New India Assurance Co. Ltd. and Others vs Rajani and Others

Budihal R.B., J.—These two appeals are filed challenging the judgment and award dated 15.11.2012 passed by the learned Addl. Senior Civil Judge & Addl. MACT, Ranebennur in M.V.C. No. 397/2009. M.F.A. No. 20675/2013 (MV) is filed by the New India Assurance Co. Ltd., whereas M.F.A. No. 21192/2013 (MV-GEN) is filed by the claimants before the Tribunal seeking enhancement of the compensation amount so also challenging the legality and correctness of the judgment of the Tribunal. Since common questions of law and facts are involved in both the appeals, they are taken together to dispose of them by this common judgment.

Brief facts leading to filing of the claim petition by the respondents-claimants before the Claims Tribunal are that on 27.11.2008 at about 8.45 a.m. deceased Harigopal was watching the work and supervising the work in coal field yard at Grasim Industry, Kumarapattana. While he was so watching, a vehicle bearing registration No. KA-27/7362 came for loading coal. The driver of the said vehicle without following traffic rules and regulations suddenly took the vehicle back side and dashed Harigopal and caused the accident. Due to the accident, Harigopal sustained fatal injuries and died on the spot. The persons, who were gathered at the spot shifted dead body of Harigopal to the Govt. Hospital. The Medical Officer of the said hospital conducted postmortem on the dead body. After completion of all legal formalities, petitioners took dead body of the deceased in a hired taxi and conducted funeral at their native place by spending more than Rs. 30,000/-. Before the date of accident, deceased was hale and healthy. He was working as Manager at Grasim Industries (Coal Section), earning Rs. 45,000/- per month. Due to his demise, petitioners were suffering mentally, economically, they have lost the love and affection of the deceased and also financial assistance. Petitioner No. 1-wife of the deceased lost love and affection and also the life partner in the middle age. Petitioner No. 2 is the son and he lost future settlement in his life. They are on street due to the sudden death of the deceased. The accident occurred solely due to the rash and negligent driving of the driver of the vehicle. The appellant herein is the insurer and the respondent No. 3 herein is the owner of the offending vehicle. Hence, the respondent Nos. 1 and 2 herein (claimants) claimed Rs. 50 lakhs as compensation from the appellant-Insurance Company as well as the owner of the offending vehicle.

The respondent No. 2 Insurance Company before the Tribunal filed its objection statement contending that since the alleged accident has taken place on the private premises, the Police have not chargesheeted driver of the offending vehicle for the offence punishable under Section 279 of IPC since there is no accident on the public road. Hence, the respondent-Insurance Company is not liable to indemnify the respondent No. 1-owner of the vehicle before the Tribunal. The accident took place within the premises of the insured. Admittedly, deceased was employee of the insured and death is in the course of insured''s employment at the time of alleged accident and as per the provisions of Section 147(1) of the M.V. Act, Policy is not required to cover liability in respect of death arising out of and in the course of employment of the employee of a person insured by the policy other than the liability arising under the Workmen''s Compensation Act. As such, the liability of the insurer towards the employees is not covered under the policy. It is also contended that the petitioners have to prove that they are the legal heirs and dependents of the deceased. At the time of the alleged accident, driver of the offending vehicle was not having valid and effective driving licence to drive the same. The owner of the said vehicle has knowingly entrusted the vehicle to the driver. As such respondent No. 1 (owner) has violated the terms and conditions of the policy. Hence, there is no liability on the part of the Insurance Company. The contents of the memorandum of claim petition in paragraph Nos. 3, 4, 5, 6 and 7 with regard to the age of the deceased, his occupation, monthly income, income tax paid, are all denied. Petitioners-claimants will have to be called upon to prove that, before the date of accident he was hale and healthy, working as Manager in Grasim Industries (Coal Section), drawing more than Rs. 35,000/- per month. On the fateful day of the accident he was watching and supervising the work in the coal field yard. The mode of the accident narrated in sub paragraph No. 21 and 22 of the claim petition are not admitted. The accident was not occurred due to the rash and negligent driving of the offending vehicle. Hence, the Insurance Company has sought to dismiss the claim petition.

