JUDGMENT : VIRENDRA KUMAR MATHUR, J. 1. These Civil Misc. Appeals under Sec. 173 of the Motor Vehicles Act 1988 have been filed against judgment & award dated 31.07.2002 passed by Motor Accident Claims Tribunal, Pali in MACT Case No. 100/2001 (47/1996) (Imam Khan & another v. Akram and others) and connected claim petitions. 2. The claimant-appellants have preferred appeals for enhancement of compensation awarded by the Tribunal while the appellant-insurance company has filed appeals against liability for payment of compensation awarded by the Tribunal. All the appeals arise of same accident and involve same set of facts and therefore, all these appeals are being considered and disposed by this common judgment. 3. Briefly stated, on 11.01.1996 Smt. Hazra, Ms Salma, Smt. Guddi, Ms Gulshan, Ameer Khan, Smt. Kozi and Saleem were going from Chotila to Pali in Ambassador car No. RJ19-C-2392, which was being driven by respondent No. 1 Akram Khan. Akram was driving the car rashly & negligently and at about 4:16 PM, while he was crossing the car through unmanned Railway crossing C-21 between Rohat and Kerla, the car collided with the train coming from Jodhpur side. Due to collision, rear side of the car was hit by the train and passengers traveling in the car suffered injuries and some of them succumbed to death. 4. It was duty of respondent No. 1 driver Akram Khan to stop at the Railway crossing point and look towards left & right sides to see whether any training is coming and thereafter only he was to cross the Railway crossing. The accident was reported and an FIR No. 04/1996 was registered at Police Station, Kerla; in which after investigation, charge-sheet was filed against the respondent No. 1 driver Akram Khan. 5. Various claim petitions were filed before Motor Accident Claims Tribunal, Pali for compensation against deaths in aforesaid accident, against respondent No. 1 Akram Khan (driver), respondent No. 2 Mohammed Hanif (owner of car) and the insurance company- the Oriental Insurance Company Ltd. The claimants prayed for compensation of Rs. 14,25,000/- against death of Smt. Hazra in Claim Petition No. 98/2001, compensation of Rs. 5,72,000/- against death of Ms Salma in Claim Petition No. 99/2001, compensation of Rs. 19,50,000/- against death of Sultan Khan in Claim Petition No. 100/2001, compensation of Rs. 19,03,000/- against death of Smt. Guddi in Claim Petition No. 104/2001, compensation of Rs. 14,25,000/- against death of Smt. Hazra in Claim Petition No. 98/2001, compensation of Rs. 5,72,000/- against death of Ms Salma in Claim Petition No. 99/2001, compensation of Rs. 19,50,000/- against death of Sultan Khan in Claim Petition No. 100/2001, compensation of Rs. 19,03,000/- against death of Smt. Guddi in Claim Petition No. 104/2001, compensation of Rs. 5,22,000/- against death of Ms Gulshan in Claim Petition No. 105/2001, compensation of Rs. 9,90,000/- against death of Master Ameer Khan in Claim Petition No. 106/2001, compensation of Rs. 9,03,000/- against death of Smt. Kauzi in Claim Petition No. 107/2001 and compensation of Rs. 20,73,000/- against death of Saleem in Claim Petition No. 108/2001; along with interest at the rate of 18% per annum from the respondents. 6. In the claim case, even after affording sufficient opportunity from 03.08.1999, PF and notices were not filed for summoning respondent No. 1 Akram and therefore, by order dated 20.09.2001, service on respondent No. 1 was closed. Respondent No. 2 Mohammed Hanif filed reply and contended that he was not owner of the vehicle as he has sold the car before the date of accident on 11.12.1995 to Mahant Vivekdas Guru Roopdas through Agreement to Sale and handed over possession of the car to him and therefore, he has been wrongly impleaded as party. 7. The respondent No. 3 insurance company- Oriental Insurance Company Ltd. submitted reply and contended that the vehicle was insured for personal use only but at the time of the accident, the car was being used as taxi. The capacity of the car was 5 persons including driver and the insurance company has received premium only for that capacity, however, at the time of accident, 13 persons were travelling in the car, which was beyond capacity of the car and out of 13 persons, 7 persons died in the accident. On this count, the insurance company denied insurance liability. 