order:- (a) In addition to the compensation granted under the impugned judgment and award, the Appellants will be entitled to compensation of Rs.1,00,000/- together with interest thereon at the rate of 8% per annum from the date of filing of the claim petition till realisation or deposit of the amount before the Tribunal. (b) The Respondents shall deposit the excess amount before the Tribunal within a period of three months from today. (c) The Appellant will be entitled to proportionate costs of this Appeal as well as the reference from the Respondents. (d) The Appeal is allowed on above terms. ( A.S. OKA, J )