Bombay High Court High Court

The Asstt. Engineer vs Shri Dattatraya Ganpat Kenge on 8 May, 2009

Bombay High Court
The Asstt. Engineer vs Shri Dattatraya Ganpat Kenge on 8 May, 2009
Bench: K. K. Tated
                                 (1)




            FIRST APPEAL NO.109 OF 1995
                    WITH




                                                                    
            CROSS OBJECTION ST. NO.6197 OF 1996




                                           
                  Date of decision:    8TH MAY, 2009

    For approval and signature.




                                          
    THE HONOURABLE SHRI JUSTICE K.K. TATED


    1.    Whether Reporters of Local Papers               }     Yes
          may be allowed to see the Judgment?             }




                                  
    2.     To be referred to the Reporter or not          }     Yes/No

    3.
                      
          Whether Their Lordships wish to see
          the fair copy of the Judgment?
                                                          }
                                                          }
                                                                No
                     
    4.    Whether this case involves a substantial        }
          question of law as to the interpretation        }     No
          of the Constitution of India, 1950 or           }
          any Order made thereunder?                      }

    5.    Whether it is to be circulated to the           }     No
      


          Civil Judges?                                   }
   



    6.    Whether the case involves an important          }
          question of law and whether a copy of           }     No
          the Judgment should be sent to Mumbai,          }
          Nagpur and Panaji offices?                      }





         [A.S. Bhagwat)
         Personal Assistant to
         the Honourable Judge.





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                                 1




        IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                   
                   BENCH AT AURANGABAD.




                                           
         FIRST APPEAL NO.109 OF 1995


    1) The Asstt. Engineer, Cl. II,




                                          
       Kukadi Left Canal, Sub-Divn. No.17,
       Paragaon, Sudrik, Tq-Shrigonda,
       Dist-Ahmednagar.

    2) The Government of Maharashtra,
       Irrigation Dept., Secretariate,




                                   
       Bombay.
                                .... APPELLANTS.

        VERSUS
                   
                  
    1) Shri Dattatraya Ganpat Kenge,
       Age-50 years, Occu:Nil,

    2) Smt. Renuka Dattatraya Kenge,
       Age-46 years, Occu:Household,
      


    Both R/o- Renuka Niwas, Bagde Mala,
   



    Balikashram Road, Ahmednagar.

    3) Vasant Sitaram Pawar,
       Age-30 years, Occu:Driver,
       R/o-Ahmedabad, Tq-Shirur,





       Dist-Pune,
       At present R/o- Pargaon Sudrik,
       Kukadi Project Colony,
       Tq-Shrigonda, Dist-Ahmednagar.

    4) Mr. Joseph M. D'Souza,
       386, Rasta Peth,





       Pune-411 011.

    5) The New India Assurance Co. Ltd.,
       Registered and Head Office at
       New India Assurance Building,
       87, M.G. Road, Fort, Bombay.




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                               2




                                  ....   RESPONDENTS.

                      ...




                                                                   
    Mr.M.L. Dharashive, A.G.P. for the Appellant.
    Mr.P.S. Shendurnikar Advocate holding for Mr.




                                           
    R.T. Sharma Advocate for Respondent Nos. 1 & 2.
    None present for Respondent Nos. 3 and 5.
    Appeal is dismissed against Respondent No.4 as
    per Registrar's Order dated 8/4/2008.
                      ...




                                          
         WITH

         CROSS OBJECTION ST. NO.6197 OF 1996




                                 
                    IN
         FIRST APPEAL NO.109 OF 1995
                   
    1) The Asstt. Engineer, Cl. II,
       Kukadi Left Canal, Sub-Divn. No.17,
                  
       Paragaon Sudrik, Tq-Shrigonda,
       Dist-Ahmednagar.

    2) The Government of Maharashtra,
       Irrigation Dept., Secretariate,
       Bombay.
      


                                .... APPELLANTS.
   



          VERSUS



    1) Shri Dattatraya Ganpat Kenge,





       Age-50 years, Occu:Nil,

    2) Smt. Renuka Dattatraya Kenge,
       Age-46 years, Occu:Household,

    Both R/o- Renuka Niwas, Bagde Mala,
    Balikashram Road, Ahmednagar.





