JUDGMENT : Jyotsna Rewal Dua, J. Feeling aggrieved against the award, dated 22.03.2018, passed by learned Motor Accident Claims Tribunal (II), Una, District Una, H.P., whereby a compensation of Rs.51,88,000/- was awarded in favour of claimants, along with interest @ 9% per annum, and the liability thereof was fastened upon the appellant-National Insurance Company Ltd. (hereinafter referred to as the "insurer" in short), the insurer has preferred the instant appeal. The parties, hereinafter, are referred to as they were before learned Tribunal below. 2. Facts. The facts leading to filing of instant appeal are thus:- 2(i). Claimants No.1 and 2, are wife and minor daughter of deceased Ashok Kumar. claimants No.3 and 4, are his mother and father. 2(ii). Deceased Ashok Kumar, aged 31 years, was serving as Sepoy in Indian Army. On 03.12.2012, he was going to Village Riri Kuthera, Tehsil Jaswan, District Kangra, H.P., where claimants No.1 and 2, i.e. his wife and minor daughter, resided in a rented accommodation. At around 09.00 p.m., when Shri Ashok Kumar reached near Riri Kuthera Society Building, a Tractor bearing registration No.HP-36-6119, owned by respondent No.1 and driven by respondent No.2, came from behind, i.e. Sansarpur Terrace side and hit Ashok Kumar, who fell-down and died on the spot. The police officials of Police Post, Sansarpur-Terrace, took the deceased to Civil Hospital, Dehra, District Kangra, H.P., where his post mortem was conducted on 04.12.2012. FIR No.184, was registered against respondent No.2/driver on 04.12.2012, under Section 304- A IPC read with Sections 184 and 187 of the Motor Vehicles Act, at Police Station, Dehra. Claim petition, seeking compensation of Rs.40,00,000/-, was filed under Section 166 of the Motor Vehicles Act. 2(iii). Claim petition was resisted by respondents No.1 and 2 (owner and driver) as well as by respondent No.3 (insurer), before learned Tribunal, by filing their separate reply(s). Respondents No.1 and 2, i.e. owner and driver, respectively, in their reply, contended that:- Cr. Case No.61-II/2013, titled State versus Surinder Singh, registered on the basis of FIR No.184, dated 04.12.2014, was decided on 31.12.2013, resulting in acquittal of respondent No.2. It was also asserted that respondent No.2, even otherwise, was not driving the tractor in question and that he had been falsely implicated in the case. 2(iv), Respondent No.3/insurer took the stand that driver of the tractor did not have a valid and effective driving licence. It was also asserted that respondent No.2, even otherwise, was not driving the tractor in question and that he had been falsely implicated in the case. 2(iv), Respondent No.3/insurer took the stand that driver of the tractor did not have a valid and effective driving licence. The vehicle was being plied in violation of terms and conditions of Insurance Policy. 2(v). The parties led oral as well as documentary evidence. Learned Tribunal, allowed the claim petition, by awarding compensation of Rs.51,88,000/-, along with interest @ 9%, from the date of filing of claim petition, till the deposit of awarded amount. The liability for paying the compensation was fixed on the insurer. The parents of deceased Ashok Kumar have been held entitled to 20% share each, in the awarded amount, whereas the wife and minor daughter of deceased Ashok Kumar held entitled to 45% and 35% share, respectively, in the awarded amount of compensation. 3. (I). Feeling aggrieved against the impugned award, the instant appeal has been preferred by the insurer. 3(ii). I have heard learned counsel for the parties and carefully gone through the entire case record. Mr. Ashwani K. Sharma, learned senior counsel for the appellant-insurer, has raised the following points for adjudication:- (a). Whether the rashness and negligence on the part of respondent No.2/ driver, is proved on record?; (b). Whether quantum of compensation has been correctly determined by learned Tribunal? 3(iii). Rashness and negligence on the part of respondent No.2/driver. Learned senior counsel for the appellant/insurer, contended that claimants have not proved rashness and negligence on part of respondent No.2/driver. 3(iii)(a). FIR was not lodged by the claimants. First contention of learned senior counsel for the appellant/insurer is that FIR Ext.PX was not lodged by the claimants themselves, but, was lodged by HC Kamlesh Kumar, who was not produced in the witness box. Therefore, FIR in question, could not be relied upon to prove that accident was result of rash and negligent driving of respondent No.2/driver. FIR was lodged by police personnel, who reached the spot. Lodging of FIR Ext.PX, against respondent No.2/driver, by HC Kamlesh Kumar, will not make any difference to the claim petition. It is not the case of the insurer that deceased Ashok Kumar, the bread earner of the family, had not died after meeting the accident on 03.12.2012. FIR was lodged by police