D.G. Karnik, J.
1. By consent, the appeal is taken up for final hearing.
2. On 28th May, 1990, at about 3.30 p.m. Ashok Polade, an employee of the Maharashtra State Electricity Board (for short M.S.E.B. was driving the staff car bearing Registration number MTW 9347 carrying other employees of the M.S.E.B. and was proceeding to Vaitarna from Nasik Road. Near the village Vilholi, a truck bearing Registration No. MWN 2117 belonging to the appellant No. 1 and being driven by the appellant No. 2 and insured with the appellant No. 3 came in the opposite direction and there was a collision between the truck and the staff car resulting in the death of Ashok Polade, the driver of the car. His widow, children and the father who are the respondents herein filed a petition bearing M.A.C. Petition No. 259 of 1990 claiming compensation from the appellants. Mr. Ramchandra Chitnis and Suresh Badgujar who were the occupants of the staff car and who were also injured filed two separate petitions for compensation with which we are not concerned in this appeal. In Petition No. 259 of 1990, the heirs of Ashok Polade claimed that the deceased was aged 41 years and drawing salary of Rs. 5,000/- out of which Rs. 4,000/- he was spending on the maintenance of the respondents. The respondents were totally dependent on the income of the deceased Ashok and claimed that they suffered total loss of Rs. 10,20,000/-. However, due to incapacity to pay Court-fee stamp, the respondents restricted their claim to Rs. 4,00,000/- and interest.
3. The Motor Accident Claims Tribunal (for short the Tribunal) after considering the salary of Ashok and his personal expenditure held that Ashok must be contributing Rs. 2,000/- per month (i.e. Rs. 24,000/- per year) for the family i.e. for the respondents. By applying the multiplier of 17 years, the Tribunal held that the total loss to the respondents was Rs. 4,08,000/-. After awarding a further sum of Rs. 12,000/- for loss of love and affection, the Tribunal came to the conclusion that the total loss was Rs. 4,20,000/-. These computations are not disputed in this appeal by learned Counsel for the appellants. On the question of negligence, the Tribunal held that the driver of the truck i.e. the appellant No. 2 herein and Ashok the deceased himself were both negligent. On account of the finding of composite negligence, the Tribunal deducted 50% of the amount and awarded compensation of Rs. 2,10,000/- (inclusive of no-fault liability) with interest at the rate of 12% p.a., learned Counsel for the respondents has not challenged the finding of composite (contributory) negligence.
4. M.S.E.B, being the employer of the deceased Ashok paid to the respondents a sum of Rs. 72,548/- as compensation under the Workmen's Compensation Act as the death had occurred during the course of employment of Ashok and while he was on duty and driving the vehicle during the course of his employment. Relying on Section 167 of the Motor Vehicles Act, 1988, Mr. Chaphekar contended that the respondents were entitled to make a claim for compensation either under the Workmen's Compensation Act, 1923 or the Motor Vehicles Act, 1988 but, not both. He contended that the victim was required to elect either of the two remedies. He submitted that since the heirs of the deceased had received compensation of Rs. 72,548/- under the Workmen's Compensation Act, 1923 their claim under the Motor Vehicles Act, 1988 was not maintainable.
5. It is admitted that the respondents who are the heirs of Ashok had not filed any claim before the Commissioner or anybody under the Workmen's Compensation Act, 1923. Wherever there is an employment injury or death, the employer is required by law to deposit such amounts as are awardable under the Schedule to the Workmen's Compensation Act, 1923 with the Commissioner within the stipulated time. In depositing the amount of Rs. 72,548/- with the Commissioner under the Workmen's Compensation Act, 1923, the M.S.E.B. merely complied its statutory obligation under the law. That amount was paid over to the heirs without their making a claim under the Workmen's Compensation Act, 1923. Mere receipt of the amount without any claim being made of the amount deposited by the employer cannot take away the right of the heirs of the deceased to claim compensation under the Motor Vehicles Act, 1988.