    3) Vasant Sitaram Pawar,
       Age-30 years, Occu:Driver,
       R/o-Ahmedabad, Tq-Shirur,
       Dist-Pune,
       At present R/o- Pargaon Sudrik,




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                                            3



          Kukadi Project Colony,
          Tq-Shrigonda, Dist-Ahmednagar.

    4) Mr. Joseph M. D'Souza,




                                                                                  
       386, Rasta Peth,
       Pune-411 011.




                                                          
    5) The New India Assurance Co. Ltd.,
       Registered and Head Office at
       New India Assurance Building,
       87, M.G. Road, Fort, Bombay.




                                                         
                                               ....   RESPONDENTS.

                              ...

    Mr.P.S. Shendurnikar Advocate holding for Mr.
    R.T. Sharma Advocate for Cross Objection




                                              
    Petitioners, i.e. Respondent Nos. 1 and 2.
    Mr.M.L. Dharashive for Government of Maharashtra.
                      ...
                         
                        
            CORAM:   K.K. TATED, J.

          JUDGMENT RESERVED   ON               : 29TH APRIL, 2009.
          JUDGMENT PRONOUNCED ON               : 8TH MAY, 2009.
      


    JUDGMENT:

1. Heard Mr. Dharashive, learned A.G.P. for

the Appellant and Mr. Shendurnikar, learned

counsel for Respondent Nos. 1 and 2.

2. Present First Appeal filed by original

Respondent Nos. 2 and 3 against the Judgment and

award dated 27th January, 1994 passed by Member,

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Motor Accident Claims Tribunal, Ahmednagar in

Motor Accident Claim Application No.240 of 1990.

The original claimants also preferred Cross

Objection Stamp No.6197 of 1996 for enhancement of

compensation.

3. In the present case the accident took place

on 5th January, 1989 in which one Rajendra Kenge

died. Respondent No.1 and 2 filed Motor Accident

Claim Application No.240 of 1990 claiming

compensation

Section 110-A
to
ig the tune of Rs.3,50,000/-

                             of the Motor Vehicles            Act,
                                                                        under

                                                                        1939.
                        
    The     trial Court awarded a sum of Rs.1,03,900/- to

    the     original claimants with interest at the                       rate

of 12% per annum from the date of Application i.e.

10th July, 1989 till realisation of the amount.

4. Learned A.G.P. submitted that the trial

Court erred in coming to the conclusion that the

original claimants are entitled compensation in

respect of death of Rajendra Kenge to the tune of

Rs.1,03,900/- along with interest. Learned A.G.P.

submitted that the trial Court erred in coming to

the conclusion that for calculating the

compensation, the multiplier should be 15 years.

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He further submitted that the trial Court has not

considered the evidence on record and awarded

excess compensation to the claimants.

5. On the other hand, learned counsel

appearing on behalf of Respondent Nos. 1 and 2/

original claimants submitted that the trial Court

ought to have awarded a sum of Rs.3,50,000/- to

the claimants. Learned counsel for Respondents/

original claimants further submitted that the

trial Court erred in coming to the conclusion that

the deceased used to contribute only 1/3 income of

his net salary for house expenses. He further

submitted that the trial Court ought to have held

that at the time of calculating the compensation,

the multiplier should be 17 years. He further

submitted that the trial Court has not considered

the future prospects of the deceased at the time

of calculating the compensation. On the basis of

these submissions, learned counsel for Respondents

submitted that the Cross Objection preferred by

them should be allowed in toto.

6. On the basis of the submissions of learned

counsel for the parties, the points arises for

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consideration, are as under:

i) Whether the trial Court should have

taken into consideration 2/3 income of the

deceased as contribution towards the

family?

ii) Whether the trial Court should have

adopted 17 years multiplier at the time of

calculating the compensation?

iii) Whether the trial Court ought to

have taken into consideration future

prospects of the deceased at the time of

calculating the compensation?

iv) Whether the compensation awarded by

the trial Court is according to law?

7. With the assistance of learned counsel for

both the parties, I have gone through the Record

and Proceedings of the present case. The accident

took place on 5th January, 1989 in which Rajendra

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Kenge expired. It is the case of the Respondents/

original claimants that the deceased was Civil

Engineer and was working with Irrigation

Department. He was earning a sum of Rs.1856/- per

month. On the date of accident, his age was 27

years. He used to contribute more than Rs.1200/-

per month towards house expenses. In support of

his contention, learned counsel for the

Respondents, relied on salary certificate issued

by Irrigation Department, Pune dated 16th

February,

that the
1989

deceased

at Exhibit 36.

