JUDGMENT : M.R. SHAH, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and award dated 22.01.2016 passed by learned Motor Accident Claims Tribunal (Main), Mahesana, in M.A.C.P. No. 700/2010, by which the learned Tribunal has partly allowed the said claim petition and has awarded the total compensation of Rs. 32,71,035/- to the original claimants together with interest thereon @ 9% per annum from the date of the claim petition till realization, towards the compensation for the death of deceased-Surekhaben w/o. Kirtikumar Patel, original opponent-United India Insurance Company Limited-insurer of Car bearing registration No. GJ-18-AC-2401, has preferred the present first appeal. 2. It is not in dispute that in a vehicular accident, which occurred on 26.05.2010, wife of original claimant No. 1, Surekhaben, who was traveling in the said car died. Therefore, husband of deceased-Surekhaben and minor Fenil, son of the deceased, filed M.A.C.P. No. 700/2010 before the learned Tribunal claiming a total sum of Rs. 35,00,000/- towards compensation. At this stage it is required to be noted that the original claimant No. 1-Kiritbhai T. Patel, husband of the deceased-Surekhaben, was also the driver and owner of Car No. GJ-18-AC-2401 and, therefore, in M.A.C.P No. 700/2010 in fact he was also joined as party respondent No. 1. Therefore, as such the original claimant No. 1 filed the claim petition against himself. That as the deceased-Surekhaben died in a vehicular accident while she was traveling in Car No. GJ-18-AC-24 01 which, at the relevant time, was being driven by original claimant No. 1 and also owned by him is not in dispute. 3. That therefore on appreciation of evidence and considering the Income Tax Returns of the deceased-Surekhaben produced below Exh.24, Exh.25 and Exh.26 for the Assessment Years 2008-09, 2009-10 and 2010-11 the learned Tribunal assessed the average income of the deceased at Rs. 2,13,069/- per annum and after adding 50% towards future rise in income the learned Tribunal has considered the prospective income of Rs. 3,19,603/- per annum, after deducting 1/3rd towards the personal expenses of the deceased, the learned Tribunal considered dependency benefit of Rs. 2,13,069/- per annum and after applying multiplier of 15, awarded Rs. 13,96,035/- towards loss of dependency/future loss of income. That thereafter the learned Tribunal has awarded a further sum of Rs. 1,25,000/- under the conventional head and funeral expenses. 3,19,603/- per annum, after deducting 1/3rd towards the personal expenses of the deceased, the learned Tribunal considered dependency benefit of Rs. 2,13,069/- per annum and after applying multiplier of 15, awarded Rs. 13,96,035/- towards loss of dependency/future loss of income. That thereafter the learned Tribunal has awarded a further sum of Rs. 1,25,000/- under the conventional head and funeral expenses. Thus, by the impugned judgment and award the learned Tribunal has awarded a total sum of Rs. 32,71,035/- with 9% interest thereon from the date of the claim petition till realization. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Tribunal, the original opponent No. 2-insurance company, insurer of Car No. GJ-18-AC-2401 involved in the accident, has preferred the present First Appeal. 4. Mrs. Sharmistha Dave, learned advocate appearing on behalf of the appellant-Insurance Company, has vehemently submitted that in the facts and circumstances of the case the learned Tribunal has materially erred in awarding future loss of income/loss of dependency assessing the prospective income of Rs. 2,13,069/- per annum. It is vehemently submitted by Mrs. Dave, learned advocate appearing on behalf of the appellant-Insurance Company, that the learned Tribunal has materially erred in assessing the income of the deceased at Rs. 2,13,069/- by taking the mean of income mentioned in the Income Tax Returns for Assessment Years 2008-09, 2009-10 and 2010-11. It is further submitted by Mrs. Dave, learned advocate appearing on behalf of the appellant-Insurance Company, that while assessing the income of the deceased the learned Tribunal has materially erred in considering the Income Tax Return for Assessment Year 2010-11 produced at Exh.26 It is submitted that it is an admitted position that the Income Tax Return for the A.Y 2010-11 was filed after the date of accident and the death of the deceased-Surekhaben. Therefore for assessing income of the deceased, the income mentioned in the Income Tax Returns for Assessment Years 2008-09, and 2009-10 produced at Exh.24-25 alone are required to be considered. 