{"id":59035,"date":"2009-05-08T00:00:00","date_gmt":"2009-05-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-asstt-engineer-vs-shri-dattatraya-ganpat-kenge-on-8-may-2009"},"modified":"2018-07-17T07:17:26","modified_gmt":"2018-07-17T01:47:26","slug":"the-asstt-engineer-vs-shri-dattatraya-ganpat-kenge-on-8-may-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-asstt-engineer-vs-shri-dattatraya-ganpat-kenge-on-8-may-2009","title":{"rendered":"The Asstt. Engineer vs Shri Dattatraya Ganpat Kenge on 8 May, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
The Asstt. Engineer vs Shri Dattatraya Ganpat Kenge on 8 May, 2009<\/div>\n
Bench: K. K. Tated<\/div>\n
                                 (1)\n\n\n\n\n            FIRST APPEAL NO.109 OF 1995\n                    WITH\n\n\n\n\n                                                                    \n            CROSS OBJECTION ST. NO.6197 OF 1996\n\n\n\n\n                                           \n                  Date of decision:    8TH MAY, 2009\n\n    For approval and signature.\n\n\n\n\n                                          \n    THE HONOURABLE SHRI JUSTICE K.K. TATED\n\n\n    1.    Whether Reporters of Local Papers               }     Yes\n          may be allowed to see the Judgment?             }\n\n\n\n\n                                  \n    2.     To be referred to the Reporter or not          }     Yes\/No\n\n    3.\n                      \n          Whether Their Lordships wish to see\n          the fair copy of the Judgment?\n                                                          }\n                                                          }\n                                                                No\n                     \n    4.    Whether this case involves a substantial        }\n          question of law as to the interpretation        }     No\n          of the Constitution of India, 1950 or           }\n          any Order made thereunder?                      }\n\n    5.    Whether it is to be circulated to the           }     No\n      \n\n\n          Civil Judges?                                   }\n   \n\n\n\n    6.    Whether the case involves an important          }\n          question of law and whether a copy of           }     No\n          the Judgment should be sent to Mumbai,          }\n          Nagpur and Panaji offices?                      }\n\n\n\n\n\n         [A.S. Bhagwat)\n         Personal Assistant to\n         the Honourable Judge.\n\n\n\n\n\n                                           ::: Downloaded on - 09\/06\/2013 14:36:01 :::\n                                 1\n\n\n\n\n        IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                   \n                   BENCH AT AURANGABAD.\n\n\n\n\n                                           \n         FIRST APPEAL NO.109 OF 1995\n\n\n    1) The Asstt. Engineer, Cl. II,\n\n\n\n\n                                          \n       Kukadi Left Canal, Sub-Divn. No.17,\n       Paragaon, Sudrik, Tq-Shrigonda,\n       Dist-Ahmednagar.\n\n    2) The Government of Maharashtra,\n       Irrigation Dept., Secretariate,\n\n\n\n\n                                   \n       Bombay.\n                                .... APPELLANTS.\n\n        VERSUS\n                   \n                  \n    1) Shri Dattatraya Ganpat Kenge,\n       Age-50 years, Occu:Nil,\n\n    2) Smt. Renuka Dattatraya Kenge,\n       Age-46 years, Occu:Household,\n      \n\n\n    Both R\/o- Renuka Niwas, Bagde Mala,\n   \n\n\n\n    Balikashram Road, Ahmednagar.\n\n    3) Vasant Sitaram Pawar,\n       Age-30 years, Occu:Driver,\n       R\/o-Ahmedabad, Tq-Shirur,\n\n\n\n\n\n       Dist-Pune,\n       At present R\/o- Pargaon Sudrik,\n       Kukadi Project Colony,\n       Tq-Shrigonda, Dist-Ahmednagar.\n\n    4) Mr. Joseph M. D'Souza,\n       386, Rasta Peth,\n\n\n\n\n\n       Pune-411 011.\n\n    5) The New India Assurance Co. Ltd.,\n       Registered and Head Office at\n       New India Assurance Building,\n       87, M.G. Road, Fort, Bombay.\n\n\n\n\n                                           ::: Downloaded on - 09\/06\/2013 14:36:01 :::\n                               2\n\n\n\n\n                                  ....   RESPONDENTS.\n\n                      ...\n\n\n\n\n                                                                   \n    Mr.M.L. Dharashive, A.G.P. for the Appellant.\n    Mr.P.S. Shendurnikar Advocate holding for Mr.\n\n\n\n\n                                           \n    R.T. Sharma Advocate for Respondent Nos. 1 & 2.\n    None present for Respondent Nos. 3 and 5.\n    Appeal is dismissed against Respondent No.4 as\n    per Registrar's Order dated 8\/4\/2008.\n                      ...\n\n\n\n\n                                          \n         WITH\n\n         CROSS OBJECTION ST. NO.6197 OF 1996\n\n\n\n\n                                 \n                    IN\n         FIRST APPEAL NO.109 OF 1995\n                   \n    1) The Asstt. Engineer, Cl. II,\n       Kukadi Left Canal, Sub-Divn. No.17,\n                  \n       Paragaon Sudrik, Tq-Shrigonda,\n       Dist-Ahmednagar.\n\n    2) The Government of Maharashtra,\n       Irrigation Dept., Secretariate,\n       Bombay.\n      \n\n\n                                .... APPELLANTS.\n   \n\n\n\n          VERSUS\n\n\n\n    1) Shri Dattatraya Ganpat Kenge,\n\n\n\n\n\n       Age-50 years, Occu:Nil,\n\n    2) Smt. Renuka Dattatraya Kenge,\n       Age-46 years, Occu:Household,\n\n    Both R\/o- Renuka Niwas, Bagde Mala,\n    Balikashram Road, Ahmednagar.\n\n\n\n\n\n    3) Vasant Sitaram Pawar,\n       Age-30 years, Occu:Driver,\n       R\/o-Ahmedabad, Tq-Shirur,\n       Dist-Pune,\n       At present R\/o- Pargaon Sudrik,\n\n\n\n\n                                           ::: Downloaded on - 09\/06\/2013 14:36:01 :::\n                                            3\n\n\n\n          Kukadi Project Colony,\n          Tq-Shrigonda, Dist-Ahmednagar.\n\n    4) Mr. Joseph M. D'Souza,\n\n\n\n\n                                                                                  \n       386, Rasta Peth,\n       Pune-411 011.\n\n\n\n\n                                                          \n    5) The New India Assurance Co. Ltd.,\n       Registered and Head Office at\n       New India Assurance Building,\n       87, M.G. Road, Fort, Bombay.\n\n\n\n\n                                                         \n                                               ....   RESPONDENTS.\n\n                              ...\n\n    Mr.P.S. Shendurnikar Advocate holding for Mr.\n    R.T. Sharma Advocate for Cross Objection\n\n\n\n\n                                              \n    Petitioners, i.e. Respondent Nos. 1 and 2.\n    Mr.M.L. Dharashive for Government of Maharashtra.\n                      ...\n                         \n                        \n            CORAM:   K.K. TATED, J.\n\n          JUDGMENT RESERVED   ON               : 29TH APRIL, 2009.\n          JUDGMENT PRONOUNCED ON               : 8TH MAY, 2009.\n      \n\n\n    JUDGMENT:\n<\/pre>\n
