Friday, 3 April 2020

Whether Insurance Company can file appeal against award passed by claim tribunal without obtaining its permission as per S 170 of Motor vehicle Act?

 The learned Counsel appearing on behalf of the claimants took preliminary objection to the maintainability of the appeal filed by the respondent No. 3, the Insurance Company. Counsel submitted that the owner of the offending vehicle i.e. the insured has not preferred any appeal and the respondent no 3-insurer had not filed any application under section 170 of the M.V. Act, before the Tribunal. He relied upon the judgment of the Hon'ble Apex Court in the cases of (i) "National Insurance Company Limited, Chandigarh Vs. Nicolletta Rohtagi" (MANU/SC/0810/2002 : (2003) 7 SCC 456) : (2002 (4) ALL MR 874 (S.C.); (ii) "Rekha Jain Vs. National Insurance Company Ltd. & Ors." (MANU/SC/0773/2013 : 2013 SAR (Civil) 921) : (2013 ALL SCR 2833); and (iii) "Josphine James Vs. United India Insurance Co. Ltd. & Anr." (MANU/SC/0845/2013 : 2013 SAR (Civil) 1143). Learned Counsel further relied upon the Judgments of the learned single Judge of this Court in the case of (i) "Sharad Ganpat Deshmukh and Ors. Vs. Smt. Kunda Ashok Polade" (MANU/MH/1170/2002 : 2004 (1) T.A.C. 718 (Bom)); and "United India Assurance Co. Ltd. Vs. Milind Dattaram Bandagle" (MANU/MH/0690/2011 : 2011 (7) ALL MR 299). On the contrary, Mr. Afonso, learned Counsel appearing on behalf of the respondent No. 3 submitted that in view of the judgment of the three Judge Bench of Hon'ble Supreme Court in the case of "United India Insurance Company Limited Vs. Shila Datta and others" MANU/SC/1256/2011 : ((2011) 10 SCC 509) : (2012 (1) ALL MR 411 (S.C.)), the respondent No. 3, Insurance Company has right to file appeal against the judgment and award.


18. In the case of "United India Assurance Co. Ltd. Vs. Milind Dattaram Bandagle" MANU/MH/0690/2011 : (2011 (7) ALL MR 299), the facts were similar to the facts of the present case to the extent that the insurer was permitted by the Tribunal to contest on merits despite not following the procedure laid down under Section 170 of the M.V. Act. Relying upon the decisions of the Apex Court in the case of "Shankarayya and another Vs. United India Insurance Company Ltd. and another" reported in MANU/SC/0980/1998 : AIR 1998 SC 2968 and Nicolletta Rohtagi's case, (2002 (4) ALL MR 874 (S.C.)) (supra), the learned single Judge of this Court held that the appeal filed by the insurance company to challenge the impugned judgment and award on the grounds not covered by Section 149(2) of the M.V. Act, for want of leave under section 170 of the M.V. Act, was not maintainable.

19. Therefore, it follows that in the present case, since the respondent No. 3-Insurance Company had not obtained permission as required under Section 170(b) of the M.V. Act, to avail the defence of the insured to contest the case, it could not have challenged the findings, on merits. Hence, the appeal is not maintainable.

IN THE HIGH COURT OF BOMBAY AT GOA

First Appeal No. 13 of 2014

Decided On: 07.05.2014

 Royal Sundaram Alliance Insurance Co. Ltd. Vs. Hanamava Yamanappa Jedi

Hon'ble Judges/Coram:
U.V. Bakre, J.




1. By consent, heard finally at the stage of admission. Mr. Afonso, learned Counsel, argued on behalf of the appellant and Mr. Kurtikar, learned Counsel, argued on behalf of respondents No. 1, 2 and 3.

2. This appeal is directed against the judgment and award dated 07/09/2013 passed by the learned Presiding Officer of the Motor Accident Claims Tribunal at Mapusa (Tribunal, for short) in Claim Petition No. 13 of 2012.

3. The appellant was the respondent No. 3-Insurance Company in the said claim petition; respondents No. 1, 2 and 3 were the claimants; and respondents No. 4 and 5 were the respondents No. 1 and 2. The parties shall hereinafter be referred as per their status in the said Claim Petition.

