Judgment ( 1. ) WITH the consent heard finally. These appeals are arising out of the common award dated 18. 05. 2008 passed by Additional Motor Accident Claims Tribunal, jhabua {for short the Tribunal} in Claim Case Nos. 149, 150, 151 and 68/2006. ( 2. ) MISC. Appeal No. 2613/07 has been filed at the instance of insurer against the award passed in Claim Case No. 149/05. The rest of the Misc. Appeals have been filed by the claimants seeking enhancement of the compensation. ( 3. ) AS the question of facts and law involved in all these appeals being common, all these appeals are being decided by this common order. ( 4. ) BRIEFLY stated on 04. 06. 2005 at about 9:45 AM deceased Vijay was riding a motor-cycle bearing Registration No. MP 43 B 7813. On the motorcycle pillion riders were Sindhu, Suresh and minor harishita aged 2 years. They were going from Pipalkhuta to Ratlam. When the motor-cycle reached between the Kalmoda and Kuagagan deceased Vijay stopped the motorcycle on the side of the road for drinking water. At that time a Tanker bearing Registration No. MP 09 KA 6660 coming from Ratlam side driven by Abdul Salam, owned by Tejmal and insured with National Insurance Company dashed them. As a result of the dash Harshita, Sindhu, Suresh and vijay suffered grievous injuries. They were taken to the Ratlam hospital. In the Hospital Vijay died during the treatment. An offence was registered against the Driver of the Tanker and the tanker was seized. ( 5. ) THE claimants filed aforesaid claim petitions under Section 166 of the Motor Vehicles Act, 1988 {for short the Act} before the tribunal seeking compensation for the injuries received by them and for the compensation for the death of Vijay in the said accident. ( 6. ) THE claim petition was resisted by the Insurer of the Tanker. The Tribunal framed as many as 5 issues and after recording evidence awarded compensation of Rs. 8,35,000/- to the claimants of the Claim Case No. 149/05 on account of the death of Vijay. Rs. 2,50,000/- to minor Harshita in Claim Case No. 150/05, rs. 30,000/- in Claim Case No. 151/05 to Sindhu and Rs. 2,42,000/-in Claim Case No. 68/06 to Suresh, for the injuries sustained by them. ( 7. 8,35,000/- to the claimants of the Claim Case No. 149/05 on account of the death of Vijay. Rs. 2,50,000/- to minor Harshita in Claim Case No. 150/05, rs. 30,000/- in Claim Case No. 151/05 to Sindhu and Rs. 2,42,000/-in Claim Case No. 68/06 to Suresh, for the injuries sustained by them. ( 7. ) DISSATISFIED with the amount of compensation awarded by the tribunal the claimants have filed four miscellaneous appeals under section 173 of the Act for enhancement as aforesaid, whereas the insurer has filed an appeal against the award passed in Claim Case no. 149/05. ( 8. ) SHRI Vishal Verma, learned counsel appearing for the claimants argued that the compensation awarded to the claimants is inadequate and being on much lower side the same deserves to be appropriately enhanced. He also argued that in the absence of any evidence on the part of the respondents about the contributory negligence of the deceased motorcyclist the Tribunal has rightly held that the accident occurred due to the sole negligence of the tanker driver. ( 9. ) SHRI S. V. Dandawate, learned counsel for the respondent in m. A. No. 2719, 2720, and 2721/2007 on the other hand submitted that the award passed in Claim Case Nos. 150/05, 151/05 and 68/06 being just and proper it needs no enhancement. He argued that the compensation awarded in Claim Case No. 149/05 (Misc. Appeal no. 2722/07) is excessive and unjust. In Misc. Appeal No. 2613/07 filed by the Insurer, he argued that the First Information Report {for short F. I. R. } was lodged by Sindhu herself stating therein that at the time of accident apartfrom deceased 3 persons were sitting as pillion riders on the motorcycle in the circumstances, the contributory negligence of the motorcyclist ought to have been held by the tribunal. He further argued that in the absence of mention in the f. I. R. that at the time of the accident the motorcycle was stationery as they had stopped it for drinking water, the Tribunal has committed error in not holding the motorcyclist guilty of contributory negligence in causing the accident as it was in motion and there was head on collision. According to him, the F. I. R. having been produced and proved by the claimants, in the circumstances, its contents were required to be accepted fully by the tribunal. According to him, the F. I. R. having been produced and proved by the claimants, in the circumstances, its contents were required to be accepted fully by the tribunal. Thus, according to him when the deceased Vijay Singh was carrying 3 persons on the motorcycle and as per the F. I. R, at the time of the accident the motorcycle was in motion, the Tribunal ought to have held the deceased rider of the motorcycle to be contributory negligent in causing