                                       was    getting
                                                        Exhibit 36

                                                            net     salary
                                                                             shows

                                                                                   of
                              
    Rs.1694/-.            Even the PW1 Dattatraya Ganpat Kenge,

father of deceased in his evidence stated that his

son was drawing a salary of Rs.1856/- per month.

He further stated in his evidence that out of his

salary, the deceased used to pay Rs.900/- to

Rs.1000/- to them for their expenses. Considering

these facts, the trial Court held that the

deceased used to contribute 1/3 of his salary i.e.

Rs.600/- to his family. Learned counsel for the

Respondents vehemently argued that the trial Court

erred in coming to the conclusion that the

deceased used to contribute only 1/3 of his gross

salary i.e. Rs.600/- per month to his family. He

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submitted that in several cases the Apex Court as

well as High Court held that usually 2/3 amount to

be considered for fixing the compensation. In

support of his contention learned counsel for

Respondents relied on the Judgment reported in

1995 (4) B.C.R. Page 421, Smt. Mandabai wd/o.

Milind Sontakke and another vs. P. Rajendra

Prasad and another. He specifically relied on

para 23 of the Judgment, which reads as under:

“23.

It may be seen that the loss of
dependency is measured by the loss of the
amount of pecuniary benefit that the

dependants could reasonably expect to have
received from the deceased in future. In
the ordinary case of the death of a wage
earner that figure is arrived at by
deducting from the wages the estimated
amount of his own personal and living

expenses. It is necessary to see that in
the absence of any evidence in that regard

the amount of personal and living expenses
of the deceased is conventionally
determined by apportioning equal shares
between him and his dependents. Thus where
there are three family members, 1/3rd of

his wages is estimated as his own personal
and living expenses. However, in the
instant case the learned Claims Tribunal
has first excluded the honorarium of Rs.300
per month which the deceased Milind was
getting from his Union, from his income on
the ground that he was spending his time

and energy in the Union work. It has
thereafter excluded his share in his salary
by taking his family as consisting of 2-1/2
units. In our view, the above approach of
the learned Claims Tribunal is clearly
erroneous. In considering the question of

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loss of benefit to the family of the
dependents what has to be excluded is the
personal and living expenses of the
deceased. As such there is no reason to

exclude the amount of Rs.300 per month
which the deceased Milind was getting as
honorarium from his Union. If he was

spending his time and energy in the Union
work, what needed to be excluded is the
expenditure which he incurred i.e. his
personal and living expenses for doing the
union work. In fact the learned claims

Tribunal ought to have taken the total
income of the deceased Milind from salary
and the said honorarium at Rs.1000 and then
deducted from the said income the personal
and living expenses of deceased Milind in
discharging his own duties in the factory

as well as in doing the union work and
calculated rest of the income as loss of

benefit to his family.”

8. Learned counsel for the Respondents further

relied on the Judgment reported in 2006 (4) Mh.

L.J. Page 161, Kantabai w/o Sureshchandra Doshi

and others vs. Ahmed Khan Chand Khan (deceased)

by his LRs. Muktyarbi w/o Ahmed Khan and

others.68 In this case learned Single Judge of

this Court held that 1/3 amount to be deducted

towards personal expenses of deceased. Para 7 of

the Judgment is relevant here, which reads as

under:

“7. In MACP No.221 of 1991, it seems
that deceased Sureshchand Doshi is survived
by two daughters and two sons and applicant
no.1 widow as well. The learned tribunal

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has justifiably referred to the dependency
of the parents in appeal no. 312 of 2000.

