JUDGEMENT AND ORDER : Feeling dissatisfied with the judgment and award dated 23.05.2016 passed by the learned Member, Motor Accident Claims Tribunal, Court No.3 West Tripura, Agartala in Case No. TS. (MAC) 181 of 2014, the appellant-Insurance Company has preferred this appeal. 2. The background facts of the case in a nutshell are :- One Sukhendu Sarkar and his mother, Namita Sarkar died in a motor accident when they were travelling by a moter cycle on 01.09.2013 due to the rash and negligent driving of one Commander Jeep bearing No. TR.01/A-3324 which was insured with the appellant-United India Insurance Company Limited. The accident is admitted. Due to their death, Sishir Sarkar, who is the father of Sukhendu Sarker and husband of Namita Sarkar, filed a claim application along with Sri Sukanta Sarkar the son of Namita Sarkar and the brother of Sukhendu Sarkar under Section 166 of the M.V. Act. The learned Tribunal has awarded Rs. 34,15,000/-(Rupees thirty four lakhs fifteen thousand) along with interest @ 9 % per annum from the date of institution of the claim application before the Motor Accident Claims Tribunal. 3. The main challenge in this appeal is that the father and brother i.e., the claimants of the claim application herein are not dependent on the deceased’s and they are only entitled to the loss of estate. 4. Mr. A. Gon Chowdhury, learned counsel appearing for the appellant submits that none of the claimants are dependent on the income of the deceased. The deceased Sukhendu Sarkar was the son and elder brother of the claimants respectively and was a student of engineering college and the mother Namita Sarkar was a house wife, so they are only entitled to loss of estate, and as such there is no loss of dependency. 5. Appearing on behalf of the claimant-respondents Mr. P. Roy Barman learned counsel submits that the appeal is not maintainable and it is liable to be dismissed. 6. The learned counsel for the claimants-respondent further submits that the claimant-respondent No.1 has lost his young son aged 22 years as well as his wife and the claimant-respondent No.2 has lost his mother and their death has ceased away the valuable support, love, care and affection as well as the benefit of services from the claimants. 6. The learned counsel for the claimants-respondent further submits that the claimant-respondent No.1 has lost his young son aged 22 years as well as his wife and the claimant-respondent No.2 has lost his mother and their death has ceased away the valuable support, love, care and affection as well as the benefit of services from the claimants. The learned counsel has further submitted that being a student of M. Tech engineering course, the deceased Sukhendu Sarkar would have completed Master of Engineering Degree and the claimant No.1 being the father would have dependent on deceased Sukhendu Sarkar for his emotional and economic support in his old age. 7. From the evidence of the claimant No.1 this Court has noticed that none of the claimants were dependent on the deceased Sukhendu Sarkar. 8. Now dealing with the question of maintainability of the present appeal, I may refer a decision in United India Insurance Co. Ltd Vs. Shila Dutta and ors. reported in (2011) 10 SCC 509 wherein Apex Court has clarified where the insurance company is a respondent in an appeal it has right to challenge the award on all grounds without being restrained to the grounds available under Section 149(2) of the Act. It is only when the Insurance Company is a noticee then it will have to seek permission of the Court either to defend the proceeding under Section 170 or be impleaded as a respondent and then it can challenge the award on all grounds. Objection raised by Mr. P. Roy Barman, learned counsel is totally inapplicable in the present case because the Insurance Company is raising a statutory defence which was available to it under Section 149(2) of the Act being impleaded as one of the O.Ps/respondents in the claim application as well as in this appeal. Therefore, I repel the preliminary objection in regard to the maintainability of the present appeal as raised by learned counsel. 9. It takes me to go forward to the meat of the matter as to whether claimant-respondents are dependent on the deceased. From a bare reading of the evidence led by claimant-respondents, this Court is of the opinion that claimant-respondents were not at all dependent on the income of the deceased. So, they are not entitled to get any compensation due to loss of dependency. From a bare reading of the evidence led by claimant-respondents, this Court is of the opinion that claimant-respondents were not at all dependent on the income of the deceased. So, they are not entitled to get any compensation due to loss of dependency. This aspect is further fortified by the Judgment of this Court pronounced by His lordship the Chief Justice Deepak Gupta, (as he then was), passed in the case of Oriental Insurance Co. Ltd. Vs. Sri Tushar Kanti Mahajan and ors. reported in 2017 1 TLR 368 wherein it has been held : “Where the claim by the legal representatives