    1.       Heard      Mr.       Dharashive, learned A.G.P.                 for<\/p>\n
    the     Appellant       and      Mr.       Shendurnikar,          learned<\/p>\n
    counsel for Respondent Nos.                 1 and 2.\n<\/p>\n
    2.       Present        First    Appeal       filed      by     original<\/p>\n
    Respondent       Nos.     2 and 3 against the Judgment and<\/p>\n
    award     dated 27th January, 1994 passed by                      Member,<\/p>\n
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\n                                          4<\/span><\/p>\n
    Motor     Accident        Claims     Tribunal,      Ahmednagar            in<\/p>\n
    Motor     Accident Claim Application No.240 of                      1990.\n<\/p>\n
    The      original        claimants         also   preferred         Cross<\/p>\n
    Objection Stamp No.6197 of 1996 for enhancement of<\/p>\n
    compensation.\n<\/p>\n
    3.        In the present case the accident took place<\/p>\n
    on    5th January, 1989 in which one Rajendra                       Kenge<\/p>\n
    died.      Respondent No.1 and 2 filed Motor Accident<\/p>\n
    Claim      Application            No.240    of     1990        claiming<\/p>\n
    compensation<\/p>\n
    Section     110-A
\n                        to
\n                          ig   the tune of Rs.3,50,000\/-\n<\/p>\n
                             of the Motor Vehicles            Act,\n                                                                        under\n\n                                                                        1939.\n                        \n    The     trial Court awarded a sum of Rs.1,03,900\/- to\n\n    the     original claimants with interest at the                       rate\n\n<\/pre>\n
    of 12% per annum from the date of Application i.e.<\/p>\n
    10th July, 1989 till realisation of the amount.\n<\/p>\n
    4.        Learned        A.G.P.      submitted that the             trial<\/p>\n
    Court     erred in coming to the conclusion that                        the<\/p>\n
    original     claimants        are entitled compensation                   in<\/p>\n
    respect     of death of Rajendra Kenge to the tune of<\/p>\n
    Rs.1,03,900\/- along with interest.                  Learned A.G.P.\n<\/p>\n
    submitted     that the trial Court erred in coming to<\/p>\n
    the      conclusion         that         for      calculating           the<\/p>\n
    compensation,        the multiplier should be 15                   years.\n<\/p>\n
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\n                                           5<\/span><\/p>\n
    He     further submitted that the trial Court has not<\/p>\n
    considered           the   evidence       on record      and      awarded<\/p>\n
    excess compensation to the claimants.\n<\/p>\n
    5.        On         the    other     hand,     learned           counsel<\/p>\n
    appearing        on behalf of Respondent Nos.                 1 and        2\/<\/p>\n
    original        claimants submitted that the trial Court<\/p>\n
    ought     to     have awarded a sum of Rs.3,50,000\/-                       to<\/p>\n
    the     claimants.         Learned counsel for           Respondents\/<\/p>\n
    original        claimants     further       submitted         that       the<\/p>\n
    trial Court erred in coming to the conclusion that<\/p>\n
    the deceased used to contribute only 1\/3 income of<\/p>\n
    his     net     salary for house expenses.                 He     further<\/p>\n
    submitted        that the trial Court ought to have held<\/p>\n
    that     at the time of calculating the compensation,<\/p>\n
    the     multiplier         should be 17 years.             He     further<\/p>\n
    submitted        that the trial Court has not considered<\/p>\n
    the     future prospects of the deceased at the                        time<\/p>\n
    of     calculating the compensation.             On the basis of<\/p>\n
    these submissions, learned counsel for Respondents<\/p>\n
    submitted        that      the Cross Objection preferred                   by<\/p>\n
    them should be allowed in toto.\n<\/p>\n
    6.        On     the basis of the submissions of learned<\/p>\n
    counsel        for     the parties, the points             arises        for<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:36:01 :::<\/span>
\n                                      6<\/span><\/p>\n
    consideration, are as under:\n<\/p>\n
           i)         Whether the trial Court should have<\/p>\n
           taken     into consideration 2\/3 income of the<\/p>\n
           deceased      as     contribution      towards           the<\/p>\n
           family?\n<\/p><\/blockquote>\n
           ii)     Whether    the trial Court       should        have<\/p>\n
           adopted     17 years multiplier at the time of<\/p>\n
           calculating the compensation?\n<\/p><\/blockquote>\n
           iii)       Whether    the     trial Court ought            to<\/p>\n
           have      taken    into       consideration         future<\/p>\n
           prospects     of     the deceased at the time              of<\/p>\n
           calculating the compensation?\n<\/p><\/blockquote>\n
           iv)        Whether the compensation awarded by<\/p>\n
           the trial Court is according to law?\n<\/p><\/blockquote>\n
    7.     With    the assistance of learned counsel for<\/p>\n
    both   the parties, I have gone through the                Record<\/p>\n
    and Proceedings of the present case.            The accident<\/p>\n
    took   place on 5th January, 1989 in which Rajendra<\/p>\n
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\n                                               7<\/span><\/p>\n
    Kenge expired.             It is the case of the Respondents\/<\/p>\n