personnel, who reached the spot. Lodging of FIR Ext.PX, against respondent No.2/driver, by HC Kamlesh Kumar, will not make any difference to the claim petition. It is not the case of the insurer that deceased Ashok Kumar, the bread earner of the family, had not died after meeting the accident on 03.12.2012. In case, the insurer had any doubt in respect of lodging of FIR and its contents, it was open for the insurer to summon HC Kamlesh Kumar in the witness box to examine him to this effect. Therefore, there is no gain saying, at this belated stage, in taking up the plea by the insurer that FIR was not lodged by the claimants; and that HC Kamlesh Kumar was not examined. The accident had occurred on 03.12.2012, around about 09.00 p.m., at a place Riri Kuthera Society Building, when the claimants were not there on the spot. Insurer has not denied existence of FIR. It would be apt to refer to, titled Bimla Devi and Ors. Versus Himachal Road Transport Corpn. and Ors., (2009) 13 SCC 530 as under:- "11. While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a Tribunal stricto sensu is not bound by the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. It is true that occurrence of an accident having regard to the provisions contained in Section 166 of the Act is a sine qua non for entertaining a claim petition but that would not mean that despite evidence to the effect that death of the claimant's predecessor had taken place by reason of an accident caused by a motor vehicle, the same would be ignored only on the basis of a post mortem report vis-'-vis the averments made in a claim petition. 12. The deceased was a Constable. Death took place near a police station. The post mortem report clearly suggests that the deceased died of a brain injury. The place of accident is not far from the police station. It is, therefore, difficult to believe the story of the driver of the bus that he slept in the bus and in the morning found a dead body wrapped in a blanket. The post mortem report clearly suggests that the deceased died of a brain injury. The place of accident is not far from the police station. It is, therefore, difficult to believe the story of the driver of the bus that he slept in the bus and in the morning found a dead body wrapped in a blanket. If the death of a constable has taken place earlier, it is wholly unlikely that his dead body in a small town like Dharampur would remain undetected throughout the night particularly when it was lying at a bus stand and near a police station. In such an event, the court can presume that the police officers themselves should have taken possession of the dead body. 13. The learned Tribunal, in our opinion, has rightly proceeded on the basis that apparently there was absolutely no reason to falsely implicate the respondent Nos.2 and 3. Claimant was not at the place of occurrence. She, therefore, might not be aware of the details as to how the accident took place but the fact that the First Information Report had been lodged in relation to an accident could not have been ignored." 3(iii)(b). Whether the rashness and negligence on the part of respondent No.2/driver, is proved on record? Second contention raised by learned senior counsel, is that claimant No.1 has taken different stand in respect of cause of death of Ashok Kumar in the Court of learned Additional Chief Judicial Magistrate, Dehra, District Kangra; this variance shows that accident was not result of rash and negligent driving on the part of driver. The copy of judgment dated 31.12.2014 (Ext.RY), in Cr. Case No.61/II/2013, passed by learned Additional Chief Judicial Magistrate, Dehra, District Kangra, H.P., has been produced on record. Learned senior counsel has relied upon paragraph 20 of this judgment (Ext.RX) to contend that claimant No.1, Smt. Promila Devi, while appearing as PW-7 in the said case, has deposed in complete variance to the stand taken by her in the instant case. Her version, in the criminal case, was that her husband had gone with the accused on tractor, to purchase some goods. Her version, in the criminal case, was that her husband had gone with the accused on tractor, to purchase some goods. At night, when the tractor reached accused's house, her husband being not there, she inquired from the accused about her husband, when she was informed by father of accused that her husband had fallen from the tractor; where after, she reached the spot at about 11.00 p.m., where her statement was also recorded by the police. Learned senior counsel argued that the statement of PW-7 Promila Devi, points out that her husband had actually fallen from the tractor and was not hit by it, as is pleaded in the claim petition. Therefore, it was a case where deceased Ashok Kumar had travelled as a gratuitous passenger on the tractor and sustained fatal injuries on his person after falling from it. Therefore, the liability cannot be fastened upon the insurer to compensate the