5. It is further submitted by Mrs. Dave, learned advocate, that the learned Tribunal has also committed grave error in adding 50% towards future rise in income. Therefore for assessing income of the deceased, the income mentioned in the Income Tax Returns for Assessment Years 2008-09, and 2009-10 produced at Exh.24-25 alone are required to be considered. 5. It is further submitted by Mrs. Dave, learned advocate, that the learned Tribunal has also committed grave error in adding 50% towards future rise in income. It is submitted that even considering the rise in the income in the Assessment Years 2008-09 and 2009-10 and even considering the decision dated 20.03.2015 rendered by Division Bench of this Court in the case of New India Insurance Company Limited v. Manishaben Sanjaybhai Tribhovandas Modi, passed in First Appeal No. 2366/2014, the learned Tribunal could have added 35% towards future rise in income, considering even the rise in income for the Assessment Years 2008-09 and 2009-10. 6. It is further submitted by Mrs. Dave, learned advocate appearing on behalf of the appellant-Insurance Company, that as the original claimant No. 1 him self was the driver and the owner of Car No. GJ-18-AC-24 01 involved in the accident and that he can be said to be tortfeasor and, therefore, the share qua him is required to be deducted as being a tortfeasor he is not entitled to share qua him. In support of her above submission, Mrs. Dave, learned advocate appearing on behalf of the appellant-Insurance Company, has heavily relied upon the decision of the learned Single Judge of this Court in the case of The New India Assurance Company Limited v. Minor Himaniben, rendered in First Appeal No. 3926/2007, more particularly Paragraph Nos. 26-27. Making the above submissions, it is requested to allow the present first appeal accordingly and modify the impugned judgment and award passed by the learned Tribunal. 7. The present appeal is vehemently opposed by Shri. Umesh Trivedi, learned advocate appearing on behalf of the original claimants. He has as such conceded that the Income Tax Return for the Assessment Year 2010-11 was filed after the death of the deceased-Surekhaben and, therefore, as such he has fairly conceded that while assessing the income for awarding future loss of income, the Income Tax Returns for the Assessment Years 2008-09 and 2009-10 alone can be considered. It is submitted by Shri. Trivedi, learned advocate appearing on behalf of the original claimants, that therefore considering the fact that in the Assessment Year 2008-09 the income of the deceased was Rs. It is submitted by Shri. Trivedi, learned advocate appearing on behalf of the original claimants, that therefore considering the fact that in the Assessment Year 2008-09 the income of the deceased was Rs. 1,57,010/- per annum and in the Assessment Year 2009-10 income of the deceased, who was running a tuition class was Rs. 2,13,069/- and, therefore, taking the mean of the above, income of the deceased can be assessed at Rs. 1,85,039/- per annum. 8. Shri. Trivedi, learned advocate appearing on behalf of the original claimants, has further submitted that even the original claimants shall be entitled to at least Rs. 1,50,000/- under the conventional heads. 9. Now so far the contention on behalf of the appellant-Insurance Company that as the original claimant No. 1 can be said to be the tortfeasor as he was the driver-cum-owner of Car No. GJ-18-AC-2401 involved in the accident and, therefore, the share qua him is required to be deducted as he cannot be permitted to take benefit of his own wrong being tortfeasor is concerned, it is submitted by Shri. Trivedi, learned advocate appearing on behalf of the original claimants, that as such the original claimant No. 1 filed claim petition for claiming compensation for the death of his wife, deceased-Surekhaben, and the claim petition was not filed for compensation for his own injury and, therefore, the decision of the learned Single Judge relied upon by the learned advocate appearing on behalf of the appellant-Insurance Company rendered in First Appeal No. 3926 of 2007 would not be applicable to the facts of the case on hand and, therefore, the contention on behalf of the appellant that 50% of the amount of compensation being the share of the claimant No. 1 is required to be accepted has no substance and the same is required to be rejected. Making the above submissions, it is requested to dismiss the present appeal and/or modify the impugned judgment and award passed by the learned Tribunal, in so far as awarding the amount of compensation under the head of future loss of income/loss of dependency to the aforesaid extent. 