the accident. In support of his submission he placed reliance on the judgment of the Supreme court in case of Oriental Insurance Company Limited Vs. Premlata Shukla and others 2007 ACJ 1928 . ( 10. ) PER contra Shri Vishal Verma, learned counsel appearing for the claimants placed reliance on the judgment of Karnataka High court in case of Fakirappa Vs. Yallawwa and another 2004 ACJ 1141. The judgment of Supreme Court in case of National Insurance Company Limited Vs. Indira Shrivastava and others 2008 ACJ 614 , a Full Bench judgment of this Court in case of devisingh Vs. Vikramsingh and others 2008 ACJ 393 , a Division bench judgment of this Court in case of Manjo Bee and others Vs. Sajjad Khan and others 2007 ACJ 737 , a Division Bench of this court in case of Nanhu Singh Vs. Jaheer 2005 M. P. Weekly Notes 91. A judgment of Orissa High Court in case of Mataji Bewa and others Vs. Heman Kumar Jena and another 1994 ACJ 1403, a Division Bench judgment of this Court in case of dhanwanti and others Vs. Kulwant Singh and others 1994 ACJ 708 . A Division Bench judgment of Karnataka High Court in case of Bhimavva and others Vs. Shankar and others 2005 ACJ 301. On the strength of these judgments he contended that the mere violation of Section 128 of the Act on the part of the motorcyclist by carrying more than 1 passenger as pillion rider will not raise a presumption of contributory negligence on the part of the deceased who was driving the motorcycle. He further argued that the Tribunal has rightly placed reliance on the oral evidence as neither the evidence of criminal case nor the version of F. I. R. can be relied upon as if the same was the gospel truth and the Tribunal has to rely upon the evidence led before it. He further argued that the Tribunal has rightly placed reliance on the oral evidence as neither the evidence of criminal case nor the version of F. I. R. can be relied upon as if the same was the gospel truth and the Tribunal has to rely upon the evidence led before it. ( 11. ) HEARD the learned counsel for the parties and perused the record. ( 12. ) IN order to deal with the question raised by learned counsel for the Insurer, I have perused the F. I. R. Ex. P/1 lodged by claimant sindhu. True it is that in the F. I. R. the version of the claimant sindhu is that deceased Vijay was carrying 3 persons including a minor aged 2 years on the motorcycle. However, having regard to the Full Bench judgment of this Court in case of Devisingh Vs. Vikram Singh and others (supra) mere carrying of more than 1 person as pillion rider will not raise presumption of contributory negligence on the part of the motorcyclist. It is also true that in the f. I. R. Ex. P/1 lodged by Sindhu she did not state that the motorcycle was stationery or that after stopping the motorcycle while they were drinking water a Tanker coming from Ratlam side dashed them. In her oral evidence she stated that on a demand for drinking water being made by her daughter the motorcycle was stopped by her husband Vijay on the side of the road and while they were drinking water a Tanker coming from opposite side rashly and negligently in an excessive speed dashed the motorcycle. In her cross-examination an explanation for the discrepancy in the F. I. R. and her statement was offered by her by deposing that at the time when the F. I. R. was lodged by her she was not fully conscious. Having given my anxious consideration to the version of Sindhu in the F. I. R. about the motorcycle being stopped and they were drinking water when the Tanker dashed them and to the explanation offered by her that she was not fully conscious when the F. I. R. was lodged, I find that undisputedly in the accident Sindhu herself, her husband, daughter and brother-in-law were also seriously injured. In the circumstances, when the F. I. R. Ex. In the circumstances, when the F. I. R. Ex. P/1 was recorded she along with her minor daughter, her husband and her near relative Suresh being under grievously hurt conditions she cannot be said to be in a fit mental condition to have given minute details of the accident. In the dehati Nalishi Ex. P/3 and in the F. I. R. Ex. P/1 she alleged causing of the accident by the rash and negligent driving of Tanker by its driver. This version of her was maintained by her in her oral evidence before the Tribunal. In these circumstances, even if the f. I. R. has been lodged by claimant Sindhu and was brought on record by herself if she in her oral testimony deposed that the motorcycle was stationery and they were drinking water when they were dashed by the Tanker it cannot be said that she has turned around. Even otherwise, assuming that the motorcycle was not stationery when the accident occurred and was under motion it cannot be said that there was contributory negligence on the part of the deceased. There is absolutely no evidence that when the accident occurred the motorcycle was