8. The insurance company also pleaded that the accident took place at unmanned Railway crossing and had the Railway Department deputed a Chowkidar and also if the Engine driver of the train would have taken proper care & caution, the accident would not have taken place. Under these circumstances, the Railway Department is equally liable for payment of compensation. 9. 8. The insurance company also pleaded that the accident took place at unmanned Railway crossing and had the Railway Department deputed a Chowkidar and also if the Engine driver of the train would have taken proper care & caution, the accident would not have taken place. Under these circumstances, the Railway Department is equally liable for payment of compensation. 9. On the basis of pleadings of the parties, the Tribunal framed 14 issues and after recording evidence of both the parties, passed judgment & award dated 31.07.2002. Being aggrieved by the impugned judgment & award dated 31.07.2002, the claimant-appellants have preferred appeals for enhancement of the compensation awarded by the Tribunal while the insurance company has filed appeal against its liability for payment of compensation awarded by the Tribunal. 10. Perused the impugned judgment & award dated 31.07.2002 and relevant record of the aforesaid claim petitions received from the Tribunal. Appeal No. 793/2002:Imam Khan & another (Claim Case No. 100/2001) 11. The appellant-claimants have raised contention against decision of learned Tribunal on issue No. 4, which relates to assessment of compensation against death of Sultan Khan. It was contended that the amount of compensation assessed and awarded by the learned Tribunal is too low, highly unreasonable and against settled principles of law governing the assessment of quantum of compensation. It was also contended that the deceased was young and healthy person at 25 years of age and he used to earn Rs. 3000/- per month by doing job of folding in a factory. In this respect, AW 4 Imam Khan deposed that his brother used to earn Rs. 3000/- per month. 12. It was contended that the learned Tribunal has seriously erred in determining monthly income of the deceased at Rs. 2000/- only. The learned Tribunal determined monthly income of the deceased from altogether wrong angle and further, the learned Tribunal erred in reducing 50% of income for personal expenses. The findings of the learned Tribunal with regard to income of the deceased was based on conjectures and surmises. In rebuttal, the respondents did not lead any evidence and thus, the findings of the Tribunal on issue No. 4 with regard to monthly income is contrary to law. The Tribunal has also not taken into account future prospects and advancement in life while making the assessment of compensation. 13. In rebuttal, the respondents did not lead any evidence and thus, the findings of the Tribunal on issue No. 4 with regard to monthly income is contrary to law. The Tribunal has also not taken into account future prospects and advancement in life while making the assessment of compensation. 13. It was further contended that the Tribunal has erred in awarding meager amount under the head love & affection and also applied lower multiplier of 13 only. Looking to age of the deceased, higher multiplier deserves to be applied. The Tribunal has not awarded any compensation any compensation against loss of estate. The learned Tribunal has also seriously erred in allowing interest at the rate of 9% per annum only. It was also contended that the Tribunal has allowed interest for the period from 16.05.1996 to 20.09.2001 i.e. the intervening period for service on respondents. The learned Tribunal has also denied compensation under the head 'treatment' of injuries from the date of accident till death. 14. Having considered contentions of the appellant-claimants vis-à-vis findings of the Tribunal and from perusal of relevant record, there is no documentary evidence submitted by the claimants to substantiate amount of expenditure said to be incurred in treatment of injured Sultan Khan, who later succumbed to death and as such, learned Tribunal committed no error in not awarding any compensation under this head. 15. The age of deceased Sultan Khan was around 25 years, as such multiplier of 17 deserves to be applied. The Tribunal has rightly assessed dependency at Rs. 1000/- per month by taking income of deceased Sultan as Rs. 2000/- per month. The Tribunal has awarded Rs. 2500/- to each claimant (Imam Khan and Firoz Khan- brothers) under the heads loss of love & affections, mental suffering and agony. In my considered view, the claimant-appellants deserves to be awarded Rs. 10,000/- each towards loss of 'loss of love & affection' of their brother and Rs. 10,000/- each towards 'mental suffering & agony' by untimely demise of their brother. The compensation of Rs. 5000/- awarded by the learned Tribunal under the head 'expenses on last rites' also deserves to be enhanced to Rs. 10,000/-. 