JUDGMENT : M.R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned judgment and award passed by the learned Motor Accident Claims Tribunal (Auxiliary), Surendranagar (hereinafter referred to as "the tribunal") in MACP Nos. 247/1995 and 248/1995, original opponent No. 3-United India Insurance Company Ltd. Insurer of the Truck involved in the accident has preferred the present Appeals on the ground of negligence as well as on quantum. 1.1 In a vehicular accident which occurred on 25/02/1995 between Tractor No. GJ-13-A-1638 and Truck No. GJ-7-T-7317 original claimant of MACP No. 247/1995-Ranjitsinh Jatubha Jhala sustained serious injuries and in the said accident one Bharatsinh died, and therefore, the injured claimant filed Claim Petition No. 247/1995 before the learned tribunal claiming a total sum of Rs. 12 lakhs towards compensation under different heads. 1.2 The heirs of the deceased-Bharatsinh filed MACP No. 248/1995 claiming a total sum of Rs. 9 lakh towards compensation under different heads for the death of the deceased. 1.3 On appreciation of evidence, the learned tribunal has held the driver of the Truck involved in the accident contributory negligent to the extent of 95% and the driver of the Tractor contributory negligent to the extent of 5%. Thereafter, on appreciation of evidence, the learned tribunal has awarded a total sum of Rs. 9,04,400/- to the original injured claimant of MACP No. 247/19995 with 9% interest thereon from the date of Claim Petition till realization under different heads as under; Rs. 7,20,000/- Loss of dependency Rs. 1,50,000/- Pain shock and suffering Rs. 25,000/- Loss of amenities Rs. 50,000/- Medical expenses Rs. 10,000/- Special diet Rs. 12,000/- Attendant charges Rs. 5,000/- Transportation charges Rs. 32,400/- Loss of income Rs. 9,04,400/- 1.4 By the impugned judgment and award the learned tribunal has awarded a total sum of Rs. 6,62,000/- to the original claimants in MACP No. 248/1995 with 9% interest thereon from the date of Claim Petition till realization under different heads as under; Rs. 5,76,000/- Loss of dependency Rs. 50,000/- Conventional head Rs. 25,000/- Pain, shock and suffering Rs. 10,000/- Funeral expenses Rs. 1,000/- Transportation charges Rs. 6,62,000/- 1.5 Feeling aggrieved and dissatisfied with the impugned common judgment and award passed by the learned tribunal, original opponent No. 3-Insurer of the Truck involved in the accident has preferred the present First Appeals on the ground of negligence as well as on quantum. 2. 25,000/- Pain, shock and suffering Rs. 10,000/- Funeral expenses Rs. 1,000/- Transportation charges Rs. 6,62,000/- 1.5 Feeling aggrieved and dissatisfied with the impugned common judgment and award passed by the learned tribunal, original opponent No. 3-Insurer of the Truck involved in the accident has preferred the present First Appeals on the ground of negligence as well as on quantum. 2. Shri Palak Thakkar, learned advocate appearing on behalf of the appellant-Insurer of the Truck involved in the accident has vehemently submitted that the learned tribunal has materially erred in holding the driver of the Truck involved in the accident contributory negligent to the extent of 95% and the driver of the Tractor involved in the accident contributory negligent to the extent of 5% only. It is submitted that in the facts and circumstances of the case and the manner in which the accident had occurred the learned tribunal ought to have held the driver of both the vehicles involved in the accident equally contributory negligent. 2.1 It is further submitted by Shri Thakkar, learned advocate appearing on behalf of the appellant that the Truck was coming behind the Tractor and one side of the Truck dashed with the Tractor, and therefore, the learned tribunal ought to have held the driver of the Tractor contributory negligent to the extent of 50%. 2.2 Now so far as the quantum of the amount of compensation awarded by the learned tribunal so far as First Appeal No. 2604/2007 arising out of MACP No. 247/1995 is concerned, Shri Thakkar, learned advocate appearing on behalf of the appellant has vehemently submitted that the learned tribunal has materially erred in awarding Rs. 7,20,000/- towards future loss in income. It is submitted that the learned tribunal has awarded loss of income as if there was total loss of income. It is submitted that while awarding future loss of income the learned tribunal has not considered medical certificate issued by the Doctor produced at Exh. 50 suggesting that the permanent partial disability would be 50%. It is submitted that therefore at the most the original claimant shall be entitled to only 50% of the income towards loss of income. It is further submitted that the learned tribunal has even erred in applying the multiplier of 15. 50 suggesting that the permanent partial disability would be 50%. It is submitted that therefore at the most the original claimant shall be entitled to only 50% of the income towards loss of income. It is further submitted that the learned tribunal has even erred in applying the multiplier of 15. It is submitted that the original claimant was aged 48 years and as per the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Smt.) and Ors. Vs. Delhi Transport Corporation reported in (2009) 6 SCC 121 multiplier of only 13 was required to be applied. Making the above submissions, it is requested to modify the impugned judgment and award passed by the learned tribunal in MACP No. 247/1995. 