Respondent No. 1 who was the owner before the Claims Tribunal also filed objection statement contending that the petition averments are false, frivolous, vexatious and they are denied in toto, except which are specifically admitted. Deceased Harigopal was an employee of the respondent No. 1 and he was working in the coal yard section of the Grasim Industries. Petitioners have to prove income of the deceased as alleged by them. The averments made in column No. 13 is denied as false. Petitioners are put to prove regarding spending of more than Rs. 30,000/- towards funeral expenses. Relationship of the claimants with the deceased is to be proved. Compensation claimed at column No. 21 is not only imaginary but it is excessive, baseless and exorbitant one. The driver of the alleged vehicle is having valid and effective licence, all the documents pertaining to the said vehicle are also in force as required under the provisions of law. Therefore, respondent No. 1 is not liable to pay any compensation in view of the contractual liability with respondent No. 2. The alleged spot of accident is in coal yard and other vehicles than the respondent No. 1 were also moving in the said coal yard. Respondent No. 1 never violated any of the terms and conditions of the policy. An amount of Rs. 17,02,512/- is already remitted to the petitioners under the head of Group Personal Accident Policy Claim through cheque No. 038707 dated 05.03.2009. Apart from this, petitioners have also received an amount of Rs. 15,57,759/- as the claim under Nishchiant Scheme through HDFC cheque dated 20.01.2009. Hence, sought to dismiss the claim petition.

On the basis of the pleadings presented by the parties the Tribunal framed the following issues.

"1. Whether the petitioner proves that the deceased sustained injuries in the accident on 23.11.2008 and died as stated in the petition?

Whether the petitioner is entitled for compensation? If so what is the quantum and from whom?

What order or Award?"

Addl. Issues.

"1. Whether the R2 proves that the accident has not taken on the public road?"

On the side of the claimants one witness was examined as P.W. 1 and documents as per Ex. P.1 to Ex. P.9 are got marked. On the side of the respondents R.W. 1 to R.W. 3 were examined and got marked documents as per Ex. R.1 to Ex. R.6.

After considering merits of the case ultimately the Tribunal allowed the claim petition in part and awarded a compensation of Rs. 24,12,628/- with interest at 6% p.a. from the date of petition till realisation holding that respondent Nos. 1 and 2 therein are jointly and severally liable to pay the compensation amount.

Being aggrieved by the judgment and award and also challenging the legality and correctness of the said judgment and award the appellants are before this Court.

We have heard arguments of the learned counsel Sri R.R. Mane, appearing for the appellant-Insurance Company so also the arguments of Sri M.H. Patil, learned counsel appearing for respondent Nos. 1 and 2 (claimants) and the arguments of Sri N.M. Hansi, learned counsel appearing for respondent No. 3 (owner of the offending vehicle).

Learned counsel appearing for the appellant during the course of his arguments submitted that the place where the alleged accident took place is not a public place or public way but it is a private place of a Company. He further submitted that, without permission of the owner or other responsible officers of the said Company, private persons are not permitted to enter into the said premises. Hence, submitted that, in the objection statement at paragraph No. 2 the Insurance Company has specifically contended and raised this point. He submitted that as per Section 147(1)(b) of the M.V. Act there is no liability on the part of the Insurance Company to pay the compensation amount as claimed by the respondent Nos. 1 and 2-claimants.

With regard to the meaning of public place is concerned, learned counsel drawn attention of the Court to Section 2(34) of the M.V. Act and also Sec. 2(24) of the Old M.V. Act, 1939. He submitted that, even according to the said definition it clearly goes to show that the accident alleged to have taken place in the place as mentioned in the petition by the claimants is a private place. Even according to the said definition it will not be a public place and hence there is no liability on the part of the Insurance Company. In this connection he also submitted that, when the FIR was registered against the driver of the said vehicle produced as per Ex. P.1. at the first instance the alleged offence u/S 279 of IPC along with Sec. 304A of IPC was shown. But, after completion of investigation and coming to know that the said place is not a public place while filing charge sheet the I.O. has filed charge sheet against the driver of the said vehicle only for the alleged offence u/S 304-A of IPC. Hence, he submitted that this aspect also clearly goes to show that the said place is a private place and not a public place. He has also referred to the cross-examination of P.W. 1 so also the evidence of R.W. 1 at paragraph No. 6 of the deposition and submitted even the oral evidence of the parties adduced in the case also clearly goes to show that the said place is a private place and not a public place.