4. The claimants had filed the said petition under Section 166 of the Motor Vehicles Act, 1988 (M.V. Act, for short) claiming compensation of Rs. 36,00,000/-, on account of death of son of claimant No. 1 and the brother of claimants No. 2 and 3 who died in the motor vehicular accident, which took place on 24/11/2011 at about 13.30 hours at Dhulai, Dharbandora, Sanguem, Goa.

5. Case of the claimants was that on the said date and at the said time, the deceased Yellappa Jedi, one Mr. Hanumant Mane and one mechanic by name Mr. Tippanna were standing by the side of the road going from Dhabal to Dharbandora between two tipper trucks and at that time, the respondent No. 1 drove the tipper truck bearing No. GA-08/U-0076 while proceeding from Dharbandora to Dhabal in a rash and negligent manner and gave dash to one standing truck bearing No. GA-05/T-2563, which went back and deceased Yellappa was crushed between both the standing trucks and sustained grievous injuries which resulted into his death.

6. The claimants contended that the deceased was 30 years old at the time of accident, and was the owner of two tipper trucks used for transporting iron ore from the mines and was earning Rs. 1,83,225/- per year. They further alleged that they incurred expenses of Rs. 25,000/- towards funeral and other miscellaneous expenses and claimed the total compensation of Rs. 36,00,000/-. The respondents No. 1 and 2, who were respectively the driver and owner of the offending vehicle, though were duly served, remained absent and the matter proceeded ex-parte against them. The matter was contested only by the respondent No. 3-Insurance Company which is the appellant now before this Court.

7. The respondent No. 3, in its written statement, denied that the deceased died due to injuries sustained in the accident. It also denied that the deceased was the owner of two tipper trucks and having annual income of Rs. 1,83,225/-. The respondent No. 3 alleged that the amount claimed by the claimants was excessive and exorbitant and that the claimants were not entitled to the compensation as claimed. However, it was admitted that the respondent No. 3 had issued policy in respect of the said tipper truck owned by the respondent No. 2.

8. Issues were framed as per the rival contentions of the parties. The claimants examined the claimant No. 2 namely Kariappa Yamanppa Jedi as AW1 and eye witness namely Tipannam alias Tipuraj Kotargasti as AW2 and closed their evidence. The respondent No. 3 did not lead any evidence in defence.