    original        claimants          that the deceased            was      Civil<\/p>\n
    Engineer            and      was      working          with     Irrigation<\/p>\n
    Department.          He was earning a sum of Rs.1856\/- per<\/p>\n
    month.         On     the date of accident, his age was                        27<\/span><\/p>\n
    years.         He used to contribute more than Rs.1200\/-\n<\/p>\n
    per     month towards house expenses.                    In support            of<\/p>\n
    his      contention,             learned          counsel         for        the<\/p>\n
    Respondents,          relied on salary certificate                      issued<\/p>\n
    by      Irrigation              Department,        Pune       dated        16th<\/p>\n
    February,<\/p>\n
    that     the
\n                     1989<\/span><\/p>\n
                        deceased<\/p>\n
                                 at Exhibit 36.\n<\/p>\n
                                       was    getting\n                                                        Exhibit 36\n\n                                                            net     salary\n                                                                             shows\n\n                                                                                   of\n                              \n    Rs.1694\/-.            Even the PW1 Dattatraya Ganpat Kenge,\n\n<\/pre>\n
    father of deceased in his evidence stated that his<\/p>\n
    son     was drawing a salary of Rs.1856\/- per                           month.\n<\/p>\n
    He     further stated in his evidence that out of his<\/p>\n
    salary,        the        deceased    used to       pay       Rs.900\/-         to<\/p>\n
    Rs.1000\/- to them for their expenses.                          Considering<\/p>\n
    these     facts,          the     trial        Court    held      that       the<\/p>\n
    deceased used to contribute 1\/3 of his salary i.e.<\/p>\n
    Rs.600\/-        to his family.            Learned counsel for                the<\/p>\n
    Respondents vehemently argued that the trial Court<\/p>\n
    erred     in        coming       to      the    conclusion        that       the<\/p>\n
    deceased        used to contribute only 1\/3 of his gross<\/p>\n
    salary i.e.          Rs.600\/- per month to his family.                         He<\/p>\n
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\n                                       8<\/span><\/p>\n
    submitted        that in several cases the Apex Court as<\/p>\n
    well as High Court held that usually 2\/3 amount to<\/p>\n
    be   considered       for fixing the    compensation.              In<\/p>\n
    support     of     his   contention learned      counsel         for<\/p>\n
    Respondents       relied   on the Judgment       reported          in<\/p>\n
    1995   (4)   B.C.R.      Page 421, Smt.      Mandabai        wd\/o.\n<\/p>\n
    Milind    Sontakke       and   another vs.     P.       Rajendra<\/p>\n
    Prasad    and     another.     He specifically      relied         on<\/p>\n
    para 23 of the Judgment, which reads as under:\n<\/p>\n
             “23.\n<\/p><\/blockquote>\n
                     It may be seen that the loss of
\n             dependency is measured by the loss of the
\n             amount    of pecuniary    benefit that the<\/p>\n
             dependants could reasonably expect to have
\n             received from the deceased in future.     In
\n             the ordinary case of the death of a wage
\n             earner that figure is       arrived at    by
\n             deducting from the wages the estimated
\n             amount of his own personal and living<\/p>\n
             expenses.    It is necessary to see that in
\n             the absence of any evidence in that regard<\/p>\n
             the amount of personal and living expenses
\n             of   the     deceased    is   conventionally
\n             determined by apportioning equal shares
\n             between him and his dependents. Thus where
\n             there are three family members, 1\/3rd of<\/p>\n
             his wages is estimated as his own personal
\n             and living expenses.       However, in the
\n             instant case the learned Claims Tribunal
\n             has first excluded the honorarium of Rs.300
\n             per month which the deceased Milind was
\n             getting from his Union, from his income on
\n             the ground that he was spending his time<\/p>\n
             and energy in the Union work.        It has
\n             thereafter excluded his share in his salary
\n             by taking his family as consisting of 2-1\/2
\n             units.    In our view, the above approach of
\n             the learned Claims Tribunal is clearly
\n             erroneous.    In considering the question of<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:36:01 :::<\/span>
\n                                         9<\/span><\/p>\n
              loss of benefit to the family of the
\n              dependents what has to be excluded is the
\n              personal   and living    expenses of    the
\n              deceased.   As such there is no reason to<\/p>\n
              exclude the amount of Rs.300 per month
\n              which the deceased Milind was getting as
\n              honorarium from his Union.      If he was<\/p>\n
              spending his time and energy in the Union
\n              work, what needed to be excluded is the
\n              expenditure which he incurred i.e.      his
\n              personal and living expenses for doing the
\n              union work.    In fact the learned claims<\/p>\n
              Tribunal ought to have taken the total
\n              income of the deceased Milind from salary
\n              and the said honorarium at Rs.1000 and then
\n              deducted from the said income the personal
\n              and living expenses of deceased Milind in
\n              discharging his own duties in the factory<\/p>\n
              as well as in doing the union work and
\n              calculated rest of the income as loss of<\/p>\n
              benefit to his family.”\n<\/p><\/blockquote>\n
    8.        Learned counsel for the Respondents further<\/p>\n
    relied     on     the Judgment reported in 2006 (4)                Mh.\n<\/p>\n
