Judgment ( 1. ) THIS order shall also govern disposal of M. A. No. 179 of 2001 (Munna Singh v. Bidharam Koli ). Both the appeals under section 173 of Motor Vehicles Act, 1988 (in short the Act), arise out of a common award dated 22. 3. 2000 passed under section 168 of the Act by the sixth Additional Motor Accidents Claims tribunal, Gwalior (in short the Tribunal)directing the payment of compensation of rs. 4,97,440 in Claim Case No. 34 of 1998 and Rs. 2,74,000 in Claim Case No. 36 of 1998. ( 2. ) FACTS giving rise to these appeals are thus: on 20. 7. 1998 at about 8 p. m. deceased hannu Kushwaha, who was working as gangman was waiting for a bus at Jalalpur square. At that time an auto bearing registration No. MP 07-A 1418 driven by Pawan lodhi came and the deceased have fixed the fare and sat in the auto. When the auto reached near Sharma Farm, Sanvida Gas godown, Gwalior at 8. 30 p. m. at that time tanker owned by respondent No. 2 bearing registration No. CPG 4595 coming from gole Ka Mandir side was driven by Bidharam Koli, respondent No. 1, in a rash and negligent manner dashed against the said auto, causing several multiple injuries to all the three persons which included two passengers, who were travelling in the said auto and auto driver. Hannu Kushwaha and badri Kirar, who were travelling in the auto died on the spot. Pawan Lodhi sustained severe injuries, he was immediately taken to the hospital, but during treatment he died. ( 3. ) THE legal heirs of deceased Hannu kushwaha filed claim petition under section 166 of the Act before the Tribunal against the owner, driver and insurer of tanker claiming compensation to the tune of Rs. 15,44,200 on the ground that at the time of accident deceased was aged 38 years and was working as a gangman in cpwi Department of Railways and his salary was Rs. 4,905 per month. ( 4. ) LEGAL representatives of the deceased pawan Lodhi filed claim petition under section 166 of the Act before the Tribunal against the owner, driver and insurer of tanker claiming compensation to the tune of Rs. 4,905 per month. ( 4. ) LEGAL representatives of the deceased pawan Lodhi filed claim petition under section 166 of the Act before the Tribunal against the owner, driver and insurer of tanker claiming compensation to the tune of Rs. 6,15,000 on the ground that at the time of death the deceased Pawan Lodhi was 25 years of age and he was working as the driver and his salary was Rs. 2,000 per month. Apart from the salary he was also getting daily allowance at the rate of rs. 40. Before Tribunal, the tanker owner, respondent No. 2 was proceeded ex pane. The insurance company, respondent No. 3, in reply to the claim petitions stated that the tanker No. CPG 4595 was not insured with the company and no cover note was issued because owner failed to make the payment of premium. ( 5. ) BHARAT Singh, AW 3, eyewitness of the accident, who was present on the spot on 20. 7. 1998 and had seen the accident lodged F. I. R. at Police Station, Hazeera. The offence under sections 279 and 304-A of Indian Penal Code was registered by the police authorities. After investigation challan was filed and criminal case was registered against the respondent No. 1 as crime No. 0259 of 1998. ( 6. ) BHARAT Singh, AW 3, eyewitness of the accident, in paras 2, 3 and 4 of his statement stated that the accident had occurred due to rash and negligent driving by tanker driver, respondent No. 1. This fact was neither opposed by the respondents nor any evidence was produced in this respect. The Tribunal after appreciating the evidence of independent witness came to the conclusion that the accident occurred due to rash and negligent driving by the tanker driver and, therefore, held that it is not a case of contributory negligence and since there was no negligence on the part of the auto driver, therefore, the owner and insurance company of the auto driver are exonerated and held that they are not liable to pay any amount of compensation. ( 7. ) THE finding regarding rash and negligent driving is not under challenge. ( 8. ( 7. ) THE finding regarding rash and negligent driving is not under challenge. ( 8. ) THE deceased Hannu Kushwaha was working in the railway department, but no document was filed by the claimants regarding the date of birth of the deceased or service record to prove the exact date of birth of the deceased and, therefore, the tribunal relied on the post-mortem report, exh. P7 and recorded a finding that at the time of death deceased was 40 to 45 years of age. ( 9. ) IN respect of income of the deceased hannu Kushwaha, the salary statement of april 1998, Exh. P1 was filed. As per the salary certificate, Exh. P2, issued by the employer on 14. 