2.3 Now so far as the quantum of amount awarded by the learned tribunal in MACP No. 248/1995 is concerned, Shri Thakkar, learned advocate appearing on behalf of the appellant in First Appeal No. 2605/2007 arising out of MACP No. 248/1995 has vehemently submitted that the learned tribunal has materially erred in applying the multiplier of 16 while awarding future loss of income. It is submitted that admittedly the deceased was aged 48 years, and therefore, as per the decision of the Hon'ble Supreme Court in the case of Sarla Verma (Smt.) and Ors. (Supra) multiplier of 13 was required to be applied. It is further submitted by Shri Thakkar, learned advocate appearing on behalf of the appellant-Insurance Company that the learned tribunal has materially erred in awarding Rs. 25,000/- towards pain, shock and suffering. It is further submitted that as such nothing is on record that the deceased while taking the treatment had died. It is submitted that therefore the learned tribunal has materially erred in awarding Rs. 25,000/- towards pain, shock and suffering. It is further submitted that even the learned tribunal has materially erred in awarding Rs. 10,000/- towards funeral expenses. It is submitted that at the most the original claimants shall be entitled to Rs. 5000/- only towards funeral expenses. Making the above submissions, it is requested to allow both the Appeals and modify the impugned common judgment and award passed by the learned tribunal. 3. 10,000/- towards funeral expenses. It is submitted that at the most the original claimants shall be entitled to Rs. 5000/- only towards funeral expenses. Making the above submissions, it is requested to allow both the Appeals and modify the impugned common judgment and award passed by the learned tribunal. 3. Both these Appeals are vehemently opposed by Shri Mazmudar, learned advocate appearing on behalf of opponent No. 5-Insurer of the Tractor involved in the accident as well as Shri Manav Mehta, learned advocate appearing on behalf of the original claimants. Shri Mazmudar, learned advocate appearing on behalf of original opponent No. 5-Insurer of the Tractor involved in the accident has vehemently submitted that the findings recorded by the learned tribunal with respect to negligence and holding the driver of the Truck contributory negligent to the extent of 95% and the driver of the Tractor contributory negligent to the extent of 5% is on appreciation of evidence and by giving cogent reasons, and therefore, the same is not required to be interfered with by this Court. It is submitted that in the present case neither the driver nor the owner of the Truck contested the Claim Petition. It is submitted that even the driver of the Truck also did not step into the witness box to explain the manner in which the accident had taken place. It is submitted that on the other hand on behalf of the original claimants, one co-passenger who was traveling in the Tractor has been examined at Exh. 41. It is submitted that therefore the findings recorded by the learned tribunal on contributory negligence is not required to be interfered with by this Court. 3.1 Now so far as the quantum of amount of compensation awarded by the learned tribunal is concerned, Shri Manav Mehta, learned advocate appearing on behalf of the original claimants has submitted that as such the amount awarded by the learned tribunal can be said to be just compensation, and therefore, the same is not required to be interfered with by this Court. However, ultimately he has left it to the Court and to award just compensation. 4. Heard the learned advocates appearing on behalf of the respective parties at length. However, ultimately he has left it to the Court and to award just compensation. 4. Heard the learned advocates appearing on behalf of the respective parties at length. Now so far the challenge to the findings recorded by the learned tribunal on contributory negligence is concerned, at the outset it is required to be noted that by the impugned judgment and order and on appreciation of evidence, the learned tribunal has held the driver of the Truck contributory negligent to the extent of 95% and the driver of the Tractor contributory negligent to the extent of 5%. At the outset it is required to be noted that neither the driver nor the owner of the Truck contested the Claim Petition. Even the driver of the Truck involved in the accident had not stepped into the witness box to the explain the manner in which the accident had taken place. Considering the panchnama of the place of the accident produced at Exh. 55 and the deposition of the injured claimant, who has been examined at Exh. 41 and considering the fact that the Tractor was going ahead of the Truck i.e. Truck was coming from behind and while trying to overtake the Truck ran over the Tractor it cannot be said that the learned tribunal has committed any error in holding the driver of the Truck contributory negligent to the extent of 95%, and