9. Upon consideration of the entire evidence on record, the Tribunal found that the evidence of AW2, the eye witness stood fully corroborated by the complaint dated 24/11/2011, the copy of which is at Exhibit-26 and also by the panchanama of spot of accident and sketch which are at Exhibit-27 colly. The Tribunal held that the inquest panchanama at Exhibit-28 and memorandum of autopsy at Exhibit-30 proved that the death of Yellappa Jedi took place as a result of the crushing damage to the abdominal vital organs, spine and pelvis by blunt force crushing impact and he died on 24/11/2011 prior to 17.07 hours. Since, the respondent No. 1 who was the driver of the offending truck, did not enter the witness box to explain as to how the accident took place, an adverse inference was drawn against him. It was, thus, held that the claimants had proved that the accident occurred due to the rash and negligent driving of tipper truck by respondent No. 1 and by dashing the same against another tipper truck, he caused the death of Yellappa Jedi. Insofar as the quantum of compensation is concerned, the learned Tribunal mainly relied upon the case of "Smt. Sarla Verma Vs. Delhi Transport Corporation" (MANU/SC/0606/2009 : 2009 (6) SCC 121, (SC)) : (2009 (4) ALL MR 429 (S.C.)). The Tribunal held that as per the judgment passed in "Sarla Verma", (MANU/SC/0606/2009 : 2009 (4) ALL MR 429 (S.C.)) (supra), the multiplier is to be determined on the basis of age of the deceased. The Tribunal observed that the Judgment in the case of "Sarla Verma", (MANU/SC/0606/2009 : 2009 (4) ALL MR 429 (S.C.)) (supra) was followed in the subsequent case of "P.S. Somanathan and others vs. District Insurance Officers and another" (MANU/SC/0121/2011 : 2011 (3) SCC 566) : (2011 ALL SCR 602). As on the date of the accident, the age of the deceased was found to be 30 years and in terms of judgment in "Sarla Verma", (2009 (4) ALL MR 429 (S.C.)) (supra), wherein the multiplier to be adopted for the age group from 26 to 30 has been given as 17, the Tribunal adopted the said multiplier of 17. The Tribunal found that as per the income tax returns at Exhibit-33 for the Assessment Year 2011-2012 and filed on 10/11/2011 that is just before the accident on 24/11/2011 the gross total income of the deceased was Rs. 1,83,225/- and he was not in the taxable limit. The Tribunal, therefore, held that the deceased was having total annual income of Rs. 1,83,225/- prior to his death. Following the judgment in the case of "Sarla Verma", (MANU/SC/0606/2009 : 2009 (4) ALL MR 429 (S.C.)) (supra), since the deceased was a bachelor, the learned Tribunal deducted 50% of Rs. 1,83,225/- as personal living expenses and held that his contribution towards his family was Rs. 91,612/-. However, relying upon the judgment of the Hon'ble Supreme Court in the case of "Santosh Devi Vs. National Insurance Co. Ltd." MANU/SC/0322/2012 : (2012 (3) TAC 1 (SC)) : (2012 ALL SCR 1292), since the deceased was 30 years of age at the time of accident and being self employed, the Tribunal held that the claimants were entitled to 50% addition to the income of deceased towards future prospects. Adding 50% of Rs. 91,612/- that is Rs. 45,806/- to the total annual contribution of Rs. 91,612/-, to the family, the learned Tribunal held that multiplicand works out to Rs. 1,37,418/-. Multiplying the said amount of Rs. 1,37,418/- by the multiplier of 17, the Tribunal held that the applicants are entitled to Rs. 23,36,106/-, towards loss of dependency. The amount of Rs. 10,000/- has been granted towards funeral expenses. Thus, the total compensation awarded to the claimants is Rs. 23,46,106/- and from that the amount of Rs. 50,000/- awarded under Section 140 of the M.V. Act towards 'no fault liability' on 06/02/2013 has been deducted and the claimants have been held to be entitled to receive the balance amount of Rs. 22,96,106/- which has been rounded up to Rs. 22,96,100/-. The claimant No. 1 being the mother has been held to be entitled to 50% of the compensation and the claimants No. 2 and 3 being the brother and sister of the deceased are held to be entitled to 25% each of the compensation. The compensation has been ordered to be paid jointly and severally by the respondents No. 2 and 3 along with interest @ 9% per annum from the date of registration of the Claim Petition till the date of final payment and costs.

10. Respondents No. 1 and 2 that is the driver and owner of the said offending vehicle have not challenged the judgment and award. Since it is the responsibility of respondent No. 3 to indemnify the respondent No. 2, the absence of the respondents No. 1 and 2, in this appeal makes no difference, as even otherwise they were ex-parte before the Tribunal.

11. The learned Counsel appearing on behalf of the claimants took preliminary objection to the maintainability of the appeal filed by the respondent No. 3, the Insurance Company. Counsel submitted that the owner of the offending vehicle i.e. the insured has not preferred any appeal and the respondent no 3-insurer had not filed any application under section 170 of the M.V. Act, before the Tribunal. He relied upon the judgment of the Hon'ble Apex Court in the cases of (i) "National Insurance Company Limited, Chandigarh Vs. Nicolletta Rohtagi" (MANU/SC/0810/2002 : (2003) 7 SCC 456) : (2002 (4) ALL MR 874 (S.C.); (ii) "Rekha Jain Vs. National Insurance Company Ltd. & Ors." (MANU/SC/0773/2013 : 2013 SAR (Civil) 921) : (2013 ALL SCR 2833); and (iii) "Josphine James Vs. United India Insurance Co. Ltd. & Anr." (MANU/SC/0845/2013 : 2013 SAR (Civil) 1143). Learned Counsel further relied upon the Judgments of the learned single Judge of this Court in the case of (i) "Sharad Ganpat Deshmukh and Ors. Vs. Smt. Kunda Ashok Polade" (MANU/MH/1170/2002 : 2004 (1) T.A.C. 718 (Bom)); and "United India Assurance Co. Ltd. Vs. Milind Dattaram Bandagle" (MANU/MH/0690/2011 : 2011 (7) ALL MR 299). On the contrary, Mr. Afonso, learned Counsel appearing on behalf of the respondent No. 3 submitted that in view of the judgment of the three Judge Bench of Hon'ble Supreme Court in the case of "United India Insurance Company Limited Vs. Shila Datta and others" MANU/SC/1256/2011 : ((2011) 10 SCC 509) : (2012 (1) ALL MR 411 (S.C.)), the respondent No. 3, Insurance Company has right to file appeal against the judgment and award.