10. Heard the learned advocates appearing on behalf of the respective parties. Perused the impugned judgment and award passed by the learned Tribunal. We have re-appreciated the entire record and proceedings of the case received from the learned Tribunal. 11. 10. Heard the learned advocates appearing on behalf of the respective parties. Perused the impugned judgment and award passed by the learned Tribunal. We have re-appreciated the entire record and proceedings of the case received from the learned Tribunal. 11. At the outset it is required to be noted and it is not in dispute that deceased-Surekhaben, for whom the compensation was claimed, was traveling in Car No. GJ-18-AC-2401 which, at the relevant point of time, was being driven by the original claimant No. 1 himself. It is also not in dispute that in fact original claimant No. 1 himself was joined as party opponent No. 1 in the claim petition as driver and owner of Car No. GJ-18-AC-2401 involved in the accident and, therefore, as such, he filed claim petition against himself by joining him as opponent No. 1 as the driver-cum-owner of Car No. GJ-18-AC-2401. It is also required to be noted that in the claim petition neither any vehicle is involved nor any driver, owner or the insurance company of any other vehicle is joined. In the claim petition only original claimant No. 1 himself is joined as opponent No. 1 also as driver-cum-owner of Car No. GJ-18-AC-2401 and the appellant-Insurance Company being the insurance of Car No. GJ-18-AC-2401 involved in the accident. In the backdrop of the aforesaid facts, the submission made by the learned advocates appearing on behalf of the respective parties are required to be considered. 12. Now so far as the quantum of amount of compensation awarded by the learned Tribunal is concerned, by the impugned judgment and award the learned Tribunal has awarded total compensation of Rs. 32,71,035/- with 9% interest thereon from the date of the claim petition till realization under the different heads as under:- Future loss of income Rs. 31,46,035/- Under the conventional heads and funeral expenses Rs. 01,25,000/- Total Rs. 32,71,035/- 13. That the original claimants relied upon the Income Tax Returns of the deceased produced at Exh.24, Exh.25 and Exh.2 6 for the Assessment Years 2008-09, 2009-10 and 2010-11. Taking the mean of income in the aforesaid three years, the learned Tribunal has assessed the income of the deceased at Rs. 2,13,069/- per annum. That thereafter, after adding 50% towards future rise in income the learned Tribunal has considered the prospective income of Rs. 3,19,603/- per annum. Taking the mean of income in the aforesaid three years, the learned Tribunal has assessed the income of the deceased at Rs. 2,13,069/- per annum. That thereafter, after adding 50% towards future rise in income the learned Tribunal has considered the prospective income of Rs. 3,19,603/- per annum. However, it is required to be noted and it is not in dispute that the income for the Assessment Year 2010-11, which was produced at Exh.26, was admittedly filed after death of the deceased. Therefore, the same could not have and ought not to have been considered for the purpose of assessing the income of the deceased and while awarding future loss of income. In the Assessment Year 2008-09 the income of the deceased was Rs. 1,57,010/- and in the Assessment Year 2009-10, as per the Income Tax Return produced at Exh.25, income of the deceased was stated to be Rs. 2,13,069/-. Therefore, taking the mean of the income for the Assessment Years 2008-09 and 2009-10, income of the deceased can be assessed at Rs. 1,85,039/-. 