of the deceased who were not dependants of the deceased, then the basis for award of compensation is the loss to the estate, that is, the loss of savings by the deceased. A conventional sum for loss of expectation of life is added” Emphasizing on this principle it is observed that :- “Therefore, it can now be taken to be the law that where the claim is made by the legal representatives of the deceased, who were not dependents at the time of the accidents, there is no question of loss dependency; what can be awarded is the loss to the estate, that is, the loss of savings by the deceased. The principle for assessing the loss of estate is also enunciated in A. Manavalagan (Supra), the relevant portions whereof are in the following terms : “(iv) The procedure for determination of loss to estate is broadly the same as the procedure for determination of the loss of dependency. Both involve ascertaining the multiplicand and capitalising it by multiplying it by an appropriate multiplier. But, the significant difference is in the figure arrived at as multiplicand in cases where the claimants who are dependants claim loss of dependency, and in cases where the claimants who are not dependents claim loss to estate. The annual contribution to the family constitutes the multiplicand in the case of loss of dependency, whereas the annual savings of the deceased becomes the multiplicand in the case of loss to estate. The method of selection of multiplier is however the same in both cases.? 20. The annual contribution to the family constitutes the multiplicand in the case of loss of dependency, whereas the annual savings of the deceased becomes the multiplicand in the case of loss to estate. The method of selection of multiplier is however the same in both cases.? 20. The following illustrations with reference to the case of a deceased who was aged 40 years with a monthly income of Rs.9000/- will bring out the difference between cases where claimants are dependents and cases where claimants are not dependents. (i) * * * (ii) * (iii) (iv) If the deceased is survived by an educated employed wife earning an amount almost equal to that of her husband and if each was maintaining a separate establishment, the question of 'loss of dependency' may not arise. Each will be spending from his/her earning towards his living and personal expenses. Even if both pool their income and spend from the common income pool, the position will be the same. In such a case the amount spent for personal and living expenses by each spouse from his/her income will be comparatively higher, that is three-fourth of his/her income. Each would be saving only the balance, that is one fourth (which may be pooled or maintained separately). If the saving is taken as one-fourth (that is 25%), the loss to the estate would be Rs.2250/- per month or Rs.27000/- per annum, By adopting the multiplier of 14, the loss to estate will be Rs. 3,78,000/-. Note : The position would be different if the husband and wife, were both earning, and living together under a common roof, sharing the expenses. As stated in BURGESS v. FLORENCE NIGHTINGALE HOSPITAL 1955(1) Q.B.349, 'when a husband and wife, with separate incomes are living together and sharing their expenses, and in consequence of that fact, their joint living expenses are less than twice the expenses of each one living separately, then each, by the fact of sharing, is conferring a benefit on the other'. This results in a higher savings, say, one-third of the income; In addition each spouse loses the benefit of services rendered by the other in managing the household, which can be evaluated at say Rs.1,000/- per month or Rs.12,000/- per annum). This results in a higher savings, say, one-third of the income; In addition each spouse loses the benefit of services rendered by the other in managing the household, which can be evaluated at say Rs.1,000/- per month or Rs.12,000/- per annum). In such a situation, the claimant (surviving spouse) will be entitled to compensation both under the head of loss of dependency (for loss of services rendered in managing the household) and loss to estate (savings to an extent of one-third of the income that is Rs.3,000/- per month or Rs. 36000/- per annum). Therefore, the loss of dependency would be 12000 x 14=168,000/- and loss to estate would be 36000 x 14=504,000/-. In all Rs.6,72,000/- will be the compensation. (Italics mine) (v) * * * Though the quantum of savings will vary from person to person, there is a need to standardise the quantum of savings for determining the loss to estate (where the claimants are not dependants) in the absence of specific evidence to the contrary. The quantum of savings can be taken as one-third of the income of the deceased where the spouses are having a common Page 16 of 19 establishment and one-fourth where the spouses are having independent establishments. The above will apply where the family consists of non-dependant spouse/children/parents. Where the claimants are non-dependant brothers/sisters claiming on behalf of the estate, the savings can be taken as 15% of the income. The above percentages, one of course, subject to any specific evidence to the contrary led by the claimants.” 