therefore, the findings recorded by the learned tribunal on contributory negligent is hereby confirmed. First Appeal No. 2604/2007 5. By the impugned judgment and award passed by the learned tribunal in MACP No. 247/1995 the learned tribunal has awarded a total sum of Rs. 9,04,400/- under different heads as under; Rs. 7,20,000/- Loss of dependency Rs. 1,50,000/- Pain shock and suffering Rs. 25,000/- Loss of amenities Rs. 50,000/- Medical expenses Rs. 10,000/- Special diet Rs. 12,000/- Attendant charges Rs. 5,000/- Transportation charges Rs. 32,400/- Loss of income Rs. 9,04,400/- 5.1 While awarding future loss of income the learned tribunal has assessed the income of the original claimant notionally at Rs. 3000/- per month and thereafter the prospective income at Rs. 4500/- per month. It is required to be noted that it is the case of injury and not death. 5,000/- Transportation charges Rs. 32,400/- Loss of income Rs. 9,04,400/- 5.1 While awarding future loss of income the learned tribunal has assessed the income of the original claimant notionally at Rs. 3000/- per month and thereafter the prospective income at Rs. 4500/- per month. It is required to be noted that it is the case of injury and not death. From the impugned judgment and award passed by the learned tribunal it appears that the learned tribunal has awarded future loss of income as if there was loss of income, which does not seem to be. As per the certificate issued by the Doctor produced at Exh. 50 the permanent partial disability seems to be 50% and the earning capacity has been reduced to 50% only as there is amputation of right leg below the knee. Under the circumstances, the learned tribunal is not justified in awarding the future loss of income as if there was a total loss of income. Even the learned tribunal has materially erred in applying the multiplier of 15 as the original claimant was aged 48 years instead multiplier of only 13 was required to be applied. Under the circumstances, the original claimant shall be entitled to Rs. 3,51,000/- under the head of future loss of income. Rest of the amount awarded by the learned tribunal is not required to be interfered with. The sum and substance of the above would be that the original claimant shall be entitled to a total sum of Rs. 6,35,400/- with 9% interest thereon from the respective insurer. To the aforesaid extent, the impugned judgment and award passed by the learned tribunal in MACP No. 247/1995 is required to be modified. FIRST APPEAL NO. 2605/2007 6. Now so far as First Appeal No. 2605/2007 arising out of MACP No. 248/1995 is concerned the learned tribunal has awarded at total sum of Rs. 6,62,000/- under different heads as under; Rs. 5,76,000/- Loss of dependency Rs. 50,000/- Conventional head Rs. 25,000/- Pain, shock and suffering Rs. 10,000/- Funeral expenses Rs. 1,000/- Transportation charges Rs. 6,62,000/- 6.1 From the impugned judgment and award the learned tribunal has awarded Rs. 5,76,000/- towards future loss of income and while awarding future loss of income the learned tribunal has applied the multiplier of 16. However, as the deceased was aged 48 years, and therefore, as per the decision of Sarla Verma (Smt.) and Ors. 1,000/- Transportation charges Rs. 6,62,000/- 6.1 From the impugned judgment and award the learned tribunal has awarded Rs. 5,76,000/- towards future loss of income and while awarding future loss of income the learned tribunal has applied the multiplier of 16. However, as the deceased was aged 48 years, and therefore, as per the decision of Sarla Verma (Smt.) and Ors. (Supra) multiplier of 13 is required to be applied. To the aforesaid extent the impugned judgment and award passed by the learned tribunal is required to be modified. It also appears that in the facts and circumstances of the case in absence of any other evidence on record that the deceased died while taking treatment and/or survived for some time, the learned tribunal is not justified in awarding Rs. 25,000/- under the head of pain, shock and suffering. The original claimant shall be entitled to a total sum of Rs. 5,29,000/- with 9% interest thereon from the date of application till realization. 7. In view of the above and for the reason stated hereinabove, both the Appeals succeed in part. The impugned judgment and award passed in MACP No. 247/2007 is hereby modified to the extent and it is held that the original claimant shall be entitled to Rs. 6,35,400/- with 9% interest thereon from the date of application till Claim Petition. 7.1 The impugned judgment and award passed by the learned tribunal in MACP No. 248/1995 is hereby modified to the extent and it is held that the original claimant shall be entitled to a total sum of Rs. 5,29,000/- from the date of application till Claim Petition till realization. 7.2 Both these Appeals are partly allowed to the aforesaid extent. No order as to costs. It goes without saying that any amount paid by the appellant-Insurer-original opponent No. 3 and/or even original opponent No. 5 in excess to the aforesaid amount, the respective Insurers shall be entitled to get back the same either from the Fixed Deposits lying from the learned tribunal and/or original claimants with accrued interest thereon proportionately.