14. From the Income Tax Returns produced at Exh.24-25 for the Assessment Years 2008-09 and 2009-10, it is not in dispute that there is rise in the income of the deceased to the extent of 35%. Under the circumstances, considering the decision of the Division Bench of this Court in the case of New India Insurance Company Limited v. Manishaben Sanjaybhai Tribhovandas Modi (supra), considering the prospective income 35% is required to be added towards future rise in income and the same would come to Rs. 2,49,799.50 (rounded off Rs. 2,49,800/-) and after deducting 1/3rd towards personal expenses of the deceased, loss of dependency would come to Rs. 1,66,534/- and thereafter applying multiplier of 15, the original claimants would be entitled to Rs. 24,98,010/- towards loss of dependency/future loss of income. The original claimants shall also be entitled to Rs. 1,50,000/- under the conventional heads and Rs. 10,000/- towards funeral expenses. Thus, the original claimants shall be entitled to Rs. 26,58,010/- towards compensation for the death of the deceased. 15. Next question which is paused for the consideration of this Court is: “Whether the original claimant No. 1, being a tortfeasor, himself 50% of the above qua his share is required to be deducted, as submitted on behalf of the appellant-insurance company? 16. 26,58,010/- towards compensation for the death of the deceased. 15. Next question which is paused for the consideration of this Court is: “Whether the original claimant No. 1, being a tortfeasor, himself 50% of the above qua his share is required to be deducted, as submitted on behalf of the appellant-insurance company? 16. As observed hereinabove, in the present case the original claimant No. 1 himself can be said to be the tortfeasor, being the driver and owner of Car bearing registration No. GJ-18-AC-2401 involved in the accident. As observed hereinabove, even in the claim petition filed by himself and the minor, he has joined himself as opponent No. 1, as driver and owner of Car bearing registration No. GJ-18-AC-2401. Thus, as such the original claimant No. 1 can be said to have filed the claim petition against him. It cannot be disputed that the liability of the insurance company is indemnified the award against the owner of the vehicle. Unless and until the owner of the vehicle insured is held liable to pay compensation, the insurance company is not liable to indemnify the award. 17. As observed hereinabove, even no other driver, owner or the insurance company of any of the vehicles are joined as party opponents. 18. Identical question came to be considered by the learned Single Judge of this Court in case of The New India Assurance Company Limited v. Minor Himaniben (supra) wherein it was a fatal case and the husband of the deceased was found to be tortfeasor and considering the provisions of the Motor Vehicles Act as well as the Hindu Succession Act, learned Single Judge in Paragraph Nos. 26-29 has observed and held as under: “26. The next and significant question that arises for consideration is whether in a case where the husband is a tortfeasor, the heirs of the wife can claim damages. In the opinion of this court, in the present case, the respondent No. 3 origin a defendant No. 1, who is the husband of the deceased being tortfeasor, would not be entitled to file a claim petition as a tortfeasor cannot make a claim against himself. However, the minor children can certainly file a claim petition. 27. At this juncture, reference may be made to the provisions of section 166 of the Motor Vehicles Act. However, the minor children can certainly file a claim petition. 27. At this juncture, reference may be made to the provisions of section 166 of the Motor Vehicles Act. The proviso to section 166 says that where all the legal representatives of the deceased have not been joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application. In the present case, the respondent No. 3 original defendant No. 1 is a legal representative of deceased Nitaben. Therefore, it was incumbent upon the claimants to join the respondent No. 3 as a claimant. It appears that since the respondent No. 3 had been joined as a defendant he has not been joined as a claimant in the claim petition. Nonetheless, having regard to the fact that the respondent No. 3 is a legal representative of deceased Nitaben and is a party in the claim petition, even if he has not made any claim or waived his share in favour of the claimants, while apportioning the compensation, the share of the respondent No. 3 would also be required to be determined. It is only thereafter, in case of waiver on the part of the respondent No. 3 that the amount would go to the other claimaints. Therefore, in all, there would be three claimants, namely, two minor children and the respondent No. 3 driver of the motorcycle. Under section 15 of the Hindu Succession Act, 1956, the property of a female Hindu dying intestate shall devolve according to the rules set out in section 16, firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband. Therefore, the husband as well as the children are entitled to equal shares in the property of the female Hindu dying intestate. Thus, both the claimants as well as the respondent No. 3 husband, would be entitled to an equal share in any compensation that may be awarded on account of the death of deceased Nitaben. 