9. 1999 the salary of the deceased Hannu Kushwaha was Rs. 4,087. H. P. Verma, AW 4, who was working as chief Railway Line Inspector in railway department, in para 4 of his statement stated that Exh. P2 is the salary certificate issued by his department which was prepared by him and the basic pay of the deceased was rs. 2,910, dearness allowance was Rs. 640, house rent allowance was Rs. 437, city allowance was rs. 25 and vehicle allowance was Rs. 75; the total salary was Rs. 4,087. He in para 5 of his statement stated that exh. P1 is salary statement of April 1998 in which Rs. 731 was added as travelling allowance because when employee went out of the place then he gets travelling allowance at the rate of Rs. 55 per day. He in para 7 of his statement stated that if the deceased was alive on 11. 10. 2000 then he would have been getting a salary of rs. 4,786. In view of the above statement of H. P. Verma, AW 4, Tribunal came to the conclusion that at the time of death the deceased was getting salary Rs. 4,087 and the yearly income of the deceased was rs. 49,044 (Rs. 4,087 x 12 = Rs. 49,044 ). After deducing 1/3rd towards his personal expenses the annual dependency of the appellants comes to Rs. 32,696. At the time of death the deceased was 41 years of age, therefore, as per Second Schedule framed under the Act after applying the multiplier of 15, the Tribunal determined the compensation at rs. 4,90,440. In other heads the Tribunal awarded Rs. 5,000 towards loss of consortium and Rs. 32,696. At the time of death the deceased was 41 years of age, therefore, as per Second Schedule framed under the Act after applying the multiplier of 15, the Tribunal determined the compensation at rs. 4,90,440. In other heads the Tribunal awarded Rs. 5,000 towards loss of consortium and Rs. 2,000 towards funeral expenses. Thus, Tribunal awarded a total compensation of Rs. 4,97,440 to the appellants in Claim Case No. 34 of 1998 with interest at 12 per cent per annum from the date of filing of the claim petition. ( 10. ) IN the Claim Case No. 36 of 1998, which was filed by the legal heirs of Pawan lodhi, the claimants in their claim petition as well as in their evidence adduced before the Tribunal stated that deceased Pawan lodhi was working as auto driver and his income was Rs. 2,000 per month and he was getting daily allowance at the rate of rs. 40. In post-mortem report, Exh. P15, the age of the deceased was shown as 24 years and, therefore, on the basis of the said material on record the Tribunal came to the conclusion that at the time of death the deceased was 24 years of age and his income was Rs. 2,000 per month. In respect of daily allowance at the rate of Rs. 40 the Tribunal after relying the judgment of the Apex Court in the case of Gurmeet kaur v. Harnaryan, 1999 SCC (Criminal)1146, held that the daily allowance is not the income of the deceased, therefore, the same cannot be said to be his earnings and after excluding the said amount held that the annual earnings of the deceased was rs. 24,000. After deducting 1/3rd towards the personal expenses of the deceased, determined the dependency on 2/3rd of the income at the rate of Rs. 16,000 per annum (Rs. 24,000 - Rs. 8,000 = Rs. 16,000 ). At the time of death the deceased was 24 years of age and, therefore, after applying the multiplier of 17, compensation is determined at Rs. 2,72,000 plus Rs. 2,000 was awarded towards funeral expenses. Thus, the total compensation is determined at rs. 2,74,000. ( 11. 16,000 per annum (Rs. 24,000 - Rs. 8,000 = Rs. 16,000 ). At the time of death the deceased was 24 years of age and, therefore, after applying the multiplier of 17, compensation is determined at Rs. 2,72,000 plus Rs. 2,000 was awarded towards funeral expenses. Thus, the total compensation is determined at rs. 2,74,000. ( 11. ) THE Tribunal after appreciating the evidence on record and after hearing parties passed the impugned award and held that due to rash and negligent driving of tanker bearing registration No. CPG 4595, the accident occurred and on the date of accident, i. e. , on 20. 7. 1998 the offending vehicle was not insured by the insurance company, respondent No. 3, therefore, the insurance company is not liable to pay the amount of compensation and directed that the owner and driver of offending vehicle are jointly and severally liable to pay the amount of compensation. ( 12. ) IN M. A. No. 176 of 2001, appellants challenged the quantum of compensation as well as the finding by which the Tribunal exonerated the insurance company. ( 13. ) LEARNED counsel for the appellants mrs. Meena Singhal, Advocate, has submitted that as per Exh. P1 the salary of hannu Kushwaha was Rs. 4,905 per month, whereas Tribunal committed error in holding that at the time of death salary of the deceased was Rs. 4,087 per month. H. P. Verma, AW 4, who issued the salary certificate, exh. P2, very categorically stated that the deceased was working as gangman and his salary was Rs. 4,087 per month. He in para 5 of his statement stated that the said certificate was issued on the basis of the original salary record of the deceased. He also stated the break-up salary slip, exh. P1, which are as follows: Basic pay rs. 2,850 dearness allowance rs. 456 house rent allowance rs. 428 city allowance rs. 25 travelling allowance rs. 731 vehicle allowance rs. 75 national holiday allowance rs. 85 enhanced dearness allowance rs. 255 total rs. 4,905 he, in para 6 of his statement, stated that if the employee goes out of the working place then only he gets travelling allowance at the rate of Rs. 55 per day, monthly it comes to Rs. 731 and after excluding the said amount the salary comes to Rs. 4,174 (Rs. 4,905 - Rs. 731 = Rs. 4,174 ). 4,905 he, in para 6 of his statement, stated that if the employee goes out of the working place then only he gets travelling allowance at the rate of Rs. 55 per day, monthly it comes to Rs. 731 and after excluding the said amount the salary comes to Rs. 4,174 (Rs. 4,905 - Rs. 731 = Rs. 4,174 ). The deceased was an employee of the railway department and no service record was filed by the appellants to prove the exact age of the deceased. As per post-mortem report, exh. P7, it can be safely held that at the time of death the deceased was 40 to 45 years of age and as per Second Schedule to the Act for the age between 40 and 45 years, multiplier of 15 will be applicable. ( 14. ) FROM the above evidence on record, it can be safely held that at the time of his death the salary of the deceased was rs. 4,174 per month, i. e. , Rs. 50,008 per annum (Rs. 4,174 x 12 = Rs. 50,088 ). The appellant No. 1, Kapori Devi, is widow of the deceased, appellant No. 2 is major son of the deceased, appellant Nos. 3 to 7 are minor sons and daughters of the deceased. Looking to the family members of the deceased, we deduct 1/4th of the amount for personal expenses, which the deceased was spending on himself and the rest of 3/4th amount the deceased was spending on his family. Thus, the loss of dependency is accordingly worked out to Rs. 37,566 for the claimants. Accordingly, total loss of dependency of the appellants on applying the multiplier of 15 comes to Rs. 5,63,490 (Rs. 37,566 x 15 = Rs. 5,63,490 ). The appellants will also be entitled further sum of Rs. 5,000 towards loss of consortium, rs. 2,000 towards funeral expenses and rs. 5,000 towards love and affection to the respondent Nos. 2 to 7 and Rs. 2,500 towards loss to estate. Thus, the total amount of compensation comes to Rs. 5,77,990 (rupees five lakh seventy-seven thousand nine hundred ninety ). ( 15. ) IN M. A. No. 179 of 2001, appellants are partly aggrieved by the award by which the Tribunal has exonerated the insurance company to indemnify the insured. However, the finding regarding quantum of compensation is not under challenge. ( 16. 5,77,990 (rupees five lakh seventy-seven thousand nine hundred ninety ). ( 15. ) IN M. A. No. 179 of 2001, appellants are partly aggrieved by the award by which the Tribunal has exonerated the insurance company to indemnify the insured. However, the finding regarding quantum of compensation is not under challenge. ( 16. ) LEARNED counsel for the appellants mrs. Meena Singhal, Advocate, contended that premium was paid and insurance company issued cover note on 17. 9. 1999 which is at page 94 of the paper book. She further stated that before the Claims Tribunal, the respondent/owner of the tanker filed an affidavit and stated that the premium was paid and vehicle was duly insured with the insurance company, respondent No. 3. ( 17. ) ON the other hand, Mr. B. N. Malhotra, learned counsel for the insurance company very categorically stated that no premium was paid nor any insurance policy was issued in respect of so-called cover note. He also submitted that on 21. 7. 1998 after accident the owner of the tanker tried to get the vehicle insured retrospectively covering the date of accident. The said proposed cover notes were cancelled by insurance company, vehicle was never insured and, therefore, Claims Tribunal has rightly exonerated the insurance company for the payment of compensation. He also submitted that the question regarding liability of the insurance company was cropped up earlier when claimants filed an application for grant of interim compensation, learned tribunal by order dated 10. 8. 1999 decided the question of liability of the insurance company and held that the vehicle was not insured and, therefore, insurance company is not liable to pay the amount of interim compensation. He also drew our attention to the affidavit of Development Officer filed before the Tribunal and submitted that the vehicle was never insured nor any cover note was issued and, therefore, no liability can be fastened on the insurance company. ( 18. ) LEARNED counsel for the appellants drew our attention to the decision of this court in the case of Praveen Vaidya v. Kailash, 2007 ACJ 2100 (MP) and submitted that in identical circumstances the division Bench of this court has held that the insurance company was jointly and severally liable with owner and driver to pay the compensation to third party. In the case of Praveen Vaidya (supra), the agent issued cover note on the assurance of the owner of the vehicle that sum of the premium would be paid during the course of the day, but when the same was not paid, the cover note was taken back by the agent from the owner and the same was cancelled on the same day. The insurance company also examined its Branch Manager, Agent and Development Officer in support of its case in the Tribunal. It is held that if the cover note was really cancelled, some endorsement should have been made on it by the concerned officer with proper explanation. There was no such endorsement nor signature of any officer regarding cancellation on the cover note and, therefore, held that insurance company was jointly and severally liable with owner and driver to pay compensation to third party. Here in the present case neither premium was paid nor any cover note was issued. In the cover note which is at pages 94 and 95, endorsement was made regarding cancellation of the same, but the same was rubbed by the claimants and there is no evidence on record, only affidavit on behalf of the owner, who was proceeded ex parte before the Tribunal and before this court gave an affidavit that vehicle was insured, but no oral evidence was recorded. Similarly, no statement either of the Branch Manager or development Officer or Agent was recorded before the Tribunal. Only one affidavit of Development Officer was filed and on the basis of the said piece of evidence the learned Tribunal has held that offending vehicle was not insured and, therefore, the insurance company is not liable to indemnify the insured. ( 19. ) LEARNED counsel for the appellants also placed reliance on the Division Bench decision of this court in the case of Oriental Insurance co. Ltd. v. Inderjit Kaur, 1998 ACJ 123 (SC), in which it has been held that the insurance company was liable to pay the amount of compensation. The supreme Court in the case of New India assurance Co. Ltd. v. Inderjit Kaur, 1998 ACJ 123 (SC), in which it has been held that the insurance company was liable to pay the amount of compensation. The supreme Court in the case of New India assurance Co. Ltd. v. Rula, 2000 ACJ 630 (SC), held following the decision in Inderjit Kaurs case (supra) that the insurer is not absolved of liability to a third party if the cheque issued towards payment of premium is dishonoured and the policy is cancelled after accrual of liability; that the payment of premium is not the concern of third party and that subsequent cancellation of policy due to dishonour of cheque would not affect the rights of third party. That was a case where issuance of policy by receiving cheque towards payment of premium and occurrence of accident was on the same day, viz. , on 8. 11. 1991 and the dishonour of the cheque was thereafter on 16. 11. 1991. ( 20. ) A Division Bench of this court in ishwar Singh v. Ashok Kumar, 2001 ACJ 1714 (MP), has held considering sections 147 (5) and 149 (1) of the Act and section 64-VB of the Insurance Act, 1938, that dishonouring of cheque after issuance of certificate of insurance which includes the cover note does not affect the rights of the third party and that insurance company can recover the amount from the insured. That was a case where the accident occurred on the very next day of issuance of cover note by the insurance company, receiving the cheque towards payment of premium and the cheque was dishonoured thereafter. In a Full Bench decision of Kerala High Court in Oriental Insurance Co. Ltd. v. Sivankutty, 2006 ACJ 106 (Kerala), it has been held that the liability of insurance company in damages for third party risks continues for the entire period covered by the policy in spite of the cheque issued towards the payment of premium was dishonoured and consequently policy was cancelled by the insurance company. The remedy of the insurance company lies against the insured to have the amount paid by them by way of compensation for third party risks to be got reimbursed. ( 21. The remedy of the insurance company lies against the insured to have the amount paid by them by way of compensation for third party risks to be got reimbursed. ( 21. ) SO far as the liability of the insurance company is concerned, only affidavits were filed by the parties regarding issuance of cover note or its cancellation on account of non-payment of the premium, but the deponents of the affidavit were not produced for cross-examination. Law is well settled that unless the oral testimony of a witness is tested by cross-examination, it cannot be accepted as evidence. It was duty of the insurer to prove the non-issuance/ cancellation of such cover note by some reliable and admissible evidence and proposition of law. We have not found any evidence on record or documents when and by whom it was issued and also under which procedure it was cancelled. If these things are not proved on record then merely on the basis of affidavit of the owner and insurance company, it cannot be assumed that cover note was issued or later on the same was cancelled. In view of the aforesaid, the finding of the Tribunal regarding exoneration of the insurer is liable to be set aside and accordingly the same is set aside. ( 22. ) SINCE no oral evidence on behalf of parties was adduced before the Tribunal in respect of issuance/non-issuance of cover note and its cancellation and, therefore, we are of the considered view that matter may be remanded to the Tribunal for deciding the question regarding the liability of the insurance company afresh after recording the evidence of the parties. ( 23. ) FOR the reasons stated above, in m. A. No. 176 of 2001 the amount of compensation is enhanced from Rs. 4,97,440 to Rs. 5,77,990. The enhanced amount shall also carry interest at the rate of 6 per cent per annum from the date of filing of appeal till its realisation. In M. A. No. 179 of 2001 the compensation amounting to rs. 2,74,000 determined by the Tribunal is just and proper in the light of evidence on record. In both the appeals the Tribunal is directed to decide the question of liability of the insurance company afresh after giving opportunity for leading oral and documentary evidence to the parties expeditiously. In M. A. No. 179 of 2001 the compensation amounting to rs. 2,74,000 determined by the Tribunal is just and proper in the light of evidence on record. In both the appeals the Tribunal is directed to decide the question of liability of the insurance company afresh after giving opportunity for leading oral and documentary evidence to the parties expeditiously. The parties are directed to appear before Sixth Additional Motor Accidents claims Tribunal, Gwalior on 11. 12. 2006. ( 24. ) IN the result, M. A. Nos. 176 and 179 of 2001 succeed in part and are allowed and disposed of to the extent indicated above, but without any order as to costs. Orders accordingly.