1 caf.2150.09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO.2150 OF 2009 WITH CIVIL APPLICATION NO.3030 OF 2010 IN FIRST APPEAL (STAMP) NO.11779 OF 2009 National Insurance Co.Ltd. ...Applicant Versus Smt.Babybai Dwarkanath Tikone & Ors. ...Respondents ...... Mr.Ramesh Cheulkar for Applicant. Mr.U.B.Nighot for Respondents 1 to 6. ...... CORAM:- A.M.KHANWILKAR AND A.A.SAYED, JJ. DATED:- AUGUST 12, 2010. P.C. 1. By this Application, it is prayed that the operation of the impugned Judgment and Decree be stayed. It is not in dispute that the Applicant Company has deposited the decretal amount in the Trial Court. Therefore, the Applicant is entitled for interim relief as prayed in terms of prayer clause (a). The Application ought to succeed on these terms. 2. The next question is: whether the Respondents 1 to 6 should be permitted to withdraw the decretal amount deposited by the Applicant in the 2 caf.2150.09.sxw Trial Court. The Respondents 1 to 6 by separate application have prayed for permission to withdraw the same. Counsel for the Applicant has opposed this prayer on the argument that as a matter of fact, the Respondents 1 to 6 are not entitled for any relief, considering the fact that the claimants are second wife and children born out of the marriage with the second wife. This objection, however, overlooks that the claim application was not only filed by the second wife and her children but also the first wife who is one of the claimant. Admittedly, the compensation cannot be denied to the first wife who is legally wedded wife. In any case, the apprehension of the Applicant can be assuaged by allowing only the Respondent No.1 to withdraw the entire amount, who in turn, may be free to disburse amount inter se as per the arrangement to be arrived at between the Respondents 1 to 6. The Respondents 1 to 6 are willing to abide by this arrangement. The Applicant Company cannot raise any objection to such arrangement. 3. The next objection is that there is dispute on the quantum of compensation both on account of incorrect calculation of income of the deceased and also on application of multiplier. Even this objection can be addressed by requiring the Respondents 1 to 6 to provide suitable security. However, Counsel for the Applicant submits that the Respondents 1 to 6 be 3 caf.2150.09.sxw allowed to withdraw only 50% of the amount and not the entire decretal amount. Even this objection does not commend to us for more than one reason. In the first place, it cannot be argued by the Applicant that the Respondents 1 to 6 are not entitled to any compensation at all. The argument is, however, with regard to quantum of income dues by the Trial Court and application of appropriate multiplier. To address this apprehension of the Applicant, in our opinion, interest of justice would be met if the Respondents 1 to 6 were to furnish security to the extent of 50% of the decretal amount which will be withdrawn by them. Counsel for the Applicant has placed reliance on the decision of the Apex Court in the case of Haribhau Namdeo Shingote vs. State Bar Council of Maharashtra & Goa & Anr. reported in 2001 AIR SCW 5102 (2). Reliance placed on this decision is completely misplaced. This decision does not take the view that the claimants cannot be allowed to withdraw the entire decretal amount. It only deals with the condition to be imposed on the claimants to the extent of 50% of the amount deposited by the Insurance Company. The condition can be of furnishing bank guarantee or even security. We are allowing the Respondents 1 to 6 to withdraw the amount on furnishing solvent security to the extent of 50% of the decretal amount. 4 caf.2150.09.sxw 4. Accordingly, we proceed to pass the following order : (a) The operation of the Judgment and Decree impugned before this Court by way of appeal shall remain stayed during the pendency of Appeal. (b) The Respondents 1 to 6 are allowed to withdraw the entire decretal amount provided they comply with the following conditions: (i) They should furnish solvent security to the satisfaction of the Trial Court to the extent of 50% of the decretal amount. (ii) They shall file undertaking in this Court that in the event, the Appeal succeeds and the Court so directs, they shall bring back the whole or portion of the amount withdrawn by them along with interest, if any. That undertaking be filed in this Court within four weeks from today. (c) If the Respondents 1 to 6 fail to comply with the above said two conditions within four weeks from today, the Trial Court shall proceed to invest the decretal amount in appropriate fixed deposit scheme in a nationalised bank, if already not done. 5 caf.2150.09.sxw 5. Both the Applications are disposed of on the above terms. (A.A.SAYED, J.) (A.M.KHANWILKAR, J.)