16. Consequently, the appellant-claimants are held entitled to compensation as follows: Loss of income = Rs. 1000 x 12 x 17 Rs. 2,04,000/- Loss of Love & affection = Rs. 10,000 x 2 Rs. The compensation of Rs. 5000/- awarded by the learned Tribunal under the head 'expenses on last rites' also deserves to be enhanced to Rs. 10,000/-. 16. Consequently, the appellant-claimants are held entitled to compensation as follows: Loss of income = Rs. 1000 x 12 x 17 Rs. 2,04,000/- Loss of Love & affection = Rs. 10,000 x 2 Rs. 20,000/- Mental suffering & agony = Rs. 10,000 x 2 Rs. 20,000/- Expenditure on last rites Rs. 10,000/- Total compensation Rs. 2,54,000/- Appeal No. 786/2002 : Peeru Khan (Claim Case No. 105/2001) 17. The appellant-claimant has raised contentions against decision of learned Tribunal on issue No. 6, which relates to assessment of compensation against death of his daughter Ms Gulshan. As per contentions in the claim petition and as per post-mortem report, age of girl child Gulshan was one & half years at the time of accident. 18. The Tribunal has assessed compensation on the basis of notional income and then determined dependency at 50% and further awarded compensation under other heads. However, in view of settled position of law regarding compensation under sec. 163-A of the Act in case of minor children, notional income of Rs. 15000/- per annum and multiplier of 15 deserves to be applied. Consequently, the appellant-claimant is held entitled to compensation of Rs. 15,000 x 15= Rs. 2,25,000/- in this case. Appeal No. 787/2002 : Ajij Khan & another (Claim Case No. 99/2001) 19. The appellant-claimants have raised contentions against decision of learned Tribunal on issue No. 3, which relates to assessment of compensation against death of his daughter Ms Salma. As per post-mortem report, age of girl child Salma was 5 years at the time of accident. 20. The Tribunal has assessed compensation on the basis of notional income and then determined dependency after deducting one-third thereof and further awarded compensation under other heads. However, in view of settled position of law regarding compensation under sec. 163-A of the Act in case of minor children, notional income of Rs. 15000/- per annum and multiplier of 15 deserves to be applied. Consequently, the appellant-claimants are held entitled to compensation of Rs. 15,000 x 15= Rs. 2,25,000/- in this case. Appeal No. 791/2002: Smt. Rajiya & another (Claim Case No. 108/2001) 21. 163-A of the Act in case of minor children, notional income of Rs. 15000/- per annum and multiplier of 15 deserves to be applied. Consequently, the appellant-claimants are held entitled to compensation of Rs. 15,000 x 15= Rs. 2,25,000/- in this case. Appeal No. 791/2002: Smt. Rajiya & another (Claim Case No. 108/2001) 21. The appellant-claimants have raised contentions against decision of learned Tribunal on issue No. 9, which relates to assessment of compensation against death of Saleem, husband & father of claimants. As per post-mortem report, age of deceased Saleem was 27 years at the time of accident. He was stated to be earning Rs. 3000/- per month by doing work of folding in a factory. 22. The Tribunal has assessed income of deceased Saleem at Rs. 2000/- and after deducting Rs. 700/- towards his personal expenses, held loss of income to dependents at Rs. 1300/- per month. The Tribunal has applied multiplier of 13 for computation of compensation. 23. In view of age of the deceased, multiplier of 16 deserves to be applied. The assessment of income of the deceased deserves no interference. The Tribunal has awarded Rs. 2500/- and 10,000/- respectively to widow Smt. Rajiya and her minor daughter Anju under heads of loss of consortium, love & affection, mental & physical agony. The claimant-appellants deserve compensation of Rs. 10,000/- each against loss of consortium, love & affection, and further Rs. 10,000/- each against mental & physical agony. The compensation towards expenses on last rites also deserves to be enhanced to Rs. 10,000/- from Rs. 5000/- awarded by the Tribunal. 