The income of the deceased Sureshchandra
Doshi, as an advocate and from the

agriculture land, is considered to be
Rs.36000 per annum. It comes to Rs.3000
per month. In the absence of any proof of

his income, the learned tribunal has
justifiably arrived at conclusion with
little guess work. The learned Tribunal
however, while working out the amount of
compensation, on account of death of

Sureshchandra Doshi, applied the multiplier
of 12. It is pertinent to note that there
is no age proof placed on record by the
Appellants, except the oral evidence.
However, the learned Judge seems to have
chosen multiplier as 12 without any

explanation. While applying the
multiplier, the tribunal/ Court has to

arrive at a conclusion, regarding the age
of deceased person, on the basis
evidence and/ or the facts circumstances,
of

and other material on record. On the basis

of material on record, in the present case,
in my opinion, it is difficult to record
any finding regarding the specific age of
deceased Sureshchandra Doshi. However, it
can be considered that deceased
Sureschandra Doshi must be above 40 years

of age and below 45 years, on the date of
the accident. To choose the multiplier,

reference, can be made to IInd Scheddule of
Section 163 A of the Motor Vehicles Act,
1988, by way of guideline. In that case,
help of IInd Schedule referred to under
Section 163 A, can be taken for working out

compensation as well. The learned counsel
Mr. Patni has relied on Judgment of the
Apex Court in the matter of United
Insurance Company Ltd. and others vs.
Patricia Jean Mahajan and others (2002) 6
S.C.C. 281. The Apex Court in the matter
of United India Insurance (supra) held that

“12. It thus makes it clear that
it is for the tribunal to arrive at
an amount of compensation, which it

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may consider to the just in the
facts and circumstances of the
case. This Court however, has been
of the view that structured formula

as provided under the second
Schedule would be a safe guide to
calculate the amount of just

compensation. Deviation though
permissible, may only be resorted
to for some special reasons to do
so. So far as structured formula
is concerned, it provides for a

maximum multiplier of 18. The
application of the multiplier
depends upon the age of the
deceased etc. Again we find that
the structured formula relates to a
victim whose income is upto

Rs.40,000 per annum. It may be
clarified that in the accepted and

prevalent method, would
applicable and has been applied.

            The question of       setting
                                                  be

                                               apart

1/3rrd of the income on account of

expenditure on self by the deceased
is also not in dispute i.e. to say
that the amount of multiplicand
shall be 2/3rds of the annual
income of the deceased. The annual
income of the deceased, as found by

the learned Single Judge and the
Division Bench, namely, 3,39,445

dollars is also not in dispute, nor
the amount of dependency , 2,26,297
U.S. dollars. The only dispute is
about application of 13 as
multiplier as applied by a Division

Bench of the High Court following
the second Schedule to the Act.”

In this view of the matter, in my view,
multiplier of 15 for the age group in
between 40 to 45, as mentioned in Schedule
II of Section 163 A of the Motor Vehicles

Act can safely be accepted. Thus, the
amount of compensation with multiplier of
15 would be as follows, after deducting 1/3
for personal expenses:-

2400- X 15 = 3,60,000/-

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The learned tribunal has awarded an amount
of Rs.2,88,000/- towards loss of
dependency, thus the claimants are entitled

for enhancement of amount of Rs.72,000/-
for non pecuniary head of the compensation.
The learned tribunal, has awarded an amount

of Rs.12,000/- towards loss of consortium
and life and affection, justifiably. In
other words, appellants are entitled to
seek enhancement of compensation to the
tune of Rs.3,72,000/- in it’s totality in

this appeal, filed for enhancement in the
amount of compensation.”

9. Learned counsel for the Respondents relied

on the Judgment reported in AIR 2008 S.C. Page

1221,

A.P.S.R.T.C. and another vs. M. Ramadevi

and others. In this case the Apex Court held that

after deducting 1/3 amount, remaining amount to be

considered for determining the compensation. Head

Note B of the Judgment reads as under:

“B. Motor Vehicles Act (59 of 1988)
S.168- Accident – Claim for compensation –
deceased, bus driver, was 40 years of age –

monthly income taken at Rs.3000/-, after
deducting 1/3 therefrom, annual
contribution is fixed at Rs.24000/- –
multiplier of 10 adopted – amount of
Rs.20,000/- fixed for pecuniary damages and
consortium – claimants thus, would be
entitled to Rs.2,60,000/- – interest rate

of 9% fixed by High Court, not interfered
with.”

10. Thus, it is to be noted that in all these

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Authorities, the Apex Court as well as High Court

held that, at the time of calculating

compensation, only 1/3 amount to be deducted for

net contribution of the deceased towards his

family. Considering the Authorities referred

above, I hold that trial Court erred in coming to

the conclusion that the deceased used to

contribute only 1/3 of his salary to his family.