28. At this juncture, reference may be made to the decision of this court in the case of Pravinkumar Vallabhdas (Minor) v. Chhotalal Parmanandas & Co. Thus, both the claimants as well as the respondent No. 3 husband, would be entitled to an equal share in any compensation that may be awarded on account of the death of deceased Nitaben. 28. At this juncture, reference may be made to the decision of this court in the case of Pravinkumar Vallabhdas (Minor) v. Chhotalal Parmanandas & Co. 1978 GLR 62 , wherein the court has held that an application made by one or more heirs of the deceased is maintainable under section 110A of the Motor Vehicles Act, even if other heirs are not impleaded and even in such a case, the power of the Tribunal is not limited to awarding compensation in favour of applicants or to the extent of their shares and that a legal representative of the deceased applying for compensation and getting the same will hold it not only on his own behalf but also as a trustee for other legal representatives entitled to a share in the compensation. Therefore, even if the respondent No. 3 original opponent No. 1 is not impleaded as a claimant, the other claimants would hold the compensation to the extent of his share as trustee on his behalf. 29. In the facts of the present case, on the evidence which has come on record, the respondent No. 3 husband being a tortfeasor would not be entitled to file a claim petition against himself. But he being an heir, to the extent of his share, the claim would not be maintainable. Therefore, after determining the quantum of compensation, the extent of the share of the husband/rider of the motorcycle should be determined and the compensation awarded to the other heirs should be reduced to that extent.” 19. Considering the aforesaid decision of the learned Single Judge as well as considering the provision of Section 166 of the Motor Vehicles Act and the Hindu Succession Act, original claimant No. 1-husband of the deceased-driver-cum-owner of Car bearing registration No. GJ-18-AC-2401 involved in the accident and he being the tortfeasor, was not entitled to file the claim petition against himself. Therefore, after determining the quantum of compensation, the extent of the share of the husband should be determined and the compensation awarded to the other heir (in the present case minor original claimant No. 2) should be reduced to that extent. Therefore, after determining the quantum of compensation, the extent of the share of the husband should be determined and the compensation awarded to the other heir (in the present case minor original claimant No. 2) should be reduced to that extent. Under the circumstances, though it is held that the original claimants shall be entitled to Rs. 26,58,010/-, however, after deducting share of the original claimant No. 1, being the tortfeasor and driver-cum-owner of Car bearing registration No. GJ-18-AC-2401 involved in the accident, the original claimant No. 2 shall be entitled to Rs. 13,29,005/- with 9% interest thereon from the date of the claim petition till realization. 20. In view of the above and for the reasons stated hereinabove, the present appeal succeeds in part. The impugned judgment and award dated 22.01.2016 passed by the learned of Motor Accident Claims Tribunal (Main), Mahesana, in M.A.C.P. No. 700/2010 is hereby modified to the aforesaid extent and it is held that the original claimant No. 2 shall be entitled to Rs. 13,29,005/- with 9% interest thereon from the date of the claim petition till realization. 21. Now on partly allowing the present appeal any amount deposit by the appellant-Insurance Company in excess to the aforesaid, the appellant-insurance company shall be entitled to get back the same from the amount deposited by it lying/deposited with the learned Tribunal, which shall be paid to the appellant-Insurance Company with proportionate interest thereon, by A/c. Payee Cheque. 22. Present First Appeal is partly allowed to the aforesaid extent. Accordingly, Civil Application for stay stands disposed of. 23. Record and proceedings be sent back forthwith.