12. The challenge to the impugned judgment and award is by insurer and on merits. In the present case the insured i.e. the respondent No. 5 in the present appeal, who is the owner of the offending vehicle, had not contested the claim petition and also has not challenged the judgment and award of the Tribunal. Further, the respondent No. 3-insurer was, impleaded before the Tribunal by the claimants themselves, as party-respondent. It had not filed any application under Section 170(b) of the M.V. Act before the Tribunal, but was permitted to contest the petition on merits. Hence, the first and the foremost question that arises for determination is whether the respondent No. 3 can file an appeal against the judgment and award impugned in this appeal.

13. In the case of "Nicolletta Rohtagi", (2002 (4) ALL MR 874 (S.C.)) (supra), the question for consideration was where an insured has not preferred an appeal under Section 173 of the M.V. Act, against an award given by Tribunal, is it open to the insurer to prefer an appeal against the award by the Tribunal questioning the quantum of compensation, as well as finding as regards the negligence of the offending vehicle. The three Judge Bench of the Hon'ble Supreme Court, by judgment dated 17/09/2002, held that unless the conditions precedent specified in Section 170 of the M.V. Act are satisfied, an insurance company has no right of appeal to challenge the award on merits. However, in a situation where there is a collusion between the claimants and the insured or the insured does not contest the claim and, further, the tribunal does not implead the insurance company to contest the claim in such cases it is open to an insurer to seek permission of the tribunal to contest the claim on the ground available to the insured or to a person against whom a claim has been made. If permission is granted and the insurer is allowed to contest the claim on merits in that case it is open to the insurer to file an appeal against an award on merits, if aggrieved. The correctness of the decision in the case of "Nicolletta Rohtagi", (2002 (4) ALL MR 874 (S.C.)) (supra) is pending consideration before the Apex Court in a large number of cases.

14. A three-judge Bench of the Hon'ble Supreme Court, subsequently, in the case of "Shila Datta", (2012 (1) ALL MR 411 (S.C.)) (supra), vide judgment dated 13/10/2011, framed the following questions for consideration:

i) Whether the insurer can contest a motor accident claim on merits, in particular, in regard to the quantum, in addition to the grounds mentioned in Section 149(2) of the Act for avoiding liability under the policy of insurance?

ii) Whether an insurer can prefer an appeal under Section 173 of the Motor Vehicles Act, 1988, against an award of the Motor Accidents Claims Tribunal, questioning the quantum of compensation awarded?

The Hon'ble Apex Court held that when an Insurer is impleaded as a party respondent to the Claim Petition as contrasted from merely being a noticee under Section 149(2) of the Act, its rights are significantly different. The M.V. Act does not require the claimants to implead the insurer as a party-respondent. But if the claimants choose to implead the insurer as a party, not being a noticee under Section 149(2), the insurer can urge all grounds and not necessarily the limited grounds mentioned in Section 149(2) of the Act. If the insurer is already a respondent (having been impleaded as a party-respondent), it need not seek the permission of the Tribunal under Section 170 of the M.V. Act to raise grounds other than those mentioned in Section 149(2) of the Act. It is further observed that if the Insurer is only a noticee and not a party-respondent, having regard to the decision in "Nicolletta Rohatgi", it can defend the claim only on the grounds mentioned in Section 149(2) and not any grounds relating to merits available to the insured-respondent. The points (i) and (ii), as above, have therefore, been held in favour of the insurer.