    L.J.      Page 161, Kantabai w\/o Sureshchandra                 Doshi<\/p>\n
    and    others vs.           Ahmed Khan Chand Khan<\/a>     (deceased)<\/p>\n
    by     his    LRs.          Muktyarbi   w\/o   Ahmed     Khan       and<\/p>\n
    others.68        In    this case learned Single         Judge        of<\/p>\n
    this     Court        held that 1\/3 amount to      be     deducted<\/p>\n
    towards      personal expenses of deceased.             Para 7 of<\/p>\n
    the    Judgment        is    relevant here, which       reads        as<\/p>\n
    under:\n<\/p>\n
              “7.     In MACP No.221 of 1991, it seems
\n              that deceased Sureshchand Doshi is survived
\n              by two daughters and two sons and applicant
\n              no.1 widow as well. The learned tribunal<\/p>\n
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\n                         10<\/span><\/p>\n
     has justifiably referred to the dependency
\n     of the parents in appeal no. 312 of 2000.\n<\/p><\/blockquote>\n
     The income of the deceased Sureshchandra
\n     Doshi,    as an advocate     and from     the<\/p>\n
     agriculture land, is      considered to be
\n     Rs.36000 per annum. It comes to Rs.3000
\n     per month. In the absence of any proof of<\/p>\n
     his    income, the    learned tribunal has
\n     justifiably arrived at      conclusion with
\n     little guess work. The learned Tribunal
\n     however, while working out the amount of
\n     compensation,    on account of death       of<\/p>\n
     Sureshchandra Doshi, applied the multiplier
\n     of 12. It is pertinent to note that there
\n     is no age proof placed on record by the
\n     Appellants, except the      oral   evidence.
\n     However, the learned Judge seems to have
\n     chosen    multiplier as 12     without    any<\/p>\n
     explanation.      While      applying     the
\n     multiplier, the tribunal\/ Court has to<\/p>\n
     arrive at a conclusion, regarding the age
\n     of deceased person, on       the basis
\n     evidence and\/ or the facts circumstances,
\n                                                of<\/p>\n
     and other material on record. On the basis<\/p>\n
     of material on record, in the present case,
\n     in my opinion, it is difficult to record
\n     any finding regarding the specific age of
\n     deceased Sureshchandra Doshi. However, it
\n     can     be    considered    that    deceased
\n     Sureschandra Doshi must be above 40 years<\/p>\n
     of age and below 45 years, on the date of
\n     the accident.     To choose the multiplier,<\/p>\n
     reference, can be made to IInd Scheddule of
\n     Section 163 A of the Motor Vehicles Act,
\n     1988, by way of guideline. In that case,
\n     help of IInd Schedule referred to under
\n     Section 163 A, can be taken for working out<\/p>\n
     compensation as well. The learned counsel
\n     Mr.    Patni has relied on Judgment of the
\n     Apex    Court in the     matter of     United
\n     Insurance Company Ltd.      and others vs.
\n     Patricia Jean Mahajan and others (2002) 6
\n     S.C.C.    281. The Apex Court in the matter
\n     of United India Insurance (supra) held that<\/p>\n
     –\n<\/p>\n
             “12.    It thus makes it clear that
\n             it is for the tribunal to arrive at
\n             an amount of compensation, which it<\/p>\n
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\n                         11<\/span><\/p>\n
            may consider to the just in the
\n            facts and circumstances         of the
\n            case. This Court however, has been
\n            of the view that structured formula<\/p>\n
            as    provided under      the     second
\n            Schedule would be a safe guide to
\n            calculate    the amount       of    just<\/p>\n
            compensation.     Deviation       though
\n            permissible, may only be resorted
\n            to for some special reasons to do
\n            so.    So far as structured formula
\n            is concerned, it provides for a<\/p>\n
            maximum multiplier of        18.     The
\n            application    of    the    multiplier
\n            depends    upon the      age of      the
\n            deceased etc. Again we find that
\n            the structured formula relates to a
\n            victim    whose income        is    upto<\/p>\n
            Rs.40,000 per annum. It may be
\n            clarified that in the accepted and<\/p>\n
            prevalent     method,       would
\n            applicable and has been applied.\n<\/p><\/blockquote>\n
            The question of       setting\n                                                  be\n\n                                               apart\n<\/pre>\n
            1\/3rrd of the income on account of<\/p>\n
            expenditure on self by the deceased
\n            is also not in dispute i.e. to say
\n            that the amount of multiplicand
\n            shall be 2\/3rds of the            annual
\n            income of the deceased. The annual
\n            income of the deceased, as found by<\/p>\n
            the learned Single Judge and the
\n            Division Bench, namely, 3,39,445<\/p>\n
            dollars is also not in dispute, nor
\n            the amount of dependency , 2,26,297
\n            U.S. dollars. The only dispute is
\n            about    application    of       13   as
\n            multiplier as applied by a Division<\/p>\n
            Bench of the High Court following
\n            the second Schedule to the Act.”\n<\/p><\/blockquote>\n
     In this view of the matter, in my view,
\n     multiplier of 15 for the age group in
\n     between 40 to 45, as mentioned in Schedule
\n     II of Section 163 A of the Motor Vehicles<\/p>\n
     Act can safely be accepted.      Thus, the
\n     amount of compensation with multiplier of
\n     15 would be as follows, after deducting 1\/3
\n     for personal expenses:-\n<\/p>\n
     2400- X 15 = 3,60,000\/-\n<\/p>\n
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\n                                  12<\/span><\/p>\n
            The learned tribunal has awarded an amount
\n            of    Rs.2,88,000\/-    towards    loss   of
\n            dependency, thus the claimants are entitled<\/p>\n
            for enhancement of amount of Rs.72,000\/-
\n            for non pecuniary head of the compensation.