24. Accordingly, the appellant-claimants are held entitled for following compensation: Loss of income = Rs. 1300 x 12 x 16 Rs. 2,49,600/- Loss of Love & affection = Rs. 10,000 x 2 Rs. 20,000/- Mental suffering & agony = Rs. 10,000 x 2 Rs. 20,000/- Expenditure on last rites Rs. 10,000/- Total compensation Rs. 2,99,600/- 25. The appellant-claimant has raised contentions against decision of learned Tribunal on issue No. 7, which relates to assessment of compensation against death of Master Ameer Khan. From contentions of claimants and as per postmortem report, age of the deceased was 4 years at the time of accident. 26. The Tribunal has assessed compensation on the basis of notional income and then determined dependency after deducting one-third thereof and further awarded compensation under other heads. From contentions of claimants and as per postmortem report, age of the deceased was 4 years at the time of accident. 26. The Tribunal has assessed compensation on the basis of notional income and then determined dependency after deducting one-third thereof and further awarded compensation under other heads. However, in view of settled position of law regarding compensation under sec. 163-A of the Act in case of minor children, notional income of Rs. 15000/- per annum and multiplier of 15 deserves to be applied. Consequently, the appellant-claimants are held entitled to compensation of Rs. 15,000 x 15= Rs. 2,25,000/- in this case. Appeal No. 795/2002:Peeru Khan & another (Claim Case No. 107/2001) 27. The appellant-claimant has raised contentions against decision of learned Tribunal on issue No. 8, which relates to assessment of compensation against death of Smt. Kozi. From contentions of claimants and as per postmortem report, age of the deceased was 23 years and she used to do job of sewing besides house work. The Tribunal has taken her income to be Rs. 1500/- per month and after deducting Rs. 500/- against personal expenses, held loss of income at Rs. 1000/- per month and has adopted multiplier of 15. 28. In view of age of the deceased, multiplier of 17 deserves to be applied. Notwithstanding income from any job work, she being a housewife, her notional income deserves to be taken at Rs. 2500/- per month, out of which 1/3rd may be deducted against her own expenses. 29. The Tribunal has assessed compensation of Rs. 2500/- to husband Peeru Khan and Rs. 10,000/- to son Javed towards loss of consortium, loss of love & affection, mental & physical agony. Both claimant-appellants deserve to be granted compensation of Rs. 10,000/- each in the head of loss of love & affection and consortium and further, Rs. 10,000/- each in the head of mental & physical agony. The compensation towards expenses on last rites also deserves to be enhanced to Rs. 10,000/-, from Rs. 5000/- awarded by the Tribunal. Accordingly, the appellant-claimants are held entitled for following compensation: Loss of income = Rs. 1700 x 12 x 17 Rs. 3,46,800/- Loss of Love & affection = Rs. 10,000 x 2 Rs. 20,000/- Mental suffering & agony = Rs. 10,000 x 2 Rs. 20,000/- Expenditure on last rites Rs. 10,000/- Total compensation Rs. 3,96,800/- 30. 5000/- awarded by the Tribunal. Accordingly, the appellant-claimants are held entitled for following compensation: Loss of income = Rs. 1700 x 12 x 17 Rs. 3,46,800/- Loss of Love & affection = Rs. 10,000 x 2 Rs. 20,000/- Mental suffering & agony = Rs. 10,000 x 2 Rs. 20,000/- Expenditure on last rites Rs. 10,000/- Total compensation Rs. 3,96,800/- 30. The appellant-claimant has raised contentions against decision of learned Tribunal on issue No. 5, which relates to assessment of compensation against death of Smt. Guddi. As per post-mortem report, age of the deceased was 25 years and she was stated to be doing sewing work besides house work. 31. The Tribunal has taken her income to be Rs. 1500/- per month and after deducting Rs. 500/- against personal expenses, held loss of income at Rs. 1000/- per month and has adopted multiplier of 15. 32. In view of age of the deceased, multiplier of 16 deserves to be applied. Notwithstanding income from any job work, the deceased being a housewife, her notional income deserves to be taken at Rs. 2500/- per month, out of which 1/3rd may be deducted against her own expenses. 