15. In the case of "Rekha Jain", (MANU/SC/0773/2013 : 2013 ALL SCR 2833) (supra), the insurer was impleaded, before the Tribunal, as a party-respondent. A Division Bench of the Apex Court, vide judgment dated 01/08/2013, by relying upon the judgment in the case of "Nicolletta Rohtagi", (2002 (4) ALL MR 874 (S.C.)) (supra), held that the Insurance Company could not have challenged the finding without obtaining permission as required under Section 170(b) of the M.V. Act, to avail the defence of the insured to contest the case. Further, in the case of "Josphine James" (supra), also, the insurer was impleaded before the Tribunal as a party-respondent. A Division bench of the Hon'ble supreme Court vide judgment dated 14/08/2013, considered the judgments in the case of "Nicolletta Rohtagi", (2002 (4) ALL MR 874 (S.C.)) (supra) as well as "Shila Datta and others", (2012 (1) ALL MR 411 (S.C.)) (supra) and held thus:

8. Aggrieved by the impugned judgment and award passed by the High Court in MAC Appeal No. 433/2005 and the review petition, the present appeal is filed by the appellant urging certain grounds and assailing the impugned judgment in allowing the appeal of the Insurance Company without following the law laid down by this Court in Nicolletta Rohtagi's case (supra) and instead, placing reliance upon the Bhushan Sachdeva's case (supra). Nicolletta Rohtagi's case was exhaustively discussed by a three judge bench in the case of United India Insurance Company Vs. Shila Datta. Though the Court has expressed its reservations against the correctness of the legal position in Nicolletta Rohtagi decision on various aspects, the same has been referred to higher bench and has not been overruled as yet. Hence, the ratio of Nicolletta Rohtagi's case will be still applicable in the present case. The appellant claimed that interference by the High Court with the quantum of compensation awarded by the Tribunal in favour of appellant and considerably reducing the same by modifying the judgment of the Tribunal is vitiated in law. Therefore, the impugned judgments and awards are liable to be set aside.
16. The above decision of the Division Bench of the Hon'ble Supreme Court in the case of "Josephine James" is binding on this court, because the decision of the larger Bench of the supreme court in the cases of "Nicolletta Rohtagi" as well as "Shila Datta" have been considered and interpreted by it. It is therefore evident that the ratio of Nicolletta Rohtagi's case, (2002 (4) ALL MR 874 (S.C.)) (supra) is still applicable to the present case.

17. In the case of "Sharad Ganpat Deshmukh and Ors. Vs. Smt. Kunda Ashok Polade" (MANU/MH/1170/2002 : 2004 (1) T.A.C. 718 (Bom)), a learned Single Judge of this Court has held thus:

11. Mr. Chaphekar then contended that Gobald's case was decided by a Bench of three judges and the case of 'Helen Rebello' was decided by a Bench of two judges. He therefore, urged that the principle in the case of Gobald's case must be followed in preference over what is stated in smaller Bench decision. It is true that when there are two decisions of the Apex court on a point the decision of the larger Bench must be followed in preference to the decision of a smaller bench though the judgment of a smaller Bench is rendered later in time. Where however, the decision of a larger Bench of the supreme court is considered and interpreted in particular way by a subsequent smaller Bench of the Supreme Court then the interpretation of the judgment of the larger Bench made by the smaller Bench is binding on all subordinate Courts including High Court. The High Court is not entitled to say that the interpretation of the large Bench judgment of the supreme Court made by the smaller Bench is a misinterpretation and not binding on it.
18. In the case of "United India Assurance Co. Ltd. Vs. Milind Dattaram Bandagle" MANU/MH/0690/2011 : (2011 (7) ALL MR 299), the facts were similar to the facts of the present case to the extent that the insurer was permitted by the Tribunal to contest on merits despite not following the procedure laid down under Section 170 of the M.V. Act. Relying upon the decisions of the Apex Court in the case of "Shankarayya and another Vs. United India Insurance Company Ltd. and another" reported in MANU/SC/0980/1998 : AIR 1998 SC 2968 and Nicolletta Rohtagi's case, (2002 (4) ALL MR 874 (S.C.)) (supra), the learned single Judge of this Court held that the appeal filed by the insurance company to challenge the impugned judgment and award on the grounds not covered by Section 149(2) of the M.V. Act, for want of leave under section 170 of the M.V. Act, was not maintainable.

