1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 431 OF 2009 1. Smt. Saraswati Gajanan Gurav Age 33 years, Occu: Household Work 2. Smt. Sindhutai Vithal Gurav, Age 63 years, Household work. 3. Kumari Komal Gajanan Gurav, Age 13 years, Occu: Education 4. Kumar Hanumant Gajanan Gurav Age 10 years, Occu: Education. 5. Kumar Kiran Gajanan Gurav Age 10 years, Occ: Education. The Appellant Nos. 3 to 5 are minors. Hence through their natural guardian mother i.e. Appellant No.1). All the Appellants are residing at Post Tung, Tal. Miraj, Dist. Sangli. ... Appellants (Orig. Claimants. Vs. 1. Narayan Dnyanoba Gandhi Age Major, Occ: Busiiness, R/o. Malakapur, Tal. Shahuwadi, Dist. Kolhaur. 2. Natinal Insurance co. Ltd. Divisinal Office, 204, E ward, Cosmos Commercial Complex, Station Road, Kolhapur. Dist. Kolhaur. 3. Sou. Suvarna Haribhau Jadhav, 2 Age: Major, Occu: Owner. r/o. 1570/B, Mangalwar Peth Kolhaur, Dist.Kolhapur. 4. The Divisional Manager, The United India Insurance Co.Ltd. Station Road, Near Congress Bhavan, Kolhapur, Dist. Kolhapur. .. Respondents (org.OpplNos. 1 to 4). Mr. Sudhakar G. Thorat, Advocate, for the appellants. Mr.Sandesh Deshpande, Advocate, for the respondent No.2. Mr. H.G.Misar,Advocate fr the respndent No.4. CORAM: J.H.BHATIA,J. DATE : 24th September, 2009. JUDGMENT 1. With consent of the learned Counsel for the parties, the Appeal is taken up immediately for final hearing and disposed of. 2. The Appeal is filed by the original claimants assailing the quantum of compensation awarded by the Motor Accident Claims Tribunal. 3. To state in brief, deceased Gajanan, aged about 28 years, was travelling by Jeep bearing No. MH 10 C 2876 from Kolhapur to Jaysingpur. The Jeep was owned by respondent No.3 and insured with respondent No.4. The jeep 3 was running in a high speed and near Chipri Fata, accident took place between the said jeep and the truck bearing No. MH 08 8809 owned by respondent No.1 and insured with respondent No.2. In the said accident, Gajanan suffered fatal injuries and died in the hospital. The claimant/appellant No.1 is widow, appellant No.2 is mother and Nos. 3 to 5 are children of deceased Gajanan. It is contended that he was aged 29 years at the time of accident. He was working as a welder with one Supekar earning Rs.6,000/- per month. They claimed amount of Rs.4 lakh as compensation. 4. Respondent Nos. 1 and 2 contested the claim mainly on the ground that there was no fault in driving the truck and accident had taken place only because of the negligence on the part of the Jeep driver. They also contended that the claim is excessive and exhorbitant. 5. Respondent No.3 Jeep owner did not appear and the matter proceeded exparte. Respondent No.4 Insurance Company filed the Written Statement, exhibit 38. It was contended that the Jeep was not insured and alternatively, it was contended that the deceased was a fare paying passenger in the Jeep and it was a breach of the Policy and that the Insurance Company is not liable to pay any compensation. The respondent no.4 also contended that the 4 claim is highly exhorbitant. 6. After hearing evidence by the parties, the Tribunal found that the drivers of both the vehicles were at fault. However, the contribution of the Jeep driver was found to be 80% while that of the truck driver at 20%. The Tribunal held that the annual income of the deceased was Rs.24,000/- per annum and accordingly the compensation was fixed applying the multiplier of 16. The Tribunal also granted amount of Rs.4,000/- towards compensation for loss of consortium to the appellant No.1, Rs.5,000/- for loss of estate and Rs.5,000/- for funeral expenses. Accordingly, the compensation of Rs.2,70,000/- was awarded inclusive of amount of Rs.50,000/- paid as compensation on the principle of no fault liability by respondent No.2. Respondent Nos. 1 and 2 were required to deposit further amount of Rs.4,000/- while the balance amount of Rs.2,16,000/- was directed to be paid by respondent nos. 3 and 4 jointly and severally with interest at the rate of 9% per annum. 7. While the claimants have assailed the judgment and award onthe ground that compensation has not been properly assessed, no appeal or cross- objections have been filed by any of the respondents. Following point arises for my determination:- 5 “Whether the compensation awarded by the Claims Tribunal is just and reasonable ? 