\n            The learned tribunal, has awarded an amount<\/p>\n
            of Rs.12,000\/- towards loss of consortium
\n            and life and affection, justifiably.     In
\n            other words, appellants are entitled to
\n            seek enhancement of compensation to the
\n            tune of Rs.3,72,000\/- in it’s totality in<\/p>\n
            this appeal, filed for enhancement in the
\n            amount of compensation.”\n<\/p><\/blockquote>\n
    9.      Learned    counsel for the Respondents relied<\/p>\n
    on    the   Judgment reported in AIR 2008 S.C.             Page<\/p>\n
    1221,<\/p>\n
            A.P.S.R.T.C.    and another vs.      M.     Ramadevi<\/p>\n
    and others.     In this case the Apex Court held that<\/p>\n
    after deducting 1\/3 amount, remaining amount to be<\/p>\n
    considered for determining the compensation.               Head<\/p>\n
    Note B of the Judgment reads as under:\n<\/p>\n
            “B.     Motor Vehicles Act (59 of 1988)
\n            S.168- Accident – Claim for compensation –
\n            deceased, bus driver, was 40 years of age –\n<\/p><\/blockquote>\n
            monthly income taken at Rs.3000\/-, after
\n            deducting    1\/3       therefrom,    annual
\n            contribution is fixed at Rs.24000\/-       –
\n            multiplier of 10 adopted      – amount of
\n            Rs.20,000\/- fixed for pecuniary damages and
\n            consortium – claimants     thus, would be
\n            entitled to Rs.2,60,000\/- – interest rate<\/p>\n
            of 9% fixed by High Court, not interfered
\n            with.”\n<\/p><\/blockquote>\n
    10.     Thus,   it is to be noted that in all            these<\/p>\n
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\n                                                 13<\/span><\/p>\n
    Authorities,          the Apex Court as well as High Court<\/p>\n
    held         that,         at      the         time      of         calculating<\/p>\n
    compensation,          only 1\/3 amount to be deducted                            for<\/p>\n
    net     contribution             of     the      deceased        towards         his<\/p>\n
    family.         Considering             the       Authorities           referred<\/p>\n
    above,       I hold that trial Court erred in coming to<\/p>\n
    the         conclusion           that    the       deceased           used         to<\/p>\n
    contribute        only 1\/3 of his salary to his                           family.<\/p>\n
\n\n    It     is     admitted           position         that    as        per     salary\n\n\n\n\n                                                  \n    certificate          Exhibit          36,     deceased         used       to     get\n\n\n\n    the     G.P.F.\n                               \n<\/pre>\n
    Rs.1856\/- per month gross salary.\n<\/p>\n
                          and other deductions, he used to
\n                                                             After deducting<\/p>\n
                                                                                     get<\/p>\n
    net     amount        of     Rs.1694\/-.             Therefore,            2\/3      of<\/p>\n
    Rs.1694\/-        comes          to Rs.1130\/-.           The      trial         Court<\/p>\n
    ought        to have considered the sum of Rs.1130\/-                               as<\/p>\n
    contribution          of the deceased for the                      maintenance<\/p>\n
    of     his     family.           Considering the above                mentioned<\/p>\n
    Authorities,          I      hold       that      for    calculating             the<\/p>\n
    compensation          payable to the Respondents\/ original<\/p>\n
    claimants,        a        sum     of Rs.1130\/- to             be     taken        as<\/p>\n
    contribution          of the deceased towards his                         family.\n<\/p>\n
    Accordingly the Point No.1 is decided.\n<\/p>\n
    11.         Learned         counsel            appearing              for        the<\/p>\n
    Respondents\/ original claimants submitted that the<\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 14:36:01 :::<\/span>
\n                                           14<\/span><\/p>\n
    trial         Court      ought   to        have    held    that         for<\/p>\n
    calculating       compensation, multiplier should be 17<\/p>\n
    years        in the present case.          He submitted that              on<\/p>\n
    the     date     of accident, the deceased was 27                     years<\/p>\n
    old.         Considering the age of the deceased and age<\/p>\n
    of his family members, the trial Court should have<\/p>\n
    held that proper multiplier in the present case is<\/p>\n
    17     years.         He further submitted that            the        trial<\/p>\n
    Court        on the basis of Judgment of the Apex                     Court<\/p>\n
    in     the     matter of General Manager,                Kerala       State<\/p>\n
    Road     Transport<\/p>\n
                             Corporation        vs.<\/p>\n
    Thomas<\/a> decided on 6th January, 1993, wherein it is
\n                                                         Smt.        Susamma<\/p>\n
    held     that the maximum multiplier to be adopted is<\/p>\n
    of 16 years.          On the basis of the said decision of<\/p>\n
    the     Apex Court, the trial Court held that                      proper<\/p>\n
    multiplier       would be 15 years in the present case.\n<\/p>\n
    Learned counsel for Respondents relied on the Apex<\/p>\n
    Court     Judgment reported in (1996) 4 Supreme Court<\/p>\n
    Cases, 362, U.P.          State Road Transport Corporation<\/p>\n
    and     others    vs.     Trilok Chandra and             others<\/a>.          In<\/p>\n
    this     case the Apex Court held that the multiplier<\/p>\n
    varies       from 5 to 18 depending upon the age                    group<\/p>\n
    to     which    the     victim belongs.           Para    17     of     the<\/p>\n
    Judgment reads as under:\n<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 14:36:01 :::<\/span>
\n                                        15<\/span><\/p>\n
              “17.     The situation has now undergone a
\n              change with the enactment of the Motor
\n              Vehicles Act, 1988 as amended by Amendment<\/p>\n
              Act 54 of 1994. The most important change
\n              introduced by the Amendment insofar as it
\n              relates to determination of compensation is<\/p>\n
              the insertion of Sections 163 A and 163
\n              in Chapter XI entitled “Insurance of Motor
\n              Vehicles    against Third     Party  Risks”.