claimants. It is seen from the judgment (Ext.RY) that learned Additional Chief Judicial Magistrate, had discarded the statement of PW-7 Promila Devi, the claimant herein, by observing that had said Promila Devi, reached the spot by 11.00 p.m. on the date of accident, her statement under Section 161 Cr.P.C. would have been recorded by the Investigating Officer on 03.12.2012 or 04.12.2012, however, her statement was actually recorded on 02.01.2013, i.e. much after the date of accident. In fact, learned Addl. Chief Judicial Magistrate, had also perused the version given by the claimants in the claim petition for discarding the statement of PW-7 Promila Devi, therefore, to rely upon the judgment of acquittal (Ext.RY) in contending that Promila Devi's stand was different in the criminal case, will be of no help to the insurer in the present appeal. It is also worth noticing that respondents No.1 and 2, owner and driver, respectively, have also taken different stand, in criminal case, before learned Addl. Chief Judicial Magistrate. The stand taken by respondent No.1, as reflected in para 21 of judgment (Ext.RY), was that her son, respondent No.2, was 40% handicapped person and never used to drive tractor; even his driving licence was also not brought on record; whereas in the claim petition, respondents No.1 and 2, have not denied that respondent No.2 had been driving the offending tractor. His driving licence has been produced on record as Ext.RW-1/B, issued on 15.06.2010 and valid upto 29.09.2018. His driving licence has been produced on record as Ext.RW-1/B, issued on 15.06.2010 and valid upto 29.09.2018. While appearing as RW-1, respondent No.2 Surinder Singh (driver), stated that he drives tractor and was driver of the tractor in question. It is appropriate to refer to judgment passed by Hon'ble Apex Court in, titled Bimla Devi and others versus Himachal Road Transport Corporation and others, (2009) 13 SCC 530 (para 14), as under:- "14. Some discrepancies in the evidences of the claimant's witnesses might have occurred but the core question before the Tribunal and consequently before the High Court was as to whether the bus in question was involved in the accident or not. For the purpose of determining the said issue, the Court was required to apply the principle underlying burden of proof in terms of the provisions of Section 106 of the Indian Evidence Act, 1872 as to whether a dead body wrapped in a blanket had been found at the spot at such an early hour, which was required to be proved by the respondents 2 and 3." 3(iii)(c). Learned senior counsel, relying upon, titled Oriental Insurance Company Ltd. versus Brahmi and others, (2017) 1 ShimLC 90 contends that in a petition under Section 166 of Motor Vehicles Act, claimants are required to prove negligence on the part of driver of tractor. There is no quarrel with this position. The error, as pointed out by learned senior counsel in first sentence of para 9 of the impugned award, in this aspect, appears to be a typographical error. However, proof of negligence, required in a motor accident claim petition, is not of that standard, which is required in criminal cases. It is appropriate to refer to judgment passed in , titled Smt. Prem Lata and another versus H.R.T. Corporation and another,2016 4 HimLR 2584:- "11. It is beaten law of the land that in civil cases, proof of preponderance of probabilities is required, in criminal cases, proof beyond reasonable doubt is required and in summary proceedings under Section 166 of the Motor Vehicles Act, 1988 for short "the Act", prima facie proof is required. 12. My this view is fortified by the judgment delivered by the apex court in Dulcina Fernandes and others vs. Joaquim Xavier Cruz and another, (2013) 10 SCC 646 , and Oriental Insurance Co. versus Mst. Zarifa and others, (1995) AIR(J and K) 81. 13. 12. My this view is fortified by the judgment delivered by the apex court in Dulcina Fernandes and others vs. Joaquim Xavier Cruz and another, (2013) 10 SCC 646 , and Oriental Insurance Co. versus Mst. Zarifa and others, (1995) AIR(J and K) 81. 13. This Court has also laid down the similar principles of law in FAO No. 692 of 2008 decided on 4.9.2015 titled Cholamandlan MS General Insurance Co. Ltd. Versus Smt. Jamna Devi and others, FAO No. 287 of 2014 along with connected matter, decided on 18.9.2015 titled Tulsi Ram versus Smt. Beena Devi and others, FAO No. 72 of 2008 along with connected matter decided on 10.7.2015 titled Anil Kumar versus Nitim Kumar and others and FAO No. 174 of 2013 decided on 5.9.2014 titled Kusum Kumari versus M.D. U.P Roadways and others. 