10. Following the principles as laid down above, I am of the opinion that the claimant No.1 is entitled to loss of estate. 11. In the case in hand, the learned Tribunal has assessed the income of the deceased Sukhendu Sarkar, had he been alive at Rs. 20,000/-per month at the beginning of his career. Since Sukhendu Sarkar was a bachelor at the time of accident, the learned Tribunal has deducted 50% of his income. So, income of the deceased Sukhendu comes to Rs. 10,000/- per month. Considering the future prospects, the learned Tribunal added 50% for loss of dependency. Ultimately comes to Rs.15,000/- (10,000+5,000= 15,000/-) per month. Since Sukhendu Sarkar was a bachelor at the time of accident, the learned Tribunal has deducted 50% of his income. So, income of the deceased Sukhendu comes to Rs. 10,000/- per month. Considering the future prospects, the learned Tribunal added 50% for loss of dependency. Ultimately comes to Rs.15,000/- (10,000+5,000= 15,000/-) per month. If that be so, the quantum of saving for determining the loss of estate could be taken 1/3rd of the income of the deceased i.e., Rs.5,000/-, i.e., Rs.5000x12= Rs.60,000/- per annum, to it shall be added Rs.3,200/- which is the loss of benefit of service rendered by the deceased in managing the household including his father. 12. There is no dispute in regard to the age of the deceased, i.e., 22 years, at the time of accident. In this case, the multiplier to be adopted in terms of Sarala Verma Vs DTC reported in (2009) 6 SCC 121 will be 18, therefore, the loss of services would be Rs.3,200/- per month or Rs. 3,200x12= Rs. 38,400/- per month which multiplied by 18 comes to (Rs. 38,400 x 18 = Rs 6,91,200/-). 13. For loss to estate (saving to an extent of 1/3rd of the income) i.e., Rs. 60,000/- per annum, which when multiplied by 18 it works out to Rs. 10,80,000/-(Rupees ten lakhs eighty thousand only), thus, the claimant-respondent No.1 is entitled to compensation of Rs.6,91,200/- + Rs.10,80,000/- = Rs.17,71,200/-. 14. The claimant-respondent No.1 Sishir Sarkar being the husband has also lost benefit of services that would have been rendered by his deceased wife Namita Sarkar in managing the household but no compensation has been awarded by the learned Tribunal. It has come to the notice of the Court that the Tribunal has proceeded in the manner as if the claim application has been filed by the claimant-respondent only for the death of his son-Sukhendu Sarkar. 15. According to this Court, it is an error apparent on the face of the award which might have been caused due to over sight or inadvertence and in my considered opinion, such inadvertence error has resulted in grave miscarriage of justice and must be corrected by applying the doctrine of ex debito justitiae to prevent abuse of the process, even in the absence of specific provision, such power inheres in every Court or Tribunal so that parties to the lis should not be deprived from their legitimate claims or reliefs. Since the error as stated above, has come to the notice of this Court, the appeal being a continuation of the proceeding, in my considered view, a party cannot be made to suffer on account of an act of the Court considering the Motor Vehicles Act being a beneficial legislation. It is further well settled that justice should not only be done but manifestly seen to be done. 16. It is well recognized maxim of equity, namely actus curiae neminim gravabit which means an act of the Court shall prejudice no man. This maxim is founded upon justice and good sense which serves as a safe and certain guide for the administration of law. 17. In my approach, I can also draw strength from the provisions of Order XL1 Rule 33 of the Code of Civil Procedure, 1908 which is reproduced below:- ”33. Power of Court of Appeal.- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees as, passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees.“ 18. The hon’ble Supreme Court in Mahant Dhangir and Anr. Vs. Madan Mohan and Ors. MANU/SC/0039/1987:-[1988]1 SCR 679 in the following words : “The sweep of the power under Rule 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The appellate court could pass any decree or order which ought to have been passed in the circumstances of the case. The appellate Court could also pass such other decree or order as the case any require. The appellate court could pass any decree or order which ought to have been passed in the circumstances of the case. The appellate Court could also pass such other decree or order as the case any require. The words “as the case may require” used in Rule 33 of Order 41 have been put in wife terms to enable the appellate court to pass any order or decree to meet the ends of justice. What then should be the constraint. We do not find any. We are not giving any liberal interpretation. The rule itself is liberal enough. The only constraint that we could see, may be these: That the parties before the lower court should be there before the appellate Court. The Question raised must properly arise out of the judgment of the lower Court. If these two requirements are there, the appellate Court could consider any objection against any party to the appeal. It is true that the power of the appellate Court under Rule 33 is discretionary. But it is a proper exercise of judicial discreation to determine all questions urged in order to render complete justice between the parties. The Court should not refuse to exercise that discretion on mere technicalities.” 