19. Therefore, it follows that in the present case, since the respondent No. 3-Insurance Company had not obtained permission as required under Section 170(b) of the M.V. Act, to avail the defence of the insured to contest the case, it could not have challenged the findings, on merits. Hence, the appeal is not maintainable.

20. Without prejudice to the above, I shall deal with the question whether the accident had taken place due to the rash and negligent driving of the truck bearing No. GA-08/U-0076 by the respondent No. 1.

21. AW2, Mr. Tipanna, was an eye witness to the accident. He deposed that on 24/11/2011 at 13.30 hours, the deceased, Yallappa Jedi, one Hanumant Mane and he were standing by the road side on the road from Dhabal to Dharbandora and in between two standing tipper trucks bearing Nos. GA-05/T-2563 and GA-04/T-1763. He deposed that the tipper truck bearing No. GA-04/T-1763 had broken down and he was called to repair the said tipper truck and while they were busy in repairing the truck, the driver of the tipper truck bearing No. GA-08/U-0076, while proceeding from Dharbandora to Dhabal side, drove the said truck in rash and negligent manner and in fast speed and came in wrong direction and gave a dash to the standing truck bearing No. GA-08/T-2563 due to which this truck went back and Hanumant Mane, Yallappa Jedi and he himself were crushed between the two tipper trucks bearing Nos. GA-08/T-2563 and GA-04/T-1763. According to AW2, Hanumant Mane and Yellappa Jedi sustained serious injuries whereas he escaped with minor injuries. AW2 deposed that respondent No. 1, the driver of tipper truck No. GA-08/U-0076, fled away from the accident spot. AW2 was not shaken in the cross-examination. The police had recorded his statement in connection with the accident and it is seen that there are no material contradictions brought forth in the cross-examination.

22. The deposition of AW2 supports the complaint lodged by Head Constable Dilip V. Sinari at Ponda Police Station on 24/11/2011, a copy of which is at Exhibit-26. In this complaint, presence of AW2 alongwith Hanumant Mane and the deceased is specifically mentioned. A perusal of the panchanama of the scene of accident and the sketch which are at Exhibit 27-colly also reveals that the same are consistent with the deposition of the eye witness namely AW2. It is pertinent to note that respondent No. 1 who was the driver of the offending truck did not enter the witness box to explain as to how the accident took place due to which an adverse interference has been rightly drawn against him, by the Tribunal. In the circumstances above, it was duly proved that the accident occurred due to rash and negligent driving of the tipper truck by respondent No. 1. The inquest panchanama which is at Exhibit-28 and the memorandum of autopsy which is at Exhibit-30 read with the evidence of AW2 proves that the death of the deceased Yellappa Jedi was direct consequence of the said accident caused by respondent No. 1.

23. Without prejudice to the fact that the appeal is not maintainable, the next question that arises for determination is whether the compensation awarded by the learned Tribunal is unreasonable and excessive?

24. AW1 Mr. Kariappa Jedi, who is the brother of the deceased has produced on record the income tax returns of the deceased for the assessment year 2011-2012 filed on 11/10/2011 that is just before the date of accident which took place on 24/11/2011, as Exhibit 33-Colly. These income tax returns show that the gross total income tax of the deceased was Rs. 1,83,225/- prior to his death. The deceased was the owner of two tipper trucks which were used for transporting iron ore from mine. With such business, the deceased can certainly be said to be earning the said amount of Rs. 1,83,225/- per year. As the deceased was a bachelor, in terms of the judgment in the case of "Sarla Verma", (MANU/SC/0606/2009 : 2009 (4) ALL MR 429 (S.C.)) (supra), the learned Tribunal had deducted 50% of the gross total income towards personal living expenses and the balance of Rs. 91,612/- was held to be the contribution towards family. In fact deduction of 50% is not compulsory. It depends upon the facts and circumstances of each case. The learned Tribunal has then added 50% to his income since the deceased was self employed and was below 30 years, towards future prospects. For that the learned tribunal relied upon the case of "Santosh Devi Vs. National Insurance Co. Ltd." MANU/SC/0322/2012 : (2012 (3) TAC 1 (SC)) : (2012 ALL SCR 1292). By addition of said 50% to the amount of Rs. 91,612/-, the multiplicand became Rs. 1,37,418/-.