He also contended that the deduction to an extent of 50% towards personal expenses of the deceased is in accordance with the judgment of the Apex Court and no illegality has been committed. He also submitted that he filed application in I.A. No. 9 before the Tribunal to summon the owner to furnish details of the salary of the deceased but the said application was wrongly rejected by the Tribunal. Learned counsel also submitted that as the claimants have already received an amount of Rs. 32,60,279/- towards the death claim settlement and as per Section 167 of M.V. Act and Sec. 61 of the E.S.I. Act the petitioners-claimants are not entitled to be granted with the compensation amount under the M.V. Act. Hence, he submitted to allow the appeal and to set aside the judgment and award passed by the Tribunal. In support of his contention learned counsel appearing for the appellant Insurance Company relied upon the following decisions.

"1) Rajammal Vs. Associated Transport Company and Another,

2) Sarla Devi and Others Vs. Jhangi Ram and Others, .

3) Life Insurance Corporation of India Vs. Karthyani and Others, ."

Per contra learned counsel appearing for the respondent No. 3-owner of the offending vehicle during the course of his arguments submitted that the contention of the other side that it is not a public place and it is a private place, is not correct. He submitted that, even if it is a private place but where the public are allowed with certain restrictions and regulations to enter into the said place, is a public place.

In this connection learned counsel also referred to Section 2(34) of the M.V. Act and submitted that the decisions relied upon by the learned counsel for the appellant-Insurance Company are overruled by the larger Bench decisions of the other High Courts and hence the law laid down in the decision relied upon by the learned counsel for the appellant-Insurance Company is not the correct position of law. In this connection learned counsel for respondent No. 3-owner of the offending vehicle, relied upon the following decisions.

"(1) M.K. Bhaumik Vs. Sukura Singh and Others,

(2) Rajan P. Vs. K.J. John and Others,

(3) ACC-II 1998 Bombay 353 (Pandurang Chimaji Agala v. New India Life Insurance Company);

(4) Oriental Fire and General Insurance Co. Ltd. Vs. Raghunath Muduli and Others,

(5) United India Insurance Co. Ltd. Vs. Parvathi Devi and Others, and

(6) Forbes Forbes Campbel and Co. Ltd. and another Vs. Vilasrao Deshmukh The Hon''ble Minister for Revenue and Transport, State of Maharashtra and others, "

Hence learned counsel submitted that, in view of the decisions as laid down by the various Courts and the larger Benches which is the correct position of law and they go to show that the place where the incident has taken place in the case on hand is a public place. Hence, submitted that the appeal preferred by the Insurance Company be dismissed.

Learned counsel appearing for the claimants submitted that, with regard to deduction of 50% towards personal expenses of the deceased is not correct and the proper deduction is 1/3rd. In support of his contention he relied upon the decision reported in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, paragraph No. 30. He also contended that towards loss of estate only Rs. 10,000/- was awarded by the Tribunal which is on the lower side. The Tribunal has not awarded any amount towards consortium and even under the other heads the compensation amount awarded by the Tribunal is on the lower side. Hence, submitted that the appeal preferred by the Insurance Company be dismissed.

In reply to the submission made by the learned counsel for the respondents, learned counsel for the appellant-Insurance Company submitted that the son of the deceased is not the dependant and hence 50% deduction adopted by the Tribunal is correct. He drawn the attention of the Court to paragraph No. 14 of the judgment of the Tribunal.

We have perused the pleadings of both the sides and oral and documentary evidence adduced before the Tribunal so also the judgment and award passed by the Tribunal.

Regarding the first and foremost contention and the controversy between the parties are that whether the place of accident in question is a public place or not. Let us examine the same with reference to materials placed on record and also with reference to the decisions relied upon by the counsel on both the sides regarding the legal position.

We have perused Section 2(34) of the M.V. Act, 1988 with regard to the definition of public place which reads as under:

"(34) "public place" means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage;"

In the decision reported in Rajammal Vs. Associated Transport Company and Another, of the Madras High Court relied upon by the learned counsel appearing for the Insurance Company at clause (e) and (f) it is observed thus:

"(e) Motor Vehicles Act, 1939, section 2(24)-public place-What is-The criteria is whether the public have a right of access to the place, and not merely that the public have access; (f) Motor Vehicles Act, 1939, section 95(1)(b) and 96(2)-Public place-Accident took place inside the precincts of a factory-Public had no right of access-Whether the insurance company could be held liable-Held: no-whether Insurance Company can take up the defence that it is not liable because the place where the accident took place was not a public place-Held: yes."