19. On close reading of the above proposition of law, according to this Court, the essential elements as laid down in the provisions of Order XLI Rule 33 are satisfied in the case at hand. Further, the claimants, the owner of the vehicle as well as the appellant-insurance Company are present and have been heard, and the judgment passed by the learned Tribunal is under scan before this Court. As such, in my considered view when circumstances exist which necessitates the exercise of discretionary power conferred upon the Court, the Court should not restrain itself to exercise its this power 20. Keeping in mind, the principles as discussed above, the claimant-respondent No.1 being the husband is entitled to receive compensation due to loss of benefit of services which would have been rendered by the deceased Namita Sarkar had she been alive, which is quantified as Rs. 1,000/-. Thus, the compensation under the head of loss of services which would have been rendered for rest of his life at Rs.1,000/- per month or Rs. 1,000 x 12= Rs. 12,000/- per annum. 1,000/-. Thus, the compensation under the head of loss of services which would have been rendered for rest of his life at Rs.1,000/- per month or Rs. 1,000 x 12= Rs. 12,000/- per annum. From the deposition it is revealed that the age of father at the time of evidence before the Tribunal was of 50 years and so, it is expected and on guess, the deceased wife might be within the age group of 46 to 50 years and in view of that the multiplier in terms of Sarala Verma(Supra) is 13 and amount comes to Rs.12,000 x 13 = Rs. 1,56,000/-. Therefore, the compensation in favour of the claimant-respondent No.1 would be Rs.17,71, 200/- + Rs.1,56,000/- = Rs.19,27,200/-. The compensation quantified against other heads i.e., loss of love and affection at Rs.1,00,000/- and funeral expenses at Rs.25,000/- as awarded by the learned Tribunal remains unaltered and it will come to Rs. 1,25,000/-. So total compensation in favour of claimant-respondent No.1 comes to Rs.19,27,200/- + Rs.1,25,000/-=Rs.20,52,000/- 21. Again, this Court has also not lost its sight that the claimant-respondent No.2 being the son has lost his mother- Namita Sarkar at a very young age. But the Tribunal has not awarded any compensation to the claim of the claimant-respondent No.2 due to some inadvertence. True it is, he was not dependent on his deceased mother, but, he has lost the benefit of services his mother would have rendered towards him had she been alive. The son/claimant-respondent No.2 has not preferred any appeal against the judgment and award of the Tribunal, but applying the same analogy as discussed above this Court is inclined to award compensation in favour of the claimant-respondent No.2. However, it would be limited to the extent of loss of benefit of services his mother would have been rendered for him had she been alive and it is quantified at Rs.1,000/- per month i.e., Rs.12,000/- per annum. As determined above, the age of the deceased mother falls within the age group of 46 to 50 years and in that case, the multiplier in terms of Sarala Verma(Supra) would be Rs.12,000 x 13 = Rs. 1,56,000/-. Accordingly, the claimant-respondent No.2 being the son of the deceased mother-Namita Sarkar will be entitled to compensation of Rs. 1,56,000/-, that apart, he is further entitled to Rs. 50,000/- out of loss of love and affection for untimely death of his mother. 22. 1,56,000/-. Accordingly, the claimant-respondent No.2 being the son of the deceased mother-Namita Sarkar will be entitled to compensation of Rs. 1,56,000/-, that apart, he is further entitled to Rs. 50,000/- out of loss of love and affection for untimely death of his mother. 22. In the light of the above observation, the respondent-claimant No.1 i.e., the father is entitled to Rs. 20,52,000/- (Rupees twenty lakhs fifty two thousand only) and the claimant-respondent No.2 being the son of the deceased Namita Sarkar is entitled to Rs. 2,06,000/-(Rupees two lakhs six thousand only). The above amount shall carry an interest @ 7 % per annum from the date of filing of the claim application till realization. It is made clear, that the entire amount which is quantified in favour of the claimant-respondent No.2 along with interest shall be kept in a fixed deposit scheme for at least three years. 23. The other directions passed by the learned Member, Motor Accident Claims Tribunal do not call for any interference. 24. With the aforementioned directions, the appeal is allowed in part as indicted above and stands disposed. Send down back the L.C.Rs.