    It     is     admitted           position         that    as        per     salary




                                                  
    certificate          Exhibit          36,     deceased         used       to     get



    the     G.P.F.
                               

Rs.1856/- per month gross salary.

and other deductions, he used to
After deducting

get

net amount of Rs.1694/-. Therefore, 2/3 of

Rs.1694/- comes to Rs.1130/-. The trial Court

ought to have considered the sum of Rs.1130/- as

contribution of the deceased for the maintenance

of his family. Considering the above mentioned

Authorities, I hold that for calculating the

compensation payable to the Respondents/ original

claimants, a sum of Rs.1130/- to be taken as

contribution of the deceased towards his family.

Accordingly the Point No.1 is decided.

11. Learned counsel appearing for the

Respondents/ original claimants submitted that the

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trial Court ought to have held that for

calculating compensation, multiplier should be 17

years in the present case. He submitted that on

the date of accident, the deceased was 27 years

old. Considering the age of the deceased and age

of his family members, the trial Court should have

held that proper multiplier in the present case is

17 years. He further submitted that the trial

Court on the basis of Judgment of the Apex Court

in the matter of General Manager, Kerala State

Road Transport

Corporation vs.

Thomas decided on 6th January, 1993, wherein it is
Smt. Susamma

held that the maximum multiplier to be adopted is

of 16 years. On the basis of the said decision of

the Apex Court, the trial Court held that proper

multiplier would be 15 years in the present case.

Learned counsel for Respondents relied on the Apex

Court Judgment reported in (1996) 4 Supreme Court

Cases, 362, U.P. State Road Transport Corporation

and others vs. Trilok Chandra and others. In

this case the Apex Court held that the multiplier

varies from 5 to 18 depending upon the age group

to which the victim belongs. Para 17 of the

Judgment reads as under:

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“17. The situation has now undergone a
change with the enactment of the Motor
Vehicles Act, 1988 as amended by Amendment

Act 54 of 1994. The most important change
introduced by the Amendment insofar as it
relates to determination of compensation is

the insertion of Sections 163 A and 163
in Chapter XI entitled “Insurance of Motor
Vehicles against Third Party Risks”.
Section 165 A begins with a non obstanted
clause and provides for payment of

compensation, as indicated in the second
Schedule, to the legal representatives of
the deceased, as the case may be. Now if
we turn to the second Schedule, we find a
table fixing the mode of calculation of
compensation for third party accident

injury claims arising out of fatal
accident. The first column gives the age

group of the victims of the accident. The
second column indicates the multiplier and
the subsequent horizontal figures indicates
the quantum of compensation in thousand

payable to the heirs of the deceased
victim. According to the table the
multiplier varies from 5 to 18 depending on
the age group to which the victim belonged.
Thus, under this Schedule, the maximum
multiplier can be up to 18 and not 16 as

was held in Susamma Thomas case.”

12. On the basis of this Authority, the learned

counsel for the Respondents submitted that the

trial Court ought to have held the multiplier of

17 years for calculating the compensation payable

to the Respondents/ original claimants.

13. On the other hand, learned A.G.P.

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appearing on behalf of the Appellants submitted

that the trial Court correctly held that in the

present case the multiplier should be 15 years

only. Learned counsel pointed out that Authority

cited by the learned counsel for Respondents

reported in (1996) 3 Supreme Court Cases, 179,

Sarla Dixit (Smt) and another vs. Balwant Yadav

and others, is useful in the present case.

Learned A.G.P. submitted that the Apex Court in

the matter of Sarla Dixit (supra) held that for 27

years deceased, 15 is proper multiplier.

Court in this Authority held that:

The Apex

“. As the age of the deceased was 27
years and a few months at the time of his
death, the proper multiplier in the light

of the aforesaid decision of this Court in
the case of G.M. Kerala vs. S.R.T.C.

would be 15.”

14. In view of these observations of the Apex

Court, learned A.G.P. submitted that the trial

Court rightly held that in the present case,

multiplier should be 15 years. Considering the

submissions made by learned counsel for the

Respondents as well as learned A.G.P. and

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considering the Apex Court Authority in the matter

of Sarla Dixit (supra), I do not find any reason

to interfere the finding of the trial Court about

multiplier. Accordingly, Point No.2 for

consideration is decided.