Paragraph No. 14 and 15 of the aforesaid decision reads as under:

"14. I now proceed to the next question, namely, whether the place where the accident occurred was a public place within the meaning of Section 2 (24) of the Act, and if it was not a public place, whether the second respondent will not be liable. The definition in Section 2 (24) has already been extracted. It is clear from the definition that the criterion is whether the public have a right of access to the place; and it will not be a public place merely, if as a matter of fact, the public have access. Applying the test to the evidence in this case, it is clear that the place is not a public place within the meaning of the definition in Section 2 (24) . The evidence of P.W. 5 is:

"My organisation is in Huzur Gardens, Sembium, which is 93 acres in extent. There are 8 or 9 companies belonging to Amalgamations Ltd. Madhavaram High Road is the main road for our compound. The lorry travelled 2. 1/2 furlongs after branching from Madhavaram High Road. The lorry was going to Shardlow (India) Ltd. It had to go for 100 yards, take a turn to the right and go one furlong to reach Shardlows. I am employee of the company from 1949. There are two gates in Madhavaram High Board. There are watchmen at both the gates. All lorries that came in have got to be permitted to go in."

Thus the evidence is that Huzur Gardens is a private property and there are eight or nine companies there belonging to Amalgamations Ltd. by whom the road is kept, that there are watchmen at two gates facing Madhavaram High Road and that lorries have got to get the permission before they could enter. Though nothing is said about the members of the public requiring permission, it is a reasonable inference from the evidence that the members of the public also require permission before they could enter. Thus, on the evidence, it is clear that the public have no right as such to enter the premises."

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In another decision reported in Sarla Devi and Others Vs. Jhangi Ram and Others, of the High Court of Judicature at Allahabad their Lordships held as under:

"Motor Vehicles Act, 1939, sections 110-A and 110-AA and Workmen''s Compensation Act, 1923-Option of forum-Claim for compensation-Death of driver of bus when it collided with a truck-Dependants of the deceased filed a claim and got compensation under Workmen''s Compensation Act-Dependants also filed claim petition under section 110-A of the Motor Vehicles Act-Whether this claim petition maintainable-Held: no; bar under section 110-AA would operate. ( Smt. Kalawati Vs. Balwant Singh and Another, (Allahabad) followed)."

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We have perused the decisions relied upon by the learned counsel appearing for the owner of the offending vehicle-respondent No. 1 in M.F.A. No. 21192/2013. In the decision of Orissa High Court reported in M.K. Bhaumik Vs. Sukura Singh and Others, it is held as under:

"Motor Vehicles Act (59 of 1988), Ss. 2(34) , 149 -Public place-What is-All places where members of public have an access whether as of right or controlled-Would be covered under definition of ''public place''-Accident took place on land abutting public road to which public had easy access-Land does not cease to be a public place merely because it was recorded in name of private individual-Land where accident took place was public place-Insurer liable to pay compensation.

Words and Phrases - Expressions ''Right of access'' and "access as of right"-Disanction.

The definition of ''public place'' under M.V. Act, is, wide enough to include any place which members of public use and to which they have a right of access. The rights of access may be permissive, limited, restricted or regulated by oral or written permission, by tickets, passes or badges or on payment of fee. The use may be restricted generally or to particular purpose or purposes. What is necessary is that place must be accessible to members of public and be available for their use, enjoyment, avocation or other purpose."

So also in paragraph No. 8 of the said decision it is observed as under:

"8. The definition of ''public place'' under the M.V. Act is, therefore, wide enough to include any place which members of public use and to which they have a right of access. The right of access may be permissive, limited, restricted or regulated by oral or written permission, by tickets, passes or badges or on payment of fee. The use may be restricted generally or to particular purpose or purposes. What is necessary is that the place must be accessible to the members of public and be available for their use, enjoyment, avocation or other purpose."

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In another decision reported in Rajan P. Vs. K.J. John and Others, ''public place'' has been construed as under:

"(A) Motor Vehicles Act (59 of 1988), Ss. 147 , 2(34) - Liability of insurer - Accident alleged to have occurred in private premise namely a house compound-Insurance policy covered accident occurring in ''public places''-Private places where restricted access is provided to limited class of public for specific purpose will be treated as ''public places''-Truck allowed in private compound of house for unloading goods for purpose of construction wherein access was provided to employee or crew members of truck for carrying out work-Said private compound of house would also be considered as public place for purpose of S. 2(34) of Act-Insurer liable to pay compensation."

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In another decision of the Bombay High Court in Pandurang Chimaji Agale Vs. New India Life Insurance Company Ltd., the concept of ''public place'' is discussed.

