Syed Md.Mahfooz Alam, J.

1. This Miscellaneous Appeal has been preferred by the appellant-Branch Manager, National Insurance Company Limited, Samastipur against the judgment dated 22.12.1998 and award dated 11.1.1999 passed by Sri R. Pandey, District Judge-cum-Motor Vehicle Accident Claims Tribunal, Samastipur in Claim Case No. 24 of 1997 whereby he has been pleased to award compensation to the tune of Rs. 1,64,500.00 with interest at the rate of 12% per annum to the claimants (opposite party nos. 1 to 4) on account of death of Amit Kumar Sinha caused in the accident on 4.5.1997 at about 8.30 A.M.

2. The vehicle involved in the accident was a Tempo bearing registration No. BR-33A 1919 belonging to respondent no. 5 Akhilesh Kumar Sinha and it is said that the offending vehicle was insured under the appellant-National Insurance Company Limited.

3. During course of argument, the learned Advocate appearing on behalf of the appellant Insurance Company submitted that the deceased Amit Kumar Sinha was the own brother of the owner of the vehicle involved in the accident and as such, he cannot occupy the place of third party and as the policy covers the liability of third party only, as such the Tribunal has committed illegality by asking the appellant-Insurance Company to satisfy the entire award. The learned Advocate further argued that while computing the compensation the Tribunal has committed error by choosing multiplier of "16". He submitted that since the deceased was an unmarried boy who died in the motor vehicle accident leaving behind him his father as his legal heir and representative and not brothers and sisters and so, the multiplier should have been taken on the basis of the age of the father of the deceased and considering the age of the father of the victim, the suitable multiplier is "13" in this case and not "16". On the above grounds, the learned Advocate of the appellant prayed to allow the appeal.

4. On the other hand, the learned Advocate of the respondents submitted that the above two grounds taken by the learned Advocate appearing on behalf of the appellant-Insurance Company are not available to him as the Apex Court in the case of National Insurance Company Limited, appellant vs. Nicolletta Rohtagi & Others, respondents (AIR 2002 Supreme Court 3350) has laid down law that the grounds available to the Insurance Company are enumerated in Sec.149(2) of the Motor Vehicles Act and beyond that, the Insurance Company cannot take any defence unless the Company has obtained permission by the Tribunal under the provisions of Sec.170 of the M.V. Act. The learned Advocate of the appellant Insurance Company while arguing that the Insurance Company may also contest the claim on grounds other than the grounds available to the Company under sub-section (2) of Sec.149 of M.V. Act has placed reliance upon the decision reported in (2002)2 Supreme Court Cases 265 (United Insurance Company Limited, appellant vs. Bhushan Sachdeva and Others, respondents). But from perusal of the decision reported in AIR 2002 Supreme Court 3350, it appears that the said decision has been overruled. Thus, I have no hesitation in holding that the Insurance Company cannot take such defence which is not enumerated in sub-section (2) of Sec.149 of M.V. Act unless the Company has obtained leave of the Tribunal as provided under sec. 170 of the M.V. Act. Accordingly, I hold that since the appellant has not taken leave of the court as provided under Sec.170 of M.V. Act, as such the appellant cannot take the defence that since the deceased could not come under the definition of third party as such the appellant Company is not bound to pay compensation. I, therefore, reject the argument of the appellants lawyer in this regard.

5. As regards the quantum of compensation and the multiplier used by the Tribunal, I am to say that the Tribunal should have considered the age of the father of the deceased while fixing the suitable multiplier and as per Second