33. The Tribunal has assessed compensation of Rs. 10,000/- each to husband Anvar Khan and son Shahrukh towards loss of consortium, loss of love & affection, mental & physical agony. Both claimant-appellants deserve to be granted compensation of Rs. 10,000/- each in the head of loss of love & affection and consortium and further, Rs. 10,000/- each in the head of mental & physical agony. The compensation towards expenses on last rites also deserves to be enhanced to Rs. 10,000/-, from Rs. 5000/- awarded by the Tribunal. 34. Accordingly, the appellant-claimants are held entitled for following compensation: Loss of income = Rs. 1700 x 12 x 16 Rs. 3,26,400/- Loss of Love & affection = Rs. 10,000 x 2 Rs. 20,000/- Mental suffering & agony = Rs. 10,000 x 2 Rs. 20,000/- Expenditure on last rites Rs. 10,000/- Total compensation Rs. 3,76,400/- Appeal No. 798/2002: Rehman Khan (Claim Case No. 98/2001) 35. The appellant-claimant has raised contentions against decision of learned Tribunal on issue No. 2, which relates to assessment of compensation against death of Smt. Hazra. From contentions of claimants and per postmortem report, age of the deceased was 45 years and she stated to be doing sewing & kashida-art job work besides house work. 36. The appellant-claimant has raised contentions against decision of learned Tribunal on issue No. 2, which relates to assessment of compensation against death of Smt. Hazra. From contentions of claimants and per postmortem report, age of the deceased was 45 years and she stated to be doing sewing & kashida-art job work besides house work. 36. In view of age of the deceased, the Tribunal has rightly adopted multiplier of 13, which deserves no interference. Notwithstanding said income from any job work, the deceased being a housewife, her notional income deserves to be taken at Rs. 2500/- per month, out of which half amount may be deducted towards her own expenses. 37. The Tribunal has assessed compensation of Rs. 10,000/- to husband Rehman Khan towards loss of consortium, loss of love & affection, mental & physical agony. The claimant-appellant deserve to be granted compensation of Rs. 10,000/- in the head of loss of love & affection and consortium and further, Rs. 10,000/- in the head of mental & physical agony. The compensation towards expenses on last rites also deserves to be enhanced to Rs. 10,000/-, from Rs. 5000/- awarded by the Tribunal. 38. Accordingly, the appellant-claimant is held entitled for following compensation: Loss of income = Rs. 1250 x 12 x 13 Rs. 1,95,000/- Loss of Love & affection Rs. 10,000 Mental suffering & agony Rs. 10,000 Expenditure on last rites Rs. 10,000/- Total compensation Rs. 2,25,000/- Appeal No. 766/2002: Oriental Insurance Co. Ltd. v. Anwar Khan & ors. (Claim Case No. 104/2001) Appeal No. 767/2002: Oriental Insurance Co. Ltd. v. Smt. Rajiya & ors. (Claim Case No. 108/2001) Appeal No. 768/2002: Oriental Insurance Co. Ltd. v. Imam Khan & ors. (Claim Case No. 100/2001) Appeal No. 769/2002: Oriental Insurance Co. Ltd. v. Peeru Khan & ors (Claim Case No. 105/2001) Appeal No. 770/2002: Oriental Insurance Co. Ltd. v. Ajij Khan (Claim Case No. 99/2001) Appeal No. 766/2002: Oriental Insurance Co. Ltd. v. Rahman Khan (Claim Case No. 98/2001) 39. By way of these appeals, the insurance company has contended that in their written statement the liability of the insurance company has been denied, the offending car being insured by "Act Only Policy" and no premium was taken with respect to passengers sitting in the car. The learned Tribunal has erred in law as well as in facts while deciding issue No. 13. The learned Tribunal has erred in law as well as in facts while deciding issue No. 13. The authorities cited by the insurance company with respect to non-liability of the insurer were not at all considered in connection to aforesaid ground that Third-Party policy/Act only policy does not cover liability of passengers i.e. occupants of the vehicle. 40. In relation to above, it is contended that the condition of "Act Only Policy" and "Comprehensive Policy" relating to vehicle cannot be applied together in view of terms & conditions of Third-Party insurance viz.: "A" Policy for Act Liability - Whereas the Insured by a proposal and declaration dated as stated in the Schedule which shall be the basis of this contract and is deemed to be incorporated herein has applied to the Company for the insurance hereinafter contained and has paid or agreed to pay the premium as consideration for such insurance in respect of events occurring during the Period of Insurance. Thus, the insurance policy covers occupants of the insured vehicle only where extra premium with regard to the coverage is charged. 