                                                               
    15.       Learned           counsel for Respondents                   submitted

    that     the     trial Court at the time of                      calculating

    the     compensation,            has not considered the                   future




                                               
    prospects        of        the     deceased Rajendra             Kenge.          He

    submitted        that
                               
                                 the deceased was Engineer and

was working with Irrigation Department of State of
he

Maharashtra for more than 6 to 8 years. He

further submitted that considering the service

record of deceased, the trial Court ought to have

considered the future prospects of the deceased

for determining the amount of compensation. He

submitted that the Apex Court in the Judgment

reported in (1996) 3 Supreme Court Cases, 179,

Sarla Dixit (Smt) and another vs. Balwant Yadav

and others, held that future prospects of

advancement in life and career should also sounded

in terms of money at the time of fixing the

compensation. He relied on Para 7 of the

Judgment, which reads as under:

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“7. So far as the adoption of the

proper multiplier is concerned, it was
observed that the future prospects of
advancement in life and career should also

be sounded in terms of money to augment the
multiplicand. While chance of the
multiplier is determined by two factors,
namely, the rate of interest appropriate to
stable economy and the age of the deceased

or of the claimant whichever is higher, the
ascertainment of the multiplicand is a more
difficult exercise. Indeed, many factors
have to be put into the scales to evaluate
the contingencies of the future. All
contingencies of the future need not

necessarily be baneful. Applying these
principles to the facts of the case before

this Court in the aforesaid case it was
observed that the deceased in that case was
of 39 years of age. His income was Rs.1032
per month. He was more or less on a stable

job and considering the prospects of
advancement in future career the proper
higher estimate of monthly income of
Rs.2000 as a gross income to be taken as
average future gross future income of the
deceased and deducting at least 1/3

therefrom by way of personal expenses, had
he survived the loss of dependency, could

be capitalized by adopting the multiplicand
of Rs.1400 per month or Rs.17000 per year
and that figure could be capitalized by
adopting multiplier of 12 which was
appropriate to the age of the deceased

being 39 and to that amount was added the
conventional figure of Rs.15000 by way of
loss of consortium and loss of estate.
Adopting the same scientific yard stick as
laid down in the aforesaid Judgment, the
computation of compensation in the present
case can almost be subjected to a well

settled mathematical formula. Deceased in
the present case, as seen above, was
earning gross salary of Rs.1543 per month.
Rounding it up to figure of Rs.1500 and
keeping in view all the future prospects
which the deceased had in stable military

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19

service in the light of his brilliant
academic record and performance in the
military service spread over 7 years, and
also keeping in view the other

imponderables like accidental death while
discharging military duties and hazards of
military service, it will not be

unreasonable to predicate that his gross
monthly income would have shot up to at
least double than what he was earning at
the time of his death, i.e., up to Rs.3000
per month had he survived in life and had

successfully completed his future military
career till the time of superannuation.
The average gross future monthly income
could be arrived at by adding the actual
gross income at the time of death, namely
Rs.1500 per month to the maximum which he

would have otherwise got had he not died a
premature death, i.e. , Rs.3000 per month

and dividing that figure by two. Thus, the
average gross monthly income spread over
his entire future career, had it been
available, would work out to Rs.4500

divided by 2, i.e., Rs.2200. Rs.2000 per
month would have been the gross monthly
average income available to the family of
the deceased had he survived as a bread
winner. From that gross monthly income at
least 1/3 will have to be deducted by way

of his personal expenses and other
liabilities like payment of income tax etc.

That would roughly work out to Rs.730/- per
month but even taking a higher figure of
Rs.750 per month and deducting the same by
way of average personal expenses of the
deceased from the average gross earning of

Rs.2200 per month balance of Rs.1450 which
can be rounded up to Rs.1500 per month
would have been the average amount
available to the family of the deceased,
i.e. , his dependents, namely, appellants
herein. It is this figure which would be
the datum figure per month which on annual

basis would work out to Rs.18000/-.
Rs.18000/- therefore would be the proper
multiplicand which would be available for
capitalization for computing the future
economic loss suffered by the appellants on
account of untimely death of the bread

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20

winner. As the age of the deceased was 27
years and a few months at the time of his
death, the proper multiplier in the light
of the aforesaid decision of this Court in

GM Kerala S.R.T.C. would be 15.

