ash 1 fa-1428.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO. 1428 OF 2011 ICICI Lombard General Insurance Company Limited. .. Appellant. Vs Dundappa Rama Bolegevi alias Belgavi and Others. .. Respondents ­­ Shri Rahul Mehta i/by KMC Legal Venture for the Appellant. Shri S.G. Thorat for Respondent Nos. 1 to 3. Shri P.P.Jadhav for Respondent No.4. ­­ CORAM ; A.S. OKA, J DATED : 26TH AUGUST, 2011 ORAL JUDGMENT : 1. Heard learned counsel appearing for the Appellant and the learned counsel appearing for the 1st to 3rd Respondents as well as the 4th Respondent. 2. Only issue agitated in this Appeal by the Appellant/Insurer is regarding quantum of the compensation. A preliminary objection was raised by the learned counsel appearing for the 1st to 3rd Respondents that the leave under Section 170 of the Motor Vehicles Act, 1988 ( hereinafter referred to as “the said Act”) has not been granted. The learned counsel appearing for the Appellant has invited the attention of the Court to the statement in the Memorandum of Appeal ash 2 fa-1428.11 that the leave has been granted. 3. The Appeal arises out of the Award made in a Claim Petition filed by the 1st to 3rd Respondents under Section 166 of the said Act. The 1st and 2nd Respondents (1st and 2nd Claimants) are the parents of the deceased Ananda who died in the motor accident. The appellant is the Insurer of the offending vehicle. The Learned Member of the Tribunal has taken Rs.3,000/­ per month as the income of the deceased. One half of the amount has been deducted on account of personal expenditure. Considering the age of the deceased, the multiplier of 18 has been applied and the compensation of Rs. 3,57,000/­ has been granted with interest at the rate of 8% per annum. 4. The submission of the learned counsel appearing for the Appellant is that as the Claimants are the parents of the deceased who was unmarried, the multiplier will have to be determined on the basis of the ages of the 1st and 2nd Respondents. Learned counsel appearing for the Appellant relied upon a decision of the Apex Court in the case of Shakti Devi v New India Insurance Co. Ltd. & Anr., (JT 2010(12) SC 106). The learned counsel appearing for the 1st to 3rd Respondents relied upon another decision of the Co­ordinate Bench of the Apex Court in the case of P.S. Somanathan & Others v. District Insurance Officer and Another, (2011 ACJ 737). He submitted that the decision of ash 3 fa-1428.11 the Apex Court in the case of P.S. Somanathan (supra) is latter in point of time which expressly holds that even when the Claimants are the parents of the deceased, the multiplier will have to be adopted on the basis of the age of the deceased as laid down in the case of Sarla Verma & Others v. Delhi Transport Corporation and Another, (2009 ACJ 1298). His submission is that the principles governing the applicability of the multiplier have been laid down in the said subsequent decision of the Apex Court which will have to be followed by this Court. 5. I have carefully considered the submissions. There is a clear conflict in the view taken by the two Co­ordinate Benches of the Apex Court in the case of Shakti Devi (supra) and P.S. Somanathan (supra). In First Appeal No.828 of 2011 ( Oriental Insurance Company v. Umaji etc ) by a judgment and order dated 8th July, 2011, this Court has dealt with the very issue. Paragraphs 7 and 8 of the said judgment read 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 ash 4 fa-1428.11 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. 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 co­ordinate 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 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). ” 6. This Court has followed the decision of the Full Bench which holds that in the event there is a conflict in the law laid down by the two Co­ordinate Benches of the Apex Court, it is not necessary to follow the latest one and the High Court can always follow the view which in its opinion is better one. This Court has already held that the applicability of the appropriate multiplier has a direct nexus with the ash 5 fa-1428.11 dependency. Moreover, the compensation granted under the said Act has to be just and fair and it cannot be a bonanza. 7. Thus, the Tribunal has committed an error by applying the multiplier 18 on the basis of the age of the victim. The average age of the parents was 50 years and therefore, in terms of the decision of the Apex Court in the case of Sarla Verma (supra), the multiplier of 13 will have to be adopted on the basis of the average age of the parents. Thus, the compensation payable will be Rs.2,34,000/­ ( Rs.18,000/­ x 13 ). To the said amount, usual amount of Rs.15,000/­ will have to be added towards funeral expenditure etc. Hence, the compensation amount will have to be fixed at Rs.2,49,000/­ instead of Rs.3,57,000/­ granted by the Tribunal. To that extent, the impugned Judgment and Award will have to be modified and hence, I pass the following order: ORDER: (i) Clause (2) of the operative part of the impugned Judgment and Award is modified and the total compensation amount is reduced from Rs.3,57,000/­ to Rs.2,49,000/­; (ii) Rest of the impugned Judgment and Award stands confirmed; ash 6 fa-1428.11 (iii) The Appeal is partly allowed on above terms with no orders as to costs. (iv) A sum of Rs.25,000/­ deposited by the Appellant in this Court shall be transferred to the concerned Tribunal with interest, if any, accrued thereon; (v) Civil Application No.1433 of 2011 does not survive and the same is disposed of. ( A.S. OKA, J )