14. It is also settled law that in criminal case acquittal of the driver cannot be a ground to dismiss the claim petition." It is also appropriate to refer to judgment passed by Hon'ble Apex Court in, titled Bimla Devi and others versus Himachal Road Transport Corporation and others, (2009) 13 SCC 530 hereinafter:- "15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties." 3(iii)(d). The FIR Ext.PX and post mortem report Ext.PY have been proved on record. As per post mortem report Ext.PY, head injury suffered by the deceased Ashok Kumar, as a result of the accident, was the cause of his death. It is also admitted case of the parties that criminal case was registered against respondents No.1 and 2. Mere acquittal of respondent No.2, the driver, in the criminal case, will not mean that respondent No.2 was not guilty of driving the offending tractor in a rash or negligent manner. It is also admitted case of the parties that criminal case was registered against respondents No.1 and 2. Mere acquittal of respondent No.2, the driver, in the criminal case, will not mean that respondent No.2 was not guilty of driving the offending tractor in a rash or negligent manner. Thus, no fault can be found against the findings returned by learned Tribunal below on the point of proving rash and negligent driving on the part of respondent No.2 (driver). Hence, the point is answered accordingly. 3(iv)(a). Applicability of Pranay Sethi's case/ Determining future prospects of income of deceased / Split multiplier. Mr. Ashwani Sharma, learned senior counsel has contended that ratio of the judgment of Hon'ble Apex Court, titled National Insurance Co. Ltd. Versus Pranay Sethi and others, (2017) ACJ 2700 cannot be applied to the instant case for determining future prospects of income of deceased Ashok Kumar. Learned senior counsel, further submitted that deceased Ashok Kumar though a regular employee, but, was a Naik serving in Indian Army and was aged 31 years at time of his death; notice, therefore, be taken of the fact that Naik serving in Army would remain in service only for four more years, the retirement age being 35 years; thus, the deceased Ashok Kumar would have continued to serve in the Army only for four more years. Therefore, 50% of the salary cannot be added to the income of deceased towards his future prospectus. Learned senior counsel, further contended that instant is a case where a split multiplier of 4 and 12 should have been applied. 3(iv)(b). Though learned Tribunal referred the deceased as Naik, however, the last pay drawn Certificate Ext.PW1/A, refers the deceased as Sepoy. There is no document on record in respect of retirement age of deceased either as Naik or Sepoy. 3(iv)(c). However, the contention that 50% of the income of deceased cannot be added towards his future prospects, is devoid of any force. In Pranay Sethi's case (supra), Hon'ble Apex Court had made no distinction for adding 50% of income towards future prospects on the basis of retirement age/remaining years of service. The direction of Hon'ble Apex Court, in Pranay Sethi's case (supra), in this regard, are reproduced hereinafter:- "61(iii). In Pranay Sethi's case (supra), Hon'ble Apex Court had made no distinction for adding 50% of income towards future prospects on the basis of retirement age/remaining years of service. The direction of Hon'ble Apex Court, in Pranay Sethi's case (supra), in this regard, are reproduced hereinafter:- "61(iii). While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax." It is not in dispute that deceased Ashok Kumar was a regular employee in the Indian Army and was earning accordingly. Therefore, being 31 years of age on the date of accident, 50% of his income, was required to be added towards future prospects. 3.(iv)(d). Regarding contention raised by learned senior counsel for applying split multiplier, Puttamma and others versus K.L. Narayana Reddy and another, (2014) AIR SC 706 Hon'ble Apex Court held as under:- "32. For determination of compensation in motor accident claims under Section 166 this Court always followed multiplier method. As there were inconsistencies in selection of multiplier, this Court in Sarla Verma prepared a table for selection of multiplier based on age group of the deceased/victim. Act, 1988 does not envisage application of split multiplier. 33. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 34. We, therefore, hold that in absence of any specific reason and evidence on record the Tribunal or the Court should not apply split multiplier in routine course and should apply multiplier as per decision of this Court in the case of Sarla Verma, (2009) AIR SC 3104: 2009 AIR SCW 4092) (supra) as affirmed in the case of Reshma Kumari, (2013) AIR(SC)(Civ) 1731: 2013 AIR SCW 3120 (supra)." Insurer has not taken any plea regarding application of split multiplier. It appears from record that no such argument was even addressed before learned Tribunal. Deceased was 31 years old Sepoy at the time of his death (though learned Tribunal referred him as Naik). There is no oral or documentary evidence on record to reflect the retirement age of the deceased. It appears from record that no such argument was even addressed before learned Tribunal. Deceased was 31 years old Sepoy at the time of his death (though learned Tribunal referred him as Naik). There is no oral or documentary evidence on record to reflect the retirement age of the deceased. It is not even the stand of insurer that deceased would not have the potential to to earn after his alleged superannuation. Present is not a case where split multiplier should be used. Learned Tribunal justly applied 16 as multiplier. No fault, thus, can be found on this count with the award passed by learned Tribunal. 3(iv)(d). Dependency. Learned senior counsel has raised two main points in this heading:- (i). Father cannot be called a dependent; and (ii). Since father cannot be called a dependent, therefore, total dependants of the deceased will be three and not four. Therefore, the deduction towards personal expenses from the income of deceased, will be 1/3 and not 1/4 . Learned senior counsel, in support of his contention, relied upon, titled Sarla Verma (Smt.) and others versus Delhi Transport Corporation and another., (2009) 6 SCC 121 Relevant paras of this judgment, are reproduced hereinafter:- "31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependant on the father. 32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. 32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two third." 3(v)(b). Whether deceased's father Sh. Kishan Chand (PW-2) was dependant upon the income of deceased or not, will depend upon facts of each individual case and the evidence led by parties in that regard. In the instant case, the father, claimant No.4, in his examination-in-chief, as PW-2, has proved his affidavit Ext.PA, wherein, he stated that both the parents of deceased, claimants No.3 and 4, were wholly dependant upon the income of the deceased. He has further asserted that the deceased was sole bread earner of the entire family consisting of his parents, his wife and minor daughter; there is no other source of income available to the parents. There is no cross-examination of deceased's father Shri Kishan Chand (PW-2) on this aspect of the affidavit, by the insurer, hence, it is not open to the insurer to contend that father was not dependant upon the income of the deceased. Therefore, there were four dependants upon income of deceased, i.e. his wife, daughter and aged parents. No doubt, Hon'ble Apex Court, has held that normally where father is earning separately, it will only be the mother, who would be entitled to be counted as a dependant on the income of the deceased. But, in the instant case, the facts and evidence are to the effect that both the aged parents were completely dependants upon the income of deceased. Therefore, learned Tribunal was justified in deducting only 1/4 income of deceased towards his personal expenses. The point is answered accordingly. Income of Deceased. 3(vi). But, in the instant case, the facts and evidence are to the effect that both the aged parents were completely dependants upon the income of deceased. Therefore, learned Tribunal was justified in deducting only 1/4 income of deceased towards his personal expenses. The point is answered accordingly. Income of Deceased. 3(vi). Learned senior counsel for the insurer, has contended that last drawn income of the deceased, as per Ext.PW-1/A, was Rs.23,695/-; calculations for determining the compensation have been made on this income, without deducting income tax; the income tax was required to be deducted from annual income of deceased Ashok Kumar on account of annul income from salary. 3(vii). It is proved on record that deceased Ashok Kumar, while serving in Indian Army, was an income-tax payee. It is seen that learned Tribunal, while deciding issue No.2, had committed an error in not deducting the income tax from his annual or monthly income. Net income of deceased from annual salary, at the time of his death, on the basis of "Last Pay Drawn Certificate" (Ext.PW-1/A), is calculated as under:- Monthly income of deceased s.23,695/- Annual income (Rs.23,695/- x 12) s.2,84,340/- Income tax liability on income 10% above Rs.2,00,000/- (F.Y. 2012-13). Annual income tax on Rs.84,340/- Rs.8,434/- Monthly income tax .703/- Dependency= Rs.22,992 () Rs.5,748 (< of Rs.22,992) =Rs.17,244/-. Sr. No. Heads. Amount. 1. Loss of contribution of income comes out Rs.17244 + 50% as Rs.8622/-, i.e. monthly income of Rs.17,244/- (+) Rs.8,622/- = Rs.25,866/-x 12 x 16 Rs.49,66,272/- 2. Funeral expenses Rs.15,000/- 3. Loss of love and affection Rs.40,000/- 4. Loss of consortium to the petitioner Rs.15,000/- TOTAL: Rs.50,36,272/- All other terms and conditions, including interest and apportionment, shall be in terms of impugned award. 4. In view of the aforesaid discussions/observations, the present appeal is partly allowed and the impugned award passed by learned Motor Accident Claims Tribunal(II), Una, District Una, H.P., is modified to the extent indicated above. Present appeal is accordingly disposed of, so also the pending miscellaneous applications, if any.