Rs.18000/- multiplied by 15 will work out
to Rs.2,70,000/-. To this figure will have

to be added the conventional figure of
Rs.15000/- by way of loss of estate and
consortium etc. That will lead to a total
figure of Rs.2,85,000/-. This is the
amount which the appellants would be

entitled to get by way of compensation from
respondents 1 and 2 subject to our decision
on point no.2.”

16. Learned

counsel for the Respondents also

relied on the Judgment reported in 2006 (4) Mh.

L.J. Page 161, Kantabai w/o Sureshchandra Doshi

and others vs. Ahmed Khan Chand Khan (deceased)

by his LRs. Muktyarbi w/o Ahmed Khan and others

in which also the High Court held that future

prospects of the deceased should be considered at

the time of fixing the compensation.

17. On the other hand, learned A.G.P.

appearing for the Appellants submitted that the

Respondents failed to produce a single document on

record to show future prospects of the deceased

Rajendra Kenge. He further submitted that even

PW1 father of deceased nowhere stated in his

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21

evidence about the future prospects of the

deceased. Therefore, for want of any material on

record, it is not possible to consider the future

prospects of the deceased. Learned A.G.P.

further submitted that even the Respondents/

original claimants failed to produce any

documentary evidence on record to show that the

deceased was appointed on permanent basis as

Engineer in the Irrigation Department of State of

Maharashtra. The Respondents failed to produce on

record an

appointment

Engineer in Irrigation Department.

                                           letter        of      deceased          as
                           
    18.       It      is     thus     clear       that         neither           the

    Respondents/           original       claimants          produced            any
      


    documentary           evidence     on record to show that                    the
   



    deceased        was     appointed       on    permanent           basis        as

    Engineer        in the Irrigation Department of State of

Maharashtra nor the PW1 the father of the deceased

stated anything about future prospects in his

evidence. For want of evidence on record, it is

not possible to consider the future prospects of

deceased at the time of calculating the

compensation payable to the Respondents/ original

claimants. Accordingly Point No.3 for

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22

consideration is decided.

19. Considering the above mentioned facts and

circumstances in the present case, I hold that the

deceased was contributing a sum of Rs.1130/- per

month to his family. Therefore, on the basis of

contribution of Rs.1130/-, the Respondents/

original claimants are entitled a sum of

Rs.2,03,400/- towards the compensation instead of

Rs.1,03,900/- as awarded by the trial Court.


    Accordingly

    decided
                           
                          Point       No.4        for    consideration

and held that trial Court has not awarded
is

compensation properly.

20. The trial Court awarded interest at the

rate of 12% from the date of Application i.e.

10th July, 1989 till realisation of the amount.

But considering the present trend of Banking

transactions, I hold that the Respondents/

original claimants are entitled interest at the

rate of 7% per annum on enhanced compensation from

19th March, 1996, i.e. the date on which they

filed Cross Objection till realisation of the

amount. In sum and substance, Respondents/

original claimants are entitled 12% interest on

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enhanced compensation from 10th July, 1989 i.e.

date on which Application filed by them for

compensation, till 18th March, 1996, the date on

which they filed Cross Objections in this Court,

and from 19th March, 1996, Respondents are

entitled 7% interest per annum on enhanced

compensation till realisation of the amount.

Therefore, the following Order:

O R D E R

i) First Appeal No.109 of 1995 filed

by the State of Maharashtra is dismissed

with no order as to the costs.

ii) Cross Objection St. No.6197 of

1996 preferred by the Respondents/ original

claimants is partly allowed.

iii) Respondents / original claimants

are entitled compensation in totality to

the tune of Rs.2,03,400/-.

iv) Respondents/ original claimants are

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entitled interest on enhanced compensation

at the rate of 12% per annum from 10th

July, 1989 till 18th March, 1996 (date of

filing of Cross Objection).

v) Respondents are entitled interest

on enhanced compensation at the rate of 7%

per annum from 19th March, 1996 till

realisation of the amount.

vi)

First Appeal is dismissed and Cross

Objections are partly allowed, accordingly.

           vi)         No order as to the costs.
      


                                               [K.K. TATED]
   



                                                   JUDGE.

    asb/u/fa109.95

                                AUTHENTICATED COPY





                                (A.S. Bhagwat),

                             Personal Assistant to





                             the Honourable Judge.




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