\n              Section 165 A begins with a non obstanted
\n              clause    and    provides   for payment    of<\/p>\n
              compensation, as indicated in the second
\n              Schedule, to the legal representatives of
\n              the deceased, as the case may be. Now if
\n              we turn to the second Schedule, we find a
\n              table fixing the mode of calculation of
\n              compensation for third       party  accident<\/p>\n
              injury    claims    arising   out of    fatal
\n              accident.    The first column gives the age<\/p>\n
              group of the victims of the accident. The
\n              second column indicates the multiplier and
\n              the subsequent horizontal figures indicates
\n              the quantum of compensation in thousand<\/p>\n
              payable to the heirs        of the deceased
\n              victim.     According to     the table    the
\n              multiplier varies from 5 to 18 depending on
\n              the age group to which the victim belonged.
\n              Thus, under this Schedule, the maximum
\n              multiplier can be up to 18 and not 16 as<\/p>\n
              was held in Susamma Thomas case.”\n<\/p><\/blockquote>\n
    12.       On the basis of this Authority, the learned<\/p>\n
    counsel        for     the Respondents submitted     that       the<\/p>\n
    trial     Court ought to have held the multiplier                 of<\/p>\n
    17    years for calculating the compensation payable<\/p>\n
    to the Respondents\/ original claimants.\n<\/p>\n
    13.       On         the   other   hand,   learned         A.G.P.\n<\/p>\n
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\n                                               16<\/span><\/p>\n
    appearing        on       behalf of the Appellants                submitted<\/p>\n
    that     the     trial Court correctly held that in                          the<\/p>\n
    present        case       the multiplier should be                15      years<\/p>\n
    only.      Learned counsel pointed out that Authority<\/p>\n
    cited     by     the       learned        counsel      for     Respondents<\/p>\n
    reported        in    (1996) 3 Supreme Court                 Cases,        179,<\/p>\n
    Sarla     Dixit (Smt) and another vs.                    Balwant         Yadav<\/p>\n
    and     others,       is     useful       in    the      present          case.\n<\/p>\n
    Learned        A.G.P.       submitted that the Apex Court                      in<\/p>\n
    the matter of Sarla Dixit (supra) held that for 27<\/p>\n
    years deceased, 15 is proper multiplier.\n<\/p>\n
    Court in this Authority held that:\n<\/p>\n
                                                                        The Apex<\/p>\n
              “.      As the age of the deceased was 27
\n              years and a few months at the time of his
\n              death, the proper multiplier in the light<\/p>\n
              of the aforesaid decision of this Court in
\n              the case of G.M. Kerala vs.       S.R.T.C.\n<\/p><\/blockquote>\n
              would be 15.”\n<\/p><\/blockquote>\n
    14.       In     view of these observations of the                         Apex<\/p>\n
    Court,     learned          A.G.P.     submitted that the                trial<\/p>\n
    Court     rightly          held    that in       the      present         case,<\/p>\n
    multiplier        should       be 15 years.           Considering            the<\/p>\n
    submissions          made     by     learned          counsel       for      the<\/p>\n
    Respondents          as     well     as        learned     A.G.P.            and<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 14:36:01 :::<\/span>
\n                                               17<\/span><\/p>\n
    considering the Apex Court Authority in the matter<\/p>\n
    of     Sarla Dixit (supra), I do not find any                             reason<\/p>\n
    to     interfere the finding of the trial Court about<\/p>\n
    multiplier.                Accordingly,             Point          No.2        for<\/p>\n
    consideration is decided.<\/p>\n
\n\n\n\n\n                                                               \n    15.       Learned           counsel for Respondents                   submitted\n\n    that     the     trial Court at the time of                      calculating\n\n    the     compensation,            has not considered the                   future\n\n\n\n\n                                               \n    prospects        of        the     deceased Rajendra             Kenge.          He\n\n    submitted        that\n                               \n                                 the deceased was Engineer and\n\n<\/pre>\n
    was working with Irrigation Department of State of
\n                                                                                     he<\/p>\n
    Maharashtra           for     more    than      6 to        8    years.          He<\/p>\n
    further        submitted         that considering               the     service<\/p>\n
    record     of deceased, the trial Court ought to have<\/p>\n
    considered           the     future prospects of the                   deceased<\/p>\n
    for     determining           the amount of compensation.                        He<\/p>\n
    submitted        that        the     Apex Court in           the       Judgment<\/p>\n
    reported        in    (1996) 3 Supreme Court                    Cases,       179,<\/p>\n
    Sarla    Dixit (Smt) and another vs.                    Balwant            Yadav<\/p>\n
    and     others,        held        that     future      prospects                of<\/p>\n
    advancement in life and career should also sounded<\/p>\n
    in    terms     of     money        at the time        of        fixing        the<\/p>\n
    compensation.               He     relied      on     Para        7     of     the<\/p>\n
    Judgment, which reads as under:\n<\/p>\n
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\n                         18<\/span><\/p>\n
     “7.      So far as the adoption of the<\/p>\n
     proper multiplier is concerned, it was
\n     observed that the       future prospects of
\n     advancement in life and career should also<\/p>\n
     be sounded in terms of money to augment the
\n     multiplicand.     While    chance    of  the
\n     multiplier is determined by two factors,
\n     namely, the rate of interest appropriate to
\n     stable economy and the age of the deceased<\/p>\n
     or of the claimant whichever is higher, the
\n     ascertainment of the multiplicand is a more
\n     difficult exercise. Indeed, many factors
\n     have to be put into the scales to evaluate
\n     the contingencies of       the future.   All
\n     contingencies    of the     future need not<\/p>\n
     necessarily be baneful.       Applying these
\n     principles to the facts of the case before<\/p>\n
     this Court in the aforesaid case it was
\n     observed that the deceased in that case was
\n     of 39 years of age. His income was Rs.1032
\n     per month. He was more or less on a stable<\/p>\n
     job    and considering     the prospects of
\n     advancement in future career the proper
\n     higher    estimate of     monthly income of
\n     Rs.2000 as a gross income to be taken as
\n     average future gross future income of the
\n     deceased    and deducting at      least  1\/3<\/p>\n
     therefrom by way of personal expenses, had
\n     he survived the loss of dependency, could<\/p>\n
     be capitalized by adopting the multiplicand
\n     of Rs.1400 per month or Rs.17000 per year
\n     and that figure could be capitalized by
\n     adopting    multiplier of 12      which  was
\n     appropriate to the age of the deceased<\/p>\n
     being 39 and to that amount was added the
\n     conventional figure of Rs.15000 by way of
\n     loss of consortium and loss of estate.