being driven at an excessive speed by the deceased in a rash and negligent manner. The respondents have neither examined the driver of the Tanker nor any other reliable evidence has been produced in support of the plea that there was contributory negligence on the part of the motorcyclist. In the circumstances, it cannot be held that the deceased motorcyclist was contributory negligent for causing accident. As already observed that carrying more than 1 pillion rider would not itself be a presumption of negligence of the motorcyclist. There is no material on record to hold that the deceased was riding motorcycle rashly and negligently. On the other hand, there is ample evidence to hold that at the time of accident the tanker was being driven rashly and negligently and it dashed to the motorcycle. ( 13. ) THE next question which arises for consideration is whether the amount of compensation awarded by the Tribunal is justified. In claim Case No. 149/05 for the death of Vijay working on the post of community Development Coordinator who had done a course of computer and Basic Programme as per certificate Ex. ( 13. ) THE next question which arises for consideration is whether the amount of compensation awarded by the Tribunal is justified. In claim Case No. 149/05 for the death of Vijay working on the post of community Development Coordinator who had done a course of computer and Basic Programme as per certificate Ex. P/14, a Post graduate of Arts and Library Science and who was declared successful in the written test of Public Service Commission as per documents Exs. P/21 and P/22 the Claims Tribunal assessed his income to the tune of Rs. 7,000/- per month. Adopting the multiplier of 15 for the deceased in the age group of 30 to 35 years and taking dependency to the extent of Rs. 4,500/- per month the Tribunal assessed the total dependency of the claimant to the extent of rs. 8,10,000/ -. In addition the Tribunal has awarded Rs. 10,000/- for loss of consortium. Rs. 10,000/- each to the daughter and parents and rs. 5,000/- towards funeral expenses and for loss of estate. In all the tribunal has awarded compensation of Rs. 8,35,000/ -. ( 14. ) THE appointment letter of the deceased shows that the deceased Vijay was appointed on the post of Community development Coordinator with a condition that he will be paid guaranteed total cash of Rs. 7,000/- per month of which Rs. 3,500/-would be his basic salary. It was also mentioned in his letter of appointment that he was advised to inform the employer as to adoption of cafeteria benefit plan for the remaining amount of guaranteed total cash after deducting on the basis of selection of plan from various allowances including House Rent Allowance, transport Allowance, Leave Traveling Allowance, Medical allowance, Christmas gift and disturbed area allowance. In the absence of any evidence as to out of these cafeteria benefits which benefit has been taken by the deceased, his income as per guaranteed total cash has rightly been assessed by the Tribunal to be rs. 7,000/- per month. No doubt that there is evidence to the effect that the deceased was declared successful in the written test of the examination held by Public Service Commission, however, interview was not done and deceased was not selected for appointment by the P. S. C. , but having regard to his qualification and experience his future prospects were bright. No doubt that there is evidence to the effect that the deceased was declared successful in the written test of the examination held by Public Service Commission, however, interview was not done and deceased was not selected for appointment by the P. S. C. , but having regard to his qualification and experience his future prospects were bright. In the circumstances the income of the deceased assessed by the Tribunal appears to be just. ( 15. ) THE Tribunal instead of deducting 1/3rd for the personal expenditure of the deceased deducted more than 1/3rd which needs modification. Accordingly assessing the yearly income of the deceased to be Rs. 84,000/- deducting 1/3rd for his personal expenditure the annual dependency comes to Rs. 56,000/ -. Applying the multiplier of 17 for the deceased aged less than 35 years the total compensation for loss of dependency comes to Rs. 56,000/- x 17 = Rs. 9,52,000/ -. In addition the wife of the deceased would be entitled for Rs. 5,000/- for loss of consortium and the daughter and parents would be entitled for Rs. 5,000/- each for loss of love and affection. The appellant is also entitled for Rs. 2,000/- for funeral expenses and Rs. 5,000/- for loss of estate. The total compensation for which the appellant is entitled is Rs. 9,79,000/ -. ( 16. ) COMING to the award passed in Claim Case No. 150/05, claimant a minor aged 3 years suffered amputation of her leg due to the said accident. She remained admitted in Bombay Hospital, indore from 04. 06. 2005 to 16. 07. 