JUDGMENT Hon’ble R.K. Rastogi, J.—Both these appeals have been filed against the judgment and award dated 26.5.1997 passed by then IVth Addl. District & Sessions Judge/Motor Accident Claims Tribunal, Deoria in MACP No. 283 of 1995, Smt. Gayatri Devi and others v. Akhtar Hussain and another. Since both these appeals have arisen out of the same judgment in the same case, we have heard them together and now we are deciding them by a common judgment. 2. The facts relevant for disposal of both these appeals are that : claimants, Smt. Gayatri Devi, Ravindra Nath Nayak, Km. Sunita Nayak, Akhilesh Kumar Nayak and Ashish Kumar Nayak filed the aforesaid motor accident cliams petition against Akhtar Hussain and United India Insurance Co. Ltd. with these allegations that Awadhesh Kumar Nayak, who was son of Smt. Gayatri Devi and Ravindra Nath Nayak and brother of Km. Sunita Nayak, Akhilesh Kumar Nayak and Ashish Kumar Nayak, was returning back from Gorakhpur to his house at Deoria as a pillion rider on a motor-cycle in the night between 19/20.5.1995. At about 1.30 A.M. near Tarkulahi Devi turn, Truck No. URO 9687 came behind. It was being driven by its driver rashly and in excessive speed and it hit the motor cycle and consequently Awadhesh Kumar Nayak received fatal injuries. He was taken to hospital and a sum of Rs. 5,000/- was spent on his treatment, but he died within a period of six hours after the incident. His age was 25 years at the time of accident and he was earning Rs. 4,000/- per month by doing business and agency in Life Insurance Corporation. The truck was owned by Akhtar Hussain and was insured with the United India Insurance Company. The petitioners, therefore, claimed Rs. 9,80,000/- for loss of dependency, Rs. 5,000/- being medical expenses, Rs. 60,000/- as special damages, Rs. 40,000/- as general damages, Rs. 10,000/- for funeral rites, Rs. 50,000/- as fixed compensation under Section 140 of the Motor Vehicles Act; in all Rs.11,45,000/- plus interest at the rate of 12% per annum. 3. The opposite party No.1, Akhtar Hussain filed a written statement in which he admitted the accident, but stated that there was no negligence of truck driver and the accident had taken place due to the negligence of the driver of the motor-cycle Virendra Prasad Nayak. 3. The opposite party No.1, Akhtar Hussain filed a written statement in which he admitted the accident, but stated that there was no negligence of truck driver and the accident had taken place due to the negligence of the driver of the motor-cycle Virendra Prasad Nayak. The truck was insured at the time of the accident with the Insurance Company and it was being driven by a licensed driver named Ram Preet and so the liability, if any, is to be borne by the Insurance Company. 4. The Insurance Company pleaded in its written statement that no accident had taken place as alleged in the petition nor Awadhesh Kumar Nayak had died as a result of accident. It also disputed the age and income of the deceased and further pleaded that the petitioners are neither legal representatives of the deceased nor his dependents. The deceased had no income. The owner and insurer of the motor cycle had not been impleaded and the claim petition was bad for their non-joinder. Even if it is found that the accident had taken place due to joint fault of the motor-cycle driver and the truck driver, the Insurance Company cannot be saddled with the total liability. The truck was not insured and the claimants have made excessive claim. The driver did not have any valid licence. The truck was being driven in violation of the terms of insurance policy. No information of accident was given to the Insurance Company by the owner of the truck. If any collusion is found in between the claimant and the owner of the truck, the Insurance Company will be entitled to contest the case under Section 170 of the Motor Vehicles Act. The petitioners had not filed any first information report, site plan, charge-sheet and postmortem report etc. 5. Following issues were framed in the claim petition : (1) Whether any accident of the motor cycle took place in between the night of 19/20.5.1995 at about 1.30 A.M. near Tarkulahui Devi turn on Gorakhpur Deoria road with Truck No. URO 9687 due to rash and negligent driving by its driver resulting into injuries to its pillion rider Awadhesh Kumar Nayak and whether Awadhesh Kumar Nayak died as a result of those injuries on 20.5.1995 at 7.30 A.M.? (2) Whether the truck was insured with United India Insurance Company at the time of accident? (2) Whether the truck was insured with United India Insurance Company at the time of accident? (3) Whether truck driver had valid driving licence? (4) Whether the petition was bad for non-joinder of necessary parties? (5) To what relief and amount, if any, are the petitioners entitled? 6. The learned Presiding Officer of the Claims Tribunal held on issue No. 2 that the truck was insured with the Insurance Company (O.P. No. 2) at the time of accident. He further held on issue no. 3 that the truck driver had a valid driving licence. He held on issue No. 4 that the motor-cycle owner and insurer were not necessary party and the petition was not bad for their non-joinder. He held on issue No. 1 that the accident had taken place due to rash and negligent driving of the truck driver resulting into fatal injuries to Awadhesh Kumar Nayak and as a result of those injuries he died on 20.5.1995 in the morning. He held on issue No. 5 that income of the deceased was Rs. 4,000/- per month. For deciding the dependency of the petitioners, he divided the above income into 10 units and further held that personal expenses of the deceased could be treated to be a bit more than two units, i.e. Rs. 850/- and after deducting this amount from Rs. 4,000/- dependency of the petitioners comes to Rs. 3,150/-. He was, therefore, of the view that on further calculation annual dependency comes to Rs. 37,800/- and after adopting the multiplier of 17 years he assessed the loss of dependency at Rs. 6,42,600/- and after adding Rs. 4,500/- as funeral expenses and loss of estate, he fixed the amount of compensation at Rs. 6,47,100/-. He, therefore, decreed the petition for recovery of Rs. 6,47,100/- alongwith pendent lite and future interest till the date of actual recovery at the rate of 12% per annum. 7. Aggrieved with the above amount awarded by the Tribunal, Insurance Company filed F.A.F.O. No. 600 of 1997. 8. The claimants were also dissatisfied with the amount awarded as compensation and so after filing of the above appeal they filed First Appeal From Order on 12.9.1997. It may be mentioned that limitation period for filing the appeal had expired on 3.9.1997, so it was registered as Defective F.A.F.O. No. (403 ) of 1997. 8. The claimants were also dissatisfied with the amount awarded as compensation and so after filing of the above appeal they filed First Appeal From Order on 12.9.1997. It may be mentioned that limitation period for filing the appeal had expired on 3.9.1997, so it was registered as Defective F.A.F.O. No. (403 ) of 1997. An application under Section 5 of the Limitation Act was moved for condonation of delay in filing the appeal. However, steps were not taken for service of notice upon the opposite parties. The appellants were, therefore, directed to take steps. It appears that thereafter both these appeals were taken up together, though no formal order for condonation of delay was passed in defective appeal No. 403 of 1997. 9. We have heard learned counsel of both the parties in both the appeals. Findings of the learned Presiding Officer of the Claims Tribunal on issues No. 1, 2, 3 and 4 were not assailed by either party. Both the parties assailed his finding on issue No. 5 only which is about quantum of compensation. It was argued by the learned counsel for the claimants that the appeal filed by the Insurance Company on the point of quantum of compensation amount was not maintainable without permission under Section 170 of the Motor Vehicles Act. With a view to meet the above objection, the Insurance Company moved an application under Section 170 of the Motor Vehicles Act before this Court. The above application was opposed by the claimants. We have heard learned counsel for both the parties on this application. 10. A perusal of the trial Court record, however, goes to show that on 28.1.1997 Insurance Company had moved an application Paper no. C-37 for grant of permission under Section 170 of the Motor Vehicles Act and that application was allowed by the court vide order of the same date. As such the plea of the claimant that appeal of the Insurance Company is not maintainable has got no force. But there is no question of grant of fresh permission on the application moved by the Insurance Company before this Court, as its application Paper No. C-37 for this purpose has already been allowed by the trial court. 11. Now we take up the findings of the learned Presiding Officer of the Claims Tribunal on issue No. 5 on merits. 12. 11. Now we take up the findings of the learned Presiding Officer of the Claims Tribunal on issue No. 5 on merits. 12. The petitioners have alleged that Awadhesh Kumar Nayak was working as a partner in M/S R.K. Enterprises and was earning Rs. 4,000/- per month from the business of the above firm. It was submitted by the learned counsel for the claimants that the claimants had produced evidence in support of this allegation, which proved this income, but it has been wrongly disbelieved by the trial Court. We have gone through the finding on this issue. The petitioners had not filed any documentary evidence to show that M/s. R.K. Enterprises is a registered firm or that Awadhesh Kumar Nayak was a partner of that firm. The statement of Ravindra Kumar Srivastava P.W. 5 who was examined by the claimants to prove that Awadhesh Kumar Nayak was earning Rs. 4,000/- per month in the above firm is self contradictory. At some places he has stated that the deceased was a partner and at some other places he stated that the deceased was a servant and was being paid salary by him as Rs. 3,150/- per month. The learned Presiding Officer of the Claims Tribunal has rightly disbelieved the evidence on this point. We find no error in this finding and so we disbelieve the allegations of any income of the deceased from the above firm. 13. The other source of income of the deceased was the income from LIC as its agent. A documentary evidence as Paper No. C-23/1 was filed in which it was shown that during the period from 31.10.1994 to 31.3.1995 Awadhesh Kumar Nayak had obtained insurance of fourteen lacs and his income from first premium on the above amount was Rs. 19,663/-. This certificate has been proved by Sri S.K. Jauhari, P.W. 6, an employee of LIC, and on the basis of this certificate monthly income of the deceased has been assessed to be Rs. 4,000/- per month. The learned counsel for the Insurance Company argued before us that income from first premium could not be Rs. 19,663/- but it could be only Rs.1966/- at the rate of 10% of the first premium. We find no force in this contention. It has been clearly stated in the aforesaid certificate that the amount of Rs. 19,663/- was the income of the deceased from the first premium. 19,663/- but it could be only Rs.1966/- at the rate of 10% of the first premium. We find no force in this contention. It has been clearly stated in the aforesaid certificate that the amount of Rs. 19,663/- was the income of the deceased from the first premium. 14. Thus, the position is that the trial Court properly assessed the income of the deceased as Rs. 4,000/- per month. Now the question is what amount should have been awarded as compensation. 15. It is to be seen that marriage of the deceased had not taken place and he had no wife or children. The claimants are his parents, brothers and sister. In such a case dependency of the claimants is to be assessed as 1/3 of the total amount of income of the deceased as laid down in the Division Bench ruling of this Court in ‘United India Insurance Company v. Shakir Ali’, 2005(61) A.L.R. 688. Thus, the amount of annual dependency of the claimants comes to Rs.16,000/- per year. So far as question of adoption of a suitable multiplier is concerned, it is to be seen that brothers and sister do not come within the ambit of dependents and the parents alone would be treated to be dependents. In the present case, age of the mother of the deceased was 44 years at the time of his death and so under Schedule 2 of the Motor Vehicles Act multiplier of 15 years would be applicable in the present case. After multiplying 16000 with 15 the amount payable under the head loss of dependency comes to Rs. 2,40,000/-. The amount of Rs. 2,000/- towards funeral expenses, and Rs. 2,500/- towards loss of estate is also to be added to this amount. We are of the view that a sum of Rs. 25,000/- should also be awarded to the claimants for the loss of love and affection due to the death of the deceased. Thus, the total amount of compensation which comes, according to the above calculation, is Rs. 2,69,500/-. 16. The petitioners were allowed interest at the rate of 12% per annum on the above amount from the date of institution of the petition till the date of actual recovery. It was submitted that the rate of interest is high and it should be reduced. 2,69,500/-. 16. The petitioners were allowed interest at the rate of 12% per annum on the above amount from the date of institution of the petition till the date of actual recovery. It was submitted that the rate of interest is high and it should be reduced. We are of the view that when interest was awarded in the year 1997 it was the prevalent market rate of interest at that time. 17. The Insurance Company has also deposited the amount in accordance with stay order dated 28.7.1997 and so the liability to pay interest ceased after deposit of the amount in the year 1997. As such we find no justification to reduce the rate of interest. 18. It further appears from perusal of the stay order passed by this Court on 28.7.1997 that Insurance Company was directed to deposit Rs. 3,23,550/- before the Tribunal concerned, which was to be paid to the claimants without furnishing any security and the remaining half amount was to be deposited in a nationalized Bank. The learned counsel for the Insurance Company has made a statement before us at the time of arguments that in case the appeal is allowed and if the amount of compensation is found to be less than the amount deposited by the Insurance Company in the Court, the Insurance Company shall not claim refund of the excess amount deposited in the Court. 19. Defective F.A.F.O. No. 403 of 1997 is, therefore, dismissed. F.A.F.O. No. 600 of 1997 is partly allowed and the amount of compensation is reduced to Rs.2,69,550/-. The petitioners shall be entitled to interest on the above amount at Rs.12% per annum from the date of filing of the petition till the date of actual deposit of the amount in the Court. The petitioners are allowed proportionate costs of the petition. The entire decretal amount payable in accordance with the above order shall be calculated by the office of the trial court and if this amount is found to be less than the amount of Rs. 3,23,550/- which was deposited by the Insurance Company in Court, the Insurance Company shall not be entitled to claim refund of any excess amount but if the amount exceeds Rs. 3,23,550/- the Insurance Company shall be liable to pay the balance and that balance can be recovered from the deposit made by the Insurance Company in the nationalized Bank. 20. 3,23,550/- which was deposited by the Insurance Company in Court, the Insurance Company shall not be entitled to claim refund of any excess amount but if the amount exceeds Rs. 3,23,550/- the Insurance Company shall be liable to pay the balance and that balance can be recovered from the deposit made by the Insurance Company in the nationalized Bank. 20. F.A.F.O. No. 600 of 1997 is disposed of accordingly. Appeals Decided Accordingly. ————