\n     Adopting the same scientific yard stick as
\n     laid down in the aforesaid Judgment, the
\n     computation of compensation in the present
\n     case can almost be subjected to a well<\/p>\n
     settled mathematical formula. Deceased in
\n     the present case, as        seen above, was
\n     earning gross salary of Rs.1543 per month.
\n     Rounding it up to figure of Rs.1500 and
\n     keeping in view all the future prospects
\n     which the deceased had in stable military<\/p>\n
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\n                          19<\/span><\/p>\n
     service in the light of his brilliant
\n     academic record and performance in the
\n     military service spread over 7 years, and
\n     also      keeping    in    view    the    other<\/p>\n
     imponderables like accidental death while
\n     discharging military duties and hazards of
\n     military     service,   it    will    not    be<\/p>\n
     unreasonable to predicate that his gross
\n     monthly income would have shot up to at
\n     least double than what he was earning at
\n     the time of his death, i.e., up to Rs.3000
\n     per month had he survived in life and had<\/p>\n
     successfully completed his future military
\n     career till the time of superannuation.
\n     The average gross future monthly income
\n     could be arrived at by adding the actual
\n     gross income at the time of death, namely
\n     Rs.1500 per month to the maximum which he<\/p>\n
     would have otherwise got had he not died a
\n     premature death, i.e. , Rs.3000 per month<\/p>\n
     and dividing that figure by two. Thus, the
\n     average gross monthly income spread over
\n     his entire future career, had it been
\n     available,     would work    out to Rs.4500<\/p>\n
     divided by 2, i.e., Rs.2200. Rs.2000 per
\n     month would have been the gross monthly
\n     average income available to the family of
\n     the deceased had he survived as a bread
\n     winner.     From that gross monthly income at
\n     least 1\/3 will have to be deducted by way<\/p>\n
     of    his    personal   expenses and      other
\n     liabilities like payment of income tax etc.<\/p>\n
     That would roughly work out to Rs.730\/- per
\n     month but even taking a higher figure of
\n     Rs.750 per month and deducting the same by
\n     way of average personal expenses of the
\n     deceased from the average gross earning of<\/p>\n
     Rs.2200 per month balance of Rs.1450 which
\n     can be rounded up to Rs.1500 per month
\n     would     have    been  the average     amount
\n     available to the family of the deceased,
\n     i.e.    , his dependents, namely, appellants
\n     herein.     It is this figure which would be
\n     the datum figure per month which on annual<\/p>\n
     basis     would work    out to     Rs.18000\/-.
\n     Rs.18000\/- therefore would be the proper
\n     multiplicand which would be available for
\n     capitalization for computing the future
\n     economic loss suffered by the appellants on
\n     account of untimely death of the bread<\/p>\n
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\n                                        20<\/span><\/p>\n
             winner.   As the age of the deceased was 27
\n             years and a few months at the time of his
\n             death, the proper multiplier in the light
\n             of the aforesaid decision of this Court in<\/p>\n
             GM   Kerala   S.R.T.C.      would   be  15.\n<\/p>\n
             Rs.18000\/- multiplied by 15 will work out
\n             to Rs.2,70,000\/-. To this figure will have<\/p>\n
             to be added the conventional figure of
\n             Rs.15000\/- by way of loss of estate and
\n             consortium etc. That will lead to a total
\n             figure of Rs.2,85,000\/-.       This is the
\n             amount   which the     appellants would be<\/p>\n
             entitled to get by way of compensation from
\n             respondents 1 and 2 subject to our decision
\n             on point no.2.”\n<\/p>\n
    16.      Learned<\/p>\n
                             counsel   for the Respondents           also<\/p>\n
    relied     on     the Judgment reported in 2006 (4)                Mh.\n<\/p>\n
    L.J.     Page 161, Kantabai w\/o Sureshchandra                  Doshi<\/p>\n
    and    others vs.         Ahmed Khan Chand Khan<\/a>       (deceased)<\/p>\n
    by    his LRs.         Muktyarbi w\/o Ahmed Khan and           others<\/p>\n
    in    which      also     the High Court held      that       future<\/p>\n
    prospects        of the deceased should be considered at<\/p>\n
    the time of fixing the compensation.\n<\/p>\n
    17.      On       the      other   hand,     learned          A.G.P.\n<\/p>\n
    appearing        for     the Appellants submitted that             the<\/p>\n
    Respondents failed to produce a single document on<\/p>\n
    record     to     show future prospects of the            deceased<\/p>\n
    Rajendra        Kenge.      He further submitted that            even<\/p>\n
    PW1    father      of     deceased nowhere   stated         in     his<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:36:01 :::<\/span>
\n                                             21<\/span><\/p>\n
    evidence        about     the     future          prospects         of       the<\/p>\n
    deceased.         Therefore, for want of any material on<\/p>\n
    record,        it is not possible to consider the future<\/p>\n
    prospects         of     the      deceased.             Learned          A.G.P.\n<\/p>\n
    further        submitted       that      even      the       Respondents\/<\/p>\n
    original         claimants         failed          to      produce           any<\/p>\n
    documentary           evidence     on record to show that                    the<\/p>\n
    deceased        was     appointed       on    permanent           basis        as<\/p>\n
    Engineer        in the Irrigation Department of State of<\/p>\n
    Maharashtra.           The Respondents failed to produce on<\/p>\n
    record     an<\/p>\n
                      appointment<\/p>\n
    Engineer in Irrigation Department.\n<\/p>\n