8. The impugned judgement reveals that on behalf of the claimants, appellant No.1 was examined as P.W.1 and one Supekar as PW-2. According to PW-1 Saraswati, the deceased was earning Rs.6,000/- per month while he was working as welder. As per the evidence of P.W.2 Supekar, the employer, Gajanan was getting Rs.100/- per day. In view of this, he was earning Rs.2700/- to Rs. 2800/- per month. The Tribunal noted that the deceased had completed ITI Certificate Course and as such he was skilled worker. Therefore, it was not difficult for him to earn Rs.3,000/- per month. Having come to conclusion that income was about Rs.3,000/- per month, the Claims Tribunal assessed the annual income at Rs.24,000/- per annum relying on a Judgment in Uttaranchal Transport Corporation vs. Sangatgaur and another III (2007) AC 245 (D.B.). That Judgment was based on the notional income of the deceased. In fact, when there is a specific evidence about the qualification, nature of work and the income of the deceased, there was no need to look for the notional income which would be necessary in case the person was not found employed or when there was no evidence about his income. Once it was held that income was or could be Rs.3,000/- per month, there was no difficulty in holding that the annual income 6 was Rs.36,000/- per annum. The learned Counsel for the Insurance Company contended that for want of documentary evidence, deposition of P.W.2 Supekar was not reliable. In my opinion, there was no reason to disbelieve him because the deceased Gajanan was a skilled worker having ITI Diploma. In fact there were good prospects of increase in income with more experience. Therefore, his income cold be taken at Rs.2,000/- p.m. The Claims Tribunal held 1/3rd amount should be deducted towards the personal expenses. It was quite reasonable. Taking into consideration the annual income of Rs.36,000/- after deduction of 1/3rd towards his own expenses, the loss of dependency wold be rs.24,000/- per annum. Taking into consideration his age which was 28 years as per the School Leaving Certificate, the Claims Tribunal applied the multiplier of 16 which appears to be quite reasonable. In view of this, the total loss of income comes to Rs.3,84,000/-. An amount of Rs.5,000/- was awarded as funeral expenses which is also justified. The Tribunal awarded Rs.4,000/- to the claimant no.1 for loss of consortium. No compensation was given for loss of love and affection for the children. Even the amount of Rs.4,000/- awarded to the wife was utterly insufficient and inadequate. In my considered opinion, compensation of Rs. 15,000/- should have been awarded towards loss of consortium and equal amount to the children for loss of love and affection. The total of this comes to Rs. 4,19,000/-. The claim made by the claimants was Rs.4 lakh. Therefore, the 7 compensation could be restricted to the claim amount of Rs.4 lakh. The compensation amount of Rs.2,70,000/- awarded by the Tribunal was not just and reasonable. Therefore, the Appeal deserves to be allowed. 9. For the aforesaid reasons, the Appeal is allowed. The award stands modified as follows :- (i) The appellants/claimants shall be entitled to get an amount of Rs.4 lakh as compensation inclusive of the amount of Rs.50,000/- already paid towards no fault liability. The amount shall carry interest at the rate of 9% per annum from the date of the Application till realisation of the amount. (ii) Out of the total compensation amount, the respondent Nos.1 and 2 shall jointly and severally pay 20% and balance amount of 80% shall be paid by respondent Nos. 3 and 4 jointly and severally. (iii) After the compensation amount is deposited, amount of Rs. 60,000/- each shall be invested in fixed deposits in the name of the claimants Nos. 3, 4 and 5, being the minors with some Nationalized 8 Bank and the amount shall not be withdrawn till they attain majority. However, their mother and natural guardian, claimant no.1 – Saraswati shall be entitled to receive interest thereon quarterly. The amount of Rs.60,000/- shall be paid to the applicant – mother of the deceased by Account Payee cheque and the balance amount shall be paid to the applicant no.1 Saraswati by Account Payee cheque. The amount shall be deposited by the Insurance Companies before the Tribunal within six weeks from this day. The parties shall bear their own costs. (J.H.BHATIA,J.)