JUDGMENT : R.M. CHHAYA, J. 1. Feeling aggrieved and dissatisfied by the impugned judgment and award dated 2.6.2018 passed by the Motor Accident Claims Tribunal (Aux) and 7th Ad-hoc Additional District Judge, Panchmahal at Godhra in Motor Accident Claim Petition no. no.304 of 2014, the appellant - insurance Company has preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “the Act”). 2. Following facts emerge from the record of the appeal:- That, the accident occurred at 07:00 p.m. on 3.1.2014 near Vejalpur Bagayat Kendra. It is the case of the original claimants that while the deceased – Punambhai was travelling on a motorcycle bearing registration no. GJ-17 AM-7939 as a pillion rider, a dog came in front of the bike, because of which, respondent no.1 who was driving the motorcycle had to apply sudden brake, because of which, the deceased fell down on the road and sustained grievous injuries. As the record unfold, the deceased was admitted at Referral Hospital, Kalol and thereafter, was taken to Supeda Hospital for further treatment and was thereafter admitted to New Life Hospital, Godhra. However, the deceased was declared dead. An FIR was lodged with Vejalpur Police Station being CR no. I- 3/2014 and thereafter, the original claimants have preferred the present claim petition under Section 166 of the Act and claimed compensation of Rs.35,00,000/-. One of the claimant was examined at Exh.13 and the original claimants also relied upon the documentary evidence, such as, complaint at Exh.15, Panchnama at Exh.16, inquest Panchnama at Exh.17, P.M. report at Exh.18, R.C. Book at Exh.19, insurance policy at Exhs.20 and 40/1, certificate of income of the deceased at Exhs.23 and 28, charge-sheet at Exh.21, school leaving certificate at Exh.22 and learning driving licence at Exh.35. The Tribunal framed issues at Exh.10 and after considering the evidence on record, came to the conclusion that the deceased was serving with Horticultural Experiment Station, Vejalpur and had a salary of Rs.20,165/- per month. The Tribunal did not consider the contention of the original claimants that the deceased had an additional income of Rs.5,000/- as agricultural income and therefore, assessed the monthly income of the deceased at Rs.21,320/- per month. Following the ratio laid down by the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors. The Tribunal did not consider the contention of the original claimants that the deceased had an additional income of Rs.5,000/- as agricultural income and therefore, assessed the monthly income of the deceased at Rs.21,320/- per month. Following the ratio laid down by the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680 and after deduction of one-third, the Tribunal determined the compensation under the head of future loss of income at Rs.28,82,463/- and over and above that, the Tribunal also awarded Rs.70,000/- as compensation under different conventional heads including funeral expenses and thus, granted total compensation of Rs.29,52,463/- with 9% interest per annum from the date of filing of the claim petition till its realization. The Tribunal, while examining the question of liability, considered the insurance policy at Exh.20 and Mark 40/1 and 46 and after considering the provision of Rule 3 of the Central Motor Vehicle Rules, 1989 and so also the provision of Section 149 of the Act, in particular, directed the appellant to satisfy the award and thereafter, recovered the same from the owner of the offending vehicle. Being aggrieved by the same, the present appeal is filed. 3. Heard Mr. Maulik J. Shelat, learned advocate for the appellant and Mr. Chetankumar Shah, learned advocate for respondents no.1 and 2 - original claimants. Though served, no one appears for the respondent no.3. 4. This Court, vide order dated 11.6.2019, was pleased to issue notice for final disposal and hence, the learned advocates were heard for final disposal and this Court has also perused the original record and proceedings. 5. Relying upon the judgment of this Court in the case of New India Assurance Co Ltd Vs. Minor Himaniben & Ors., reported in 2016 ACJ 1371 and the judgment of this Court in the case of United India Insurance Company Limited Vs. Kiritikumar Tulsibhai Patel & Ors., reported in 2016 Law Suit (Guj) 2083, Mr. Shelat contended that the Tribunal has erred in not appreciating that the driver and owner of the insured motorcycle happens to be the son of the deceased and as he falls in the category of Class-I heir as per the Hindu law, the owner himself being a tortfeasor, his share is required to be deducted by the Tribunal and according to Mr. Shelat, the original claimants are entitled to receive only two-third of the total compensation. It was therefore contended by Mr. Shelat that after determining the quantum of compensation, the extent of share the tortfeasor required to be determined and compensation awarded to other heir should be reduced to that extent. Mr. Shelat also invited attention of this Court that the present appeal is restricted to Rs.10,00,000/- and on the aforesaid sole ground, the appeal deserves to be allowed. 6. Mr. Chetankumar Shah, learned advocate for the respondents no.1 and 2 - original claimants has vehemently opposed this appeal and has submitted that the Tribunal has rightly appreciated the evidence and the contention raised that the share of the tortfeasor is required to be deducted is without any basis and the appeal, being merit-less, deserves to be dismissed. 7. No other or further submissions, grounds and/or contentions are made by the learned advocates appearing for the respective parties. 8. Upon perusal of the original record and proceedings, it transpires that the owner of the motorcycle bearing registration no. GJ-17 AM-7939 was the son of the deceased and the deceased was a pillion rider on the insured motorcycle. The question, which arises in this appeal, is whether the share of the driver who happens