                                           letter        of      deceased          as\n                           \n    18.       It      is     thus     clear       that         neither           the\n\n    Respondents\/           original       claimants          produced            any\n      \n\n\n    documentary           evidence     on record to show that                    the\n   \n\n\n\n    deceased        was     appointed       on    permanent           basis        as\n\n    Engineer        in the Irrigation Department of State of\n\n<\/pre>\n
    Maharashtra nor the PW1 the father of the deceased<\/p>\n
    stated     anything        about       future prospects               in     his<\/p>\n
    evidence.         For want of evidence on record, it                           is<\/p>\n
    not   possible to consider the future prospects                                of<\/p>\n
    deceased         at      the     time        of     calculating              the<\/p>\n
    compensation           payable to the Respondents\/ original<\/p>\n
    claimants.              Accordingly           Point            No.3          for<\/p>\n
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\n                                              22<\/span><\/p>\n
    consideration is decided.\n<\/p>\n
    19.       Considering         the above mentioned facts                      and<\/p>\n
    circumstances in the present case, I hold that the<\/p>\n
    deceased        was contributing a sum of Rs.1130\/-                          per<\/p>\n
    month     to his family.             Therefore, on the basis                   of<\/p>\n
    contribution           of     Rs.1130\/-,            the      Respondents\/<\/p>\n
    original         claimants         are     entitled          a      sum        of<\/p>\n
    Rs.2,03,400\/-         towards the compensation instead of<\/p>\n
    Rs.1,03,900\/-         as      awarded         by    the     trial        Court.<\/p>\n
\n\n    Accordingly\n\n    decided\n                           \n                          Point       No.4        for    consideration\n\n<\/pre>\n
                  and held that trial Court has not awarded
\n                                                                                   is<\/p>\n
    compensation properly.\n<\/p>\n
    20.       The     trial       Court awarded interest                  at     the<\/p>\n
    rate     of     12%    from the date of              Application           i.e.<\/p>\n
    10th     July,     1989 till realisation of the                       amount.\n<\/p>\n
    But     considering         the      present        trend      of     Banking<\/p>\n
    transactions,           I     hold        that      the      Respondents\/<\/p>\n
    original        claimants      are entitled interest at                      the<\/p>\n
    rate of 7% per annum on enhanced compensation from<\/p>\n
    19th     March,       1996, i.e.          the date on            which     they<\/p>\n
    filed     Cross       Objection          till realisation             of     the<\/p>\n
    amount.          In    sum        and     substance,         Respondents\/<\/p>\n
    original        claimants      are entitled 12% interest                       on<\/p>\n
                                                              ::: Downloaded on – 09\/06\/2013 14:36:01 :::<\/span>
\n                                         23<\/span><\/p>\n
    enhanced       compensation       from 10th July, 1989               i.e.<\/p>\n
    date     on    which     Application        filed    by     them       for<\/p>\n
    compensation,          till 18th March, 1996, the date                   on<\/p>\n
    which     they filed Cross Objections in this                     Court,<\/p>\n
    and     from    19th     March,     1996,      Respondents             are<\/p>\n
    entitled       7%     interest    per       annum    on       enhanced<\/p>\n
    compensation          till    realisation     of     the        amount.\n<\/p>\n
    Therefore, the following Order:\n<\/p>\n
                            O R D E R<\/p>\n<\/blockquote>\n
             i)           First    Appeal No.109 of 1995               filed<\/p>\n
             by     the    State of Maharashtra is              dismissed<\/p>\n
             with no order as to the costs.\n<\/p><\/blockquote>\n
             ii)          Cross    Objection      St.        No.6197         of<\/p>\n
             1996 preferred by the Respondents\/ original<\/p>\n
             claimants is partly allowed.\n<\/p><\/blockquote>\n
             iii)         Respondents       \/   original        claimants<\/p>\n
             are     entitled      compensation in totality                  to<\/p>\n
             the tune of Rs.2,03,400\/-.\n<\/p><\/blockquote>\n
             iv)          Respondents\/ original claimants are<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:36:01 :::<\/span>
\n                                      24<\/span><\/p>\n
           entitled        interest on enhanced compensation<\/p>\n
           at    the     rate   of 12% per annum         from      10th<\/p>\n
           July,       1989 till 18th March, 1996 (date                of<\/p>\n
           filing of Cross Objection).\n<\/p><\/blockquote>\n
           v)          Respondents        are entitled      interest<\/p>\n
           on    enhanced compensation at the rate of 7%<\/p>\n
           per     annum     from   19th      March,     1996      till<\/p>\n
           realisation of the amount.\n<\/p><\/blockquote>\n
           vi)<\/p>\n
                       First Appeal is dismissed and Cross<\/p>\n
           Objections are partly allowed, accordingly.\n<\/p><\/blockquote>\n
           vi)         No order as to the costs.\n      \n\n\n                                               [K.K. TATED]\n   \n\n\n\n                                                   JUDGE.\n\n    asb\/u\/fa109.95\n\n                                AUTHENTICATED COPY\n\n\n\n\n\n                                (A.S. Bhagwat),\n\n                             Personal Assistant to\n\n\n\n\n\n                             the Honourable Judge.\n\n\n\n\n                                                  ::: Downloaded on - 09\/06\/2013 14:36:01 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
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 } […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-59035","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nThe Asstt. 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