25. In the case of "Sarla Verma", (MANU/SC/0606/2009 : 2009 (4) ALL MR 429 (S.C.)) (supra), the multiplier to be used for the age group of 26 to 30 is mentioned as 17. It is the contention of Mr. Afonso, learned Counsel appearing for respondent No. 3 that in the present claim petition, the age of the claimant is relevant and not the age of the deceased. He relied upon the case of "Kerala SRTC Vs. Susamma Thomas" (MANU/SC/0389/1994 : (1994) 2 SCC 176) : (2012 ALL SCR (O.C.C.) 71) wherein it was held that the choice of multiplier is determined by the age of the deceased or that of the claimants whichever is higher. Counsel also relied upon the judgment of the Apex Court in the case of "New India Assurance Company Vs. Shanti Pathak (Smt.) and others" (MANU/SC/7776/2007 : (2007) 10 SCC 1) : (2007 (5) ALL MR 423 (S.C.)), wherein the claimants were the parents of the deceased and the mother was 65 years old and the father was more than that. The deceased was only 25 years old. The Tribunal had applied the multiplier of 17, based on the age of the deceased. The Apex Court held that it would be appropriate to take the multiplier of 5 considering the fact that the mother of the deceased was 65 years old at the time of the accident and the father was more than 65 years old. Learned Counsel further relied upon the judgment of the Hon'ble Supreme Court in the case of "National Insurance Company Limited Vs. Shyam Singh and others" (MANU/SC/0720/2011 : (2011) 7 SCC 65) : (2011 ALL SCR 1829), wherein the deceased was 19 years old and the parents were respectively 56 and 55 years old. It was held that the Tribunal rightfully applied multiplier of 8 by taking average age of parents of deceased. He therefore, submitted that since the age of claimant No. 1 was 47 years, the multiplier to be used ought to have been 13 years, in view of the judgment in the case of "Sarla Verma", (MANU/SC/0606/2009 : 2009 (4) ALL MR 429 (S.C.)) (supra). I am unable to agree with the said submission of learned Counsel for the respondent No. 3 since, in the case of "Sarla Verma", ((MANU/SC/0606/2009 : 2009 (4) ALL MR 429 (S.C.)) (supra), it is specifically held that it is the age of the deceased which is relevant. The judgment of the Hon'ble Apex Court in the case of "Sarla Verma", ((MANU/SC/0606/2009 : 2009 (4) ALL MR 429 (S.C.)) (supra), was subsequently followed in the case of "P. S. Somanathan", (2011 ALL SCR 602) (supra). In the present case, though the claimant No. 1 was 47 years old, the claimant No. 2 the brother of the deceased was only 28 years old and the claimant No. 3 who is the sister of the deceased was only 23 years old and both were dependent on the deceased.

26. In the circumstances above, the learned Tribunal cannot be faulted for having applied the multiplier of 17 years in the present case. By multiplying Rs. 1,37,418/- by 17, towards loss of dependency, the claimants have been awarded the amount of Rs. 23,36,106/- and towards funeral expenses, they have been awarded Rs. 10,000/-. Thus, the total compensation awarded to the claimant worked out to Rs. 23,46,106/- from which the amount that was already paid under Section 140 of the M.V. Act which is Rs. 50,000/- has been deducted and the claimants have been held to be entitled to balance amount of Rs. 22,96,106/- which has been rounded up to Rs. 22,96,100/-. The compensation awarded to the applicants, in my considered view is just, reasonable and does not call for any interference. Besides the above, mainly, the appeal is not maintainable. In view of the discussion supra, I find that there is no merit in the present appeal. Hence, the appeal is dismissed, however, with no order as to costs.


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