41. The appellant-insurance company has placed reliance on the judgment reported in 2001 AIR SCW 3910: Dr TV Jose v. Chacko PM @ Thankachan & others wherein the view taken by the Apex Court in 1988 (1) SCC 626 : National Insurance Co. Ltd. v. Jugal Kishore is confirmed and it was held that the terms & conditions of comprehensive policy cannot be extended to third party (Act Only policy). As such, in the aforesaid case, wherein it is admitted that the deceased were passengers in the offending car, the insurance company cannot be held liable in view of third party policy i.e. Act Only policy and hence, the impugned judgment & award deserves to be set aside qua liability of the appellant-insurance company. 42. In the context of contentions raised by the appellant, perused the Insurance policy Ex. A1. On top of the insurance policy, it is written: "1. 42. In the context of contentions raised by the appellant, perused the Insurance policy Ex. A1. On top of the insurance policy, it is written: "1. Subject to the Limit of liability as laid down in the Motor Vehicles Act the Company will indemnify the insured in the event of accident caused by or arising out of the use of the Motor Vehicle anywhere in India against all sums including claimant's cost and expenses which the Insured shall become legally liable to pay in respect of death of or bodily injury to any person and or damage to any property of Third Party. 43. It is not in dispute that the vehicle in question was insured with the insurance company under Act Only policy as private vehicle. The Apex Court in National Insurance Company Ltd. v. Balakrishnan: (2013) 1 SCC 731 held as under: In view of the aforesaid factual position, there is no scintilla of doubt that a "comprehensive/package policy" would cover the liability of the insurer for payment of compensation for the occupant in a car. There is no cavil that an "Act Policy" stands on a different footing from a "Comprehensive/Package Policy". As the circulars have made the position very clear and the IRDA, which is presently the statutory authority, has commanded the insurance companies stating that a "Comprehensive/Package Policy" covers the liability, there cannot be any dispute in that regard. We may hasten to clarify that the earlier pronouncements were rendered in respect of the "Act Policy" which admittedly cannot cover a third party risk of an occupant in a car. But, if the policy is a "Comprehensive/Package Policy", the liability would be covered. 44. Similarly, in the case of United India Insurance Co. Ltd. v. Tilak Singh & others: 2006 ACJ 1441 the Apex Court held that the persons sitting in private car, even if gratuitous passengers, are not 'third party' and the insurer is not liable, owner of the vehicle only is liable. 45. In Singh Ram v. Nirmala & others: AIR 2018 SC 1290 , as regard insurer's liability the Apex Court upheld decision in National Insurance Co. Ltd. v. Swaran Singh: AIR 2004 SC 1531 wherein direction made by the Tribunal to the insurer to pay the compensation and to recover it from the owner of the offending vehicle was upheld. 46. In Singh Ram v. Nirmala & others: AIR 2018 SC 1290 , as regard insurer's liability the Apex Court upheld decision in National Insurance Co. Ltd. v. Swaran Singh: AIR 2004 SC 1531 wherein direction made by the Tribunal to the insurer to pay the compensation and to recover it from the owner of the offending vehicle was upheld. 46. In view of above discussion, the deceased persons being not 'third party' and the offending car being insured under "Act Only policy", the insurance company is absolved of the liability to pay compensation. 47. Consequently, appeals of claimant-appellants for enhancement of award of compensation are allowed, as aforesaid. The claimant-appellants shall be entitled to difference of the compensation amount with interest at the rate of 6% per annum from the date of award. 48. The appeals filed by the appellant-insurance company are also allowed and the insurance company is held not liable to pay the compensation. The respondent No. 2 owner of the vehicle is held liable for payment of the compensation. 49. However, in the fitness of things, the insurance company is directed to make payment of compensation as aforesaid to the claimant-appellants and thereafter, it shall be entitled to recover the same from the owner respondent No. 2. 50. The award dated 31.07.2002 accordingly stands modified in aforesaid terms.