We have perused the said decision so also the judgment of the Orissa High Court in Oriental Fire and General Insurance Co. Ltd. Vs. Raghunath Muduli and Others, . The judgment of the Madras High Court in the case of United India Insurance Co. Ltd. Vs. Parvathi Devi and Others, . Bombay High Court in the case of Forbes Forbes Campbel and Co. Ltd. and another Vs. Vilasrao Deshmukh The Hon''ble Minister for Revenue and Transport, State of Maharashtra and others, .

We have also perused the oral evidence of P.W. 1 in the cross-examination by learned counsel for the respondent No. 2 before the Tribunal. He deposed and admitted as true that Grasim Factory is a private company. He also admitted as true that in the said factory without the permission the public will go out and will not come inside.

In the evidence of R.W. 1 in the examination of chief by way of affidavit at paragraph No. 6 it is stated that the alleged spot of accident is not a prohibited or restricted area or a coal yard as the public have also right of access with permission and as such the said place in the coal yard is not a private place. In the cross-examination by the learned counsel for the respondent No. 2-Insurance Company he admitted that Grasim Factory is a private factory. The spot of the accident comes in the coal yard inside the said factory. The coal yard belongs to Grasim Industry. He deposed that as per the Government Rules, public can go to the said spot with permission. He further deposed that as per the Government Rules, public can go to the said spot with permission. When it was suggested that without permission one cannot go to the said place, he answered, even without permission also people are going to the said place.

Considering the oral evidence of the parties and the legal position in the decisions relied upon by both the sides, the decision relied upon by the learned counsel appearing for the appellant Insurance Company which are referred to above have been overruled which were considered in the subsequent decisions of the Bombay High Court and other High Courts. Therefore, the law laid down by the Hon''ble High Courts in the decisions relied upon by the learned counsel appearing for the appellant-Insurance Company, is not a good law.

Looking to the materials placed on record it goes to show that the spot of accident is the coal yard. Though the company is a private company, materials also goes to show that good number of vehicles are coming inside the factory and after loading coal into the vehicles they will go outside. When good number of vehicles are entering into the said premises of the private factory it certainly goes to show that the said place is a public place. In respect of the vehicle in question which said to have caused the accident in the case on hand, it has also entered the premises of the said Company. So it can be inferred that, with the permission of the competent authorities of the said company itself, the said vehicle entered into the premises for the purpose of loading the coal. Hence, considering all these materials placed on record so also the legal position with reference to the decisions relied upon by the learned counsel appearing for the claimants so also the owner of the vehicle we are of the clear opinion that the place where the accident took place is a public place as defined u/S 2(34) of the M.V. Act (Sec. 2(24) of the M.V. Act, 1939). Hence, contention of the learned counsel appearing for the appellant-Insurance Company that it is not a public place and it is a private place and there is no liability on the part of the Insurance Company to pay compensation and the Tribunal committed error in allowing the petition cannot be accepted at all.

With regard to the another contention of the learned counsel appearing for the appellant Insurance Company that earlier FIR was registered against the driver of the offending vehicle for the offence u/S 279 and 304A of IPC. But, while filing charge sheet the offence u/S 279 of IPC was deleted since during investigation it transpired that the alleged place of accident is not a public place and it supports contention of the Insurance Company that the alleged place of accident is a private place, is concerned, it is no doubt true we have perused the materials and as it is submitted by the learned counsel for the appellant-Insurance Company that charge sheet was filed only for the alleged offence u/S 304A of IPC. As per Ex. R.1, judgment of the Criminal Court dated 25.02.2010 passed by the II Addl. JMFC Court at Ranebennur in C.C. No. 329/2009 also the accused was tried only for the offence u/S 304A of IPC and ultimately he was acquitted from the said charge. Hence, the charge u/S 279 of IPC with regard to rash and negligent driving of the driver of the offending vehicle is not inserted. Section 279 of IPC reads as under:

"279. Rash driving or riding on a public way -Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."

But the point for consideration is as to whether deletion of Sec. 279 of IPC by the I.O. while filing the charge sheet is the determining factor for the place of occurrence as to it is a public place or a private place. In this regard we have perused Section 43 of the Evidence Act which reads as under:

"43. Judgments, etc other than those mentioned in section 40 to 42 , when relevant - Judgments, orders or decrees, other than those mentioned in sections 40 , 41 and 42 , are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of this [Act].:"

The commentary to the said Section in the book by SARKAR ON LAW OF EVIDENCE 17th edition 2010 on page No. 1136 it reads as under:

"The judgment of a Criminal Court in a civil proceedings will only have limited application viz., inter alia, for the purpose as to who was the accused and what was the result of the criminal proceedings. Any finding in a criminal proceeding by no stretch of imagination would be binding in a civil proceeding, Sh. Vishnu Dutt Sharma Vs. Smt. Daya Sapra, . If judgment of a Civil Court is not binding on a Criminal Court, it is incomprehensible that a judgment of a Criminal Court will be binding on a Civil Court Sh. Vishnu Dutt Sharma Vs. Smt. Daya Sapra, . A decision of the Criminal Court does not have the effect of binding nature on the proceedings before the Civil Court including the Motor Accident Claims Tribunal, since the proof required in civil and criminal cases are different. If any material is available in the case, which would corroborate or strengthen the decision of the Criminal Court, then, there is no embargo for the Civil Court to place reliance upon it. (K. Subramani V. Director of Animal Husbandry, (2009) 1 MLJ 363 (Mad.)."

Therefore, looking to the principle of Sec. 43 as well as the decision of the Hon''ble Supreme Court referred in the said paragraph we are of the clear opinion that even though the I.O. has deleted Sec. 279 of IPC while filing the charge sheet but same is not binding on the MACT which is an independent body to appreciate the materials placed on record before it and to come to its own independent conclusion. Hence, the contention of the learned counsel for the appellant-Insurance Company in this regard cannot be accepted at all and from the above discussion and legal position and as the public are having right of access to the said place so as to load the coal into their vehicles we are of the opinion that it is a public place.

With regard to the another contention of the learned counsel for the appellant Insurance Company that the claimants have received death claim settlement to the tune of Rs. 32,60,279/- and hence they are not entitled to claim compensation under the M.V. Act is concerned, even the learned counsel for the appellant-Insurance Company further submitted that, as the deceased was getting the salary of more than Rs. 15,000/- per month, he is not serious about the said point. Therefore, in view of the document as per Ex. P.9, pay slip in respect of the deceased and the submission made by the learned counsel for appellant-Insurance Company, we are not inclined to discuss it in detail.

Regarding the deduction towards personal expenses of the deceased is concerned, the Tribunal has deducted 50%. The appellants-claimants in the connected appeal contended that the Tribunal ought to have deducted 1/3rd towards personal expenses and 50% deduction is not correct, is concerned, we have perused the decision reported in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . At paragraph No. 30 it is held as under:

"30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members if 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six."

It is an undisputed fact that the deceased was a married person left the claimants-appellants, i.e., wife and son, though it is contended by the other side that son cannot be the dependent, but during the course of trial before the Tribunal nothing was placed on record what was the earning of the son of the deceased so as to lead his life independently. Therefore, the deduction ought to have been 1/3rd towards the personal expenses and not 50% as done by the Tribunal.

The Tribunal has calculated the yearly income of the deceased at the rate of Rs. 4,34,712/-, out of which if 1/3rd is deducted (Rs. 1,44,904), the amount of Rs. 2,89,808/- will remain. The deceased was aged 50 on the date of accident. The proper multiplier applicable is 13. Hence, the total loss of dependency would be Rs. 37,67,504/-, out of which Rs. 4,68,000/- is to be deducted towards Income Tax and Professional Tax. Then the total loss of dependency would be Rs. 32,99,504/-.

The Tribunal has not awarded consortium to the wife of the deceased. Therefore, we award an amount of Rs. 1,00,000/- towards loss of consortium to the wife of the deceased. An amount of Rs. 25,000/- is awarded towards funeral expenses and other heads, which comes to Rs. 34,24,504/-. The Tribunal has awarded Rs. 24,12,628/-. Hence, the total enhancement is Rs. 10,11,876/-. Accordingly, the following order is passed.

ORDER

M.F.A. No. 20675/2013 filed by the Insurance Company is dismissed. The amount in deposit shall be transferred to the Tribunal forthwith.

M.F.A. No. 21192/2013 filed by the claimants is allowed in part. The claimants in all are entitled for enhanced compensation of Rs. 10,11,876/- (Rs. 34,24,504/- - Rs. 24,12,628/-) with interest at 6% p.a. from the date of petition till realisation.

Respondent Nos. 1 and 2, i.e., owner of the offending vehicle and the insurer of the vehicle, are jointly and severally liable to pay the above amount. Since the offending vehicle was insured with the respondent-Insurance Company, Insurance Company is liable to pay the entire compensation amount within eight weeks from the date of receipt of a copy of this judgment.

Apportionment of the compensation between the claimants would be as per the order of the Tribunal.