6. The object of Section 167 of the Motor Vehicles Act is to prevent the injured or the heirs of the deceased from making two separate claims before two forums and not to bar the remedy of compensation under the Motor Vehicles Act, 1988 altogether. It is notorious that the adjudication of the claim for compensation under the Motor Vehicles Act, 1988 takes several years while compensation under the Workmen's Compensation Act is required to be deposited immediately or soon after the death, though the amount is limited and shall be compared with the compensation awardable under the former. In the hope of a larger compensation to be received under the Motor Vehicles Act, 1988 and that too upon the proof of negligence (except the compensation for no-fault liability under Section 140), the widow and the dependents of the deceased cannot be expected to decline the compensation which is statutorily paid to them without demand under the Workmen's Compensation Act, 1923 and live in penury on death of a bread-winner in the hope of higher compensation. I am fortified in this view by a decision of the Division Bench of Karnataka High Court rendered in Managing Director, Karnataka Power Corporation Ltd. v. Geetha reported in (1987) II ACC 1 : A.I.R. 1989 Karn 104
7. Mr. Chaphekar then contended that the amount of Rs. 72548/- received by the respondents under the Workmen's Compensation Act should be deducted from the amount of Rs. 2,10,000/- awarded by the Tribunal. He relied upon the judgment of the Apex Court in Gobald Motor Service Ltd. v. R.M.K. Veluswami and Ors. reported in 1958 65 A.C.J. 179 That was a case in which a compensation was claimed by the heirs of the deceased under Sections 1 and 2 of the Fatal Accidents Act, 1855. In that case, the Apex Court held that the heirs of the deceased were entitled by way of compensation pecuniary loss suffered by them on account of the death; it was further held that any pecuniary advantage from whatever source which comes to them by reason of death or otherwise must also be taken into consideration.
8. Gobald's case (supra) was recently considered and explained by the Apex Court in the case of Helen C. Rebello and Ors. v. Maharashtra State Road Transport Corporation and Anr. reported in : AIR1998SC3191 . In paragraph 26, the Apex Court observed thus:
This Court in Gobald Motor Service, 1958 65 A.C.J. 179 considering the quantum of damages under Sections 1 and 2 of the Fatal Accidents Act, 1855 referred to the said principle as enunciated in the English decisions, since our provisions under the Act in consideration were similar to Section 9 of the English Fatal Accidents Act, 1846. This Court was neither called upon to consider computing damages under the Motor Vehicles Act nor to consider any form of deductions, whether justified under the Motor Vehicles Act.
(Underlining supplied)
9. In paragraph 27, the Apex Court distinguished the Gobald Motor's Services case thus:
We find that the language of Section 110-B of the 1939 enactment (i.e. Motor Vehicles Act, 1939) is different than what is under Section 1-A of the 1855 Act {i.e. Fatal Accidents Act, 1855)....
The Court further observed:
But, Section 110-B of 1939 empowers the Tribunal to determine the compensation which appears to be just. The words used in Section 110-B are: 'Which appears to be just'. Use of these words widen the scope of determination of compensation which is neither under the Indian Fatal Accidents Act, 1855 nor under the English Fatal Accidents Act, 1846.
10. Thus, the Apex Court distinguished Gobald's Motor Service case and held that there was a deliberate change in the language of the Motor Vehicles Act, 1939 revealing legislative intent conferring wider discretion on the Tribunal and further held that any decision based on the principle applicable to the Fatal Accidents Act would not be applicable while adjudicating compensation under the Motor Vehicles Act (See para 28 of the Apex Court judgment).
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 there 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 larger Bench judgment of the Supreme Court made by the smaller Bench is a misinterpretation and not binding on it.
12. In Helen C. Rebello v. Maharashtra State Road Transport Corporation (supra), the Apex Court has held that the Tribunal while computing the compensation under Section 110-B of the Motor Vehicles Act, 1939 has a wider discretion than what it had under the Fatal Accidents Act, 1855. The provisions of compensation in the Motor Vehicles Act of 1939 as well as Motor Vehicles Act, 1988 are similar and both the Acts use the phrase 'compensation' which appears to be just. Both the Acts contain beneficial provisions conferring monetary compensation to the dependents of the accident victim. In the Motor Vehicles Act, 1939 as it was enacted in the year 1939, there were no provisions of no-fault liability till it was amended in the year 1982 when for the first time, the concept of no-fault liability was introduced under Section 92-A by the amendment. The Motor Vehicles Act, 1988 since beginning contained a beneficial provision of no-fault liability under Section 140. The amount of no-fault liability in case of death was initially restricted to Rs. 25,000/- and was enhanced to Rs. 50,000/-. Though, Rs. 50,000/- in the present circumstances is not enough to compensate the dependents of the victim of an accident considering the socio-economic limitations, at least a beginning has been made in providing some kind of social security to the heirs. In the light of such benevolent approach of the Legislature, the Court ordinarily should not limit the benefits by making from the compensation amount, deductions which are not statutorily provided for. Of course where the compensation awarded or the other pecuniary benefits arising out of death are very large, the Tribunal may, in appropriate cases, take into consideration other benefits/compensation received by the heirs of the deceased. But, there cannot be an exact arithmetical deductions of an exact amount awarded under the Workmen's Compensation Act. The Tribunal should look into the totality of the circumstances while exercising power to determine compensation which appears to be just.
13. Let me look into the totality of the circumstances in the present case. The Tribunal held that the total loss suffered by the heirs on account of death was to the extent of Rs. 4,20,000/-. The Tribunal deducted Rs. 2,10,000/- being the 50% of the amount for contributory negligence of the deceased. In the circumstances, it would be unjust to deduct a further sum of Rs. 72,548/- received as compensation under the Workmen's Compensation Act from the remaining amount of compensation of Rs. 2,10,000/- thereby reducing it by another 1/3rd of already truncated liability. If at all the amount of Rs. 72,548/- or any part thereof is to be deducted or adjusted, I would adjust it towards the amount of Rs. 2,10,000/- deducted for contributory negligence. If at all contributory negligence was committed it was during the course of employment with the M.S.E.B. Hence, the amount of compensation paid by M.S.E.B. under the Workmen's Compensation Act towards this contributory negligence would be adjusted against the deduction of Rs. 2,10,000/- for contributory negligence. In any event, I am not inclined to interfere in the just discretion exercised by the Tribunal in not deducting this sum of Rs. 72,548/- received by the heirs under the Workmen's Compensation Act.
14. Mr. Chaphekar, teamed Counsel for the appellants then urged that the interest awarded at 12% from the date of the petition till the date of payment is too high. He submitted that the interest at the rate of 6% should have been awarded as was awarded by the Courts in the ease of Karnataka State Road Corporation v. Sethuram and Anr. reported in : (1998)8SCC424 and R.D. Hattangadi v. Pest Control (I) Pvt Ltd. reported in : [1995]1SCR75 . In the case of Karnataka State Road Transport Corporation v. R. Sethuram, the Apex Court held that there was no justification on the part of the High Court to enhance the rate of interest from 6% to 12%. This judgment shows that if at all the High Court is to vary the rate of interest awarded by the Tribunal, there should be same justification, This case, therefore, would not help the appellants because, if I were to reduce the rate of interest awarded by the Tribunal, I should have justification where there exists none, In the case of R.D. Hattangadi v. Pest Control (I) Pvt. Ltd., there was no modification of the rate of interest and there is no principle laid down regarding the rate of interest.
15. Under Section 34 of the Code of Civil Procedure, the Court has the discretion regarding the rate of interest which should be awarded pendente lite. The Tribunal has exercised the discretion by awarding rate of 12%. I find no reason to interfere in the discretion. I cannot close my eyes to the reality that if the money is kept in a bank, interest is usually compounded with quarterly rests. The difference between effective or ultimate amount of interest calculated at the rate of 12% simple interest and at the rate of 6% compound interest compounded quarterly, for 12 years would not be very high. In the circumstances, I decline to interfere in the discretion exercised by the Tribunal in awarding simple interest at 12% pendente lite.
16. For these reasons, there is no merit in the appeal and the same is hereby dismissed. In the circumstances of the case, there would be no order as to costs.
Certified copy is expedited.