2005 where she was operated. Skin grafting was done and her right leg below knee was amputated. Apartfrom the amputation of the right leg below knee she also suffered fracture in her head. The entire medical bills could not be produced as the bag in which the bills were kept was lost by the mother of the minor claimant for which a police report (Ex. P/31)was made. Taking into consideration her age and the injuries suffered by her, I am of the view that the award of compensation of rs. 2,50,000/- as has been awarded by the Tribunal is on lower side. The claimant Harshita is entitled for Rs. 50,000/- for suffering pain and mental agony. Rs. 2,00,000/- for permanent disability. Rs. P/31)was made. Taking into consideration her age and the injuries suffered by her, I am of the view that the award of compensation of rs. 2,50,000/- as has been awarded by the Tribunal is on lower side. The claimant Harshita is entitled for Rs. 50,000/- for suffering pain and mental agony. Rs. 2,00,000/- for permanent disability. Rs. 30,000/- for expenses of transportation and attendant during her hospitalization and for her future need of attendant which will be needed throughout her life. Rs. 25,000/- for future treatment like change of artificial limb which has been fixed. Rs. 75,000/- for expenses of her treatment during the period of hospitalization. In all rs. 3,80,000/- is awarded as compensation. ( 17. ) AS regards the Claim Case No. 151/05 in the accident claimant sindhu suffered fracture of her Spinal Cord and right hand. She was initially treated at Ratlam and thereafter shifted to Bombay hospital, Indore where she was admitted from 04. 06. . 2005 to 19. 06. 2005 for treatment. The Tribunal holding that the claimant suffered fracture in the right side superior, inferior Pubicremous awarded compensation of Rs. 30,000/- to the claimant. In my considered view compensation of Rs. 30,000/- having regard to the injuries suffered by the appellant in her right hand and Spinal Cord appears to be on lower side. The appellant is entitled for Rs. 20,000/-for medical expenses and the hospitalization charges for the period 04. 06. 2005 to 19. 06. 2005 during which she was admitted in bombay Hospital. She is also entitled for Rs. 40,000/- for the injuries of fracture sustained by her under the head of permanent disability as it has come in the evidence that there was restriction in the movement of her right hip. The appellant/claimant is also entitled for Rs. 15,000/- for pain and suffering, Rs. 10,000/- for transportation, special diet and attendant charges. Thus, the total compensation which is awarded to the appellant is Rs. 85,000/ -. ( 18. ) NOW coming to the award to the tune of Rs. 2,42,000/- passed in Claim Case No. 68/06 filed by Suresh. The claimant Suresh suffered fracture of his right leg in the said accident. He was thrice operated in the Bombay Hospital, Indore. According to him, he was earning Rs. 100/- per day as Mason. Dr. 85,000/ -. ( 18. ) NOW coming to the award to the tune of Rs. 2,42,000/- passed in Claim Case No. 68/06 filed by Suresh. The claimant Suresh suffered fracture of his right leg in the said accident. He was thrice operated in the Bombay Hospital, Indore. According to him, he was earning Rs. 100/- per day as Mason. Dr. Sudhir Chazzed (AW-3)who treated the appellant after his discharge from the Bombay hospital assessed his permanent disability to the extent of 50% in the right leg. It has come in the evidence that the appellant suffered fracture of Tibia and Fibula bone. He remained admitted in Bombay hospital, Indore from 04. 06. 2005 to 18. 07. 2005. Taking note of the evidence available on record, in regard to the period of hospitalization, medical bills, the three operations performed on the appellant/claimant in which skin and bone grafting was done and cobra Plates and Screws were fixed, I find that the compensation awarded by the claims Tribunal for medical expenses to the tune of rs. 1,00,000/- cannot be said to be unjust. Similarly having regard to his nature of job income and the extent of permanent disability in my view under head of permanent disability Rs. 1,00,000/- has rightly been awarded to him. On the other heads like pain and suffering award of Rs. 25,000/- is just. For transportation charges and special diet the appellant is entitled for Rs. 15,000/- in place of rs. 5,000/- as awarded by the Tribunal. For loss of income for 6 months the award of Rs. 12,000/- cannot be said to be unjust. Thus, the total compensation for which the appellant is entitled is rs. 2,52,000/ -. ( 19. ) AS a result of the aforesaid discussions Misc. Appeal no. 2613/2007 filed by the Insurer is dismissed. The Misc. Appeal nos. 2719, 2720,2721 and 2722/2007 stands allowed. In all the cases the enhanced compensation shall carry interest @ 7 % per annum from the date of application till payment. ( 20. ) THERE shall be no order of costs in all these appeals.