1 fa164 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.164 OF 2011 ICICI Lombard General Insurance Company Ltd. ...Appellant vs. Namdev Jagannath Narkhede & Ors. ...Respondents Mr.Rahul Mehta i/b KMC Legal Venture for the appellant Mr.S.R.Chavanke for the respondent nos.1 and 2 CORAM : A.S.OKA,J. DATE : OCTOBER 13, 2011 P.C.: 1 Heard the learned counsel for appellant and the learned counsel for respondent nos.1 and 2. Notice for final disposal was issued by this Court. 2 The challenge is to the Judgment and Award passed by the Motor Accident Claims Tribunal in a claim petition filed by the respondent nos.1 and 2 under section 166 of the Motor Vehicles Act,1988 (hereinafter referred to as the said Act). 3 The appellant is the insurer of vehicle involved in the accident. A claim was made by the respondent nos.1 and 2 for claiming compensation on account of death of their son Jitendra in a motor accident on 30 th November 2007. The deceased was proceeding from Boisor to MIDC by his motor cycle. A tempo insured with the appellant came from the opposite direction. It is alleged that the tempo was being driven in a 2 fa164 rash and negligent manner. The tempo gave a dash to the motor cycle. As a result, the deceased sustained serious injuries and he was admitted to the hospital where he died after 5 days. 4 The first submission of the learned counsel for the appellant is that the finding of negligence is not supported by the evidence on record. The second submission is that as the claimants are parents, the multiplier will have to be determined on the basis of their respective ages. Therefore, multiplier applied is on the higher side. The third submission is that the income of the deceased taken at Rs. 3,000/- per month by the Tribunal is also on the higher side. 5 The respondents have filed cross objections. The learned counsel for the respondent nos.1 and 2 relied upon the decision of the Apex Court in the case of P.S. Somanathan & Ors VS District Insurance Office & Anr, JT 2011 (2) SC 242. He submitted that the multiplier will have to be determined on the basis of the age of the deceased in view of the said decision. His submission is that the income of Rs. 3,000/- taken is on the lower side. He submitted that the compensation awarded is on the lower side and compensation of Rs.5,00,000/- will have to be awarded. 6 I have carefully considered the submissions. As far as the issue of negligence is concerned, the appellant has not examined the driver of the tempo. The learned Trial Judge has relied upon the true 3 fa164 copies of spot panchnama and F.I.R. On the basis of the said documents and in absence of any evidence of the driver of the alleged offending vehicle, a finding on the issue of negligence has been recorded in favour of the respondent nos.1 and 2. There is no reason to interfere with the said finding. 7 The age of the deceased was of 19 years at the time of accident. There is no specific evidence of any income earned by the deceased. Therefore, considering the fact that the accident is of 2007, the Tribunal has taken the notional income of the deceased at Rs.3,000/- per month. In the year 1994, under section 163-A of the said Act, the yearly notional income of the non earning person was fixed at Rs.15,000/- per annum and therefore, notional income of Rs.3,000/- per month taken as of 2007 is certainly justified. 8 As far as deduction on account of personal expenditure is concerned, as the deceased was a bachelor, in view of the decision of the Apex Court in case of Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another [(2009) 6 SCC 121], one half amount will have to be deducted. Thus, yearly dependency will be one half of a sum of Rs.36,000/- i.e Rs.18,000/-. 9 The real contest is on the issue of multiplier. It is true that the decision of the Apex Court in case of P.S.Somnathan (supra) holds that in case of claims where the claimants are parents, the multiplier has to be taken on the basis of the age 4 fa164 of deceased. However, there is contrary view of the Co-ordinate Bench of the Apex Court in the case of Shakti Devi Vs New India Insurance Co Ltd & Anr, JT 2010(12) SC 106. This issue came up for consideration before this Court in First Appeal no. 828 of 2011 on 8 th July 2011. This Court has considered both the decisions of the Apex Court. In paragraphs 7 and 8, this Court has held thus : 7. As far as the multiplier is concerned, law has been laid down by the Apex Court in the case Sarla Verma (Smt) & Ors Vs Delhi Transport Corporation & Anr., JT 2009 (6) SC 495. The Apex Court held that where the deceased was a bachelor and the claimants are the parents, 50% deduction will have to be made from the income on account of personal expenditure of the deceased and thus, for the purpose of calculation, the monthly income in the present case will have to be taken at Rs.1500/- per month. The Tribunal has committed an error to that extent by making deduction of only 1/3rd of the salary. As far as multiplier is concerned, the respective ages of the first and second respondents have been disclosed as 40 and 45 years respectively in the year 2007, so their average age is between 40 and 45. In the case of Shakti Devi (Supra), the issue arose as to whether the multiplier should be determined on the basis of the respective ages of the parents or on the basis of the age of the deceased. 5 fa164 It will be relevant to note what is held by the Apex Court in paragraph 12 of the judgment. The Apex Court considered the case of Sarla Verma (Supra). The relevant portion of paragraph 12 reads thus: "In a case where the age of the claimant is higher than the age of the deceased, the age of claimant and not the age of the deceased has to be taken into account for the capitalization of the lost dependency. It is so because the choice of multiplier is determined by the age of the deceased or that of the claimant, whichever is higher." 8. In the case of P.S. Somanathan (Supra), in a similar situation,the Apex Court held that the multiplier should be fixed on the basis of the age of the deceased. Thus, there are two conflicting views of the co- ordinate benches of the Hon'ble Apex Court. In view of the law laid down by the Full Bench of this Court in Kamaleshwar Ishwardas Patel Vs. Union of India and others (1995(2) Bom CR 640), It is not necessary to follow the later view. The choice of multiplier has a direct nexus with the dependency. If age of the deceased is 25 years and if he is survived by widow who is younger to him, then there will be justification for applying full multiplier of 18. If the deceased was unmarried and 6 fa164 applicants are parents, there is no logic in applying multiplier 18. Hence, I am inclined to follow the view in the case of Shaktidevi (Supra). (underline supplied) Therefore, in the present case, multiplier will have to be determined on the basis of average age of the respondent nos.1 and 2. The respective ages of the parents of the deceased on the date of accident were 40 and 45. Their average age will be between 40 and 45. Therefore, in the light of the decision of the Apex Court in case of Sarla Verma (supra), multiplier of 14 will have to be applied. Hence, yearly dependency will be Rs.2,52,000/-. To that usual amount of Rs.15,000/- will have to be added on account of funeral expenditure etc. The learned counsel for the respondent nos.1 and 2 pointed out that though the deceased had sustained serious injuries, he survived for five days after the accident. He pointed out that after accident, the deceased was brought from Boisar to Bombay for treatment and on his death, the body was required to carried back to Boisar. Hence, on account of medical expenses and expenses on ambulance, further amount of Rs.15,000/- deserves to be granted. Thus, the total compensation payable will be Rs. 2,82,000/-. The Tribunal has granted interest at the rate of 6% per annum. After 1993, interest rates of nationalised banks were considerably reduced. However, during the last two years, rates of interest of nationalised banks on fixed deposits have been enhanced and therefore, interest deserves 7 fa164 to be granted at the rate of 8% per annum. 10 Hence, I pass the following order : i) Impugned Judgment and Award is modified. Total compensation payable to the respondent nos.1 and 2 will be Rs.2,82,000/- (inclusive of amount of No Fault Liability) which shall carry interest at the rate of 8% per annum from the date of filing of the claim petition till the realisation or deposit of the amount. ii)Appeal and cross objection are allowed on above terms with no order as to costs. iii)A sum of Rs.25,000/- deposited in this Court shall be transferred with the concerned Tribunal. iv)The Tribunal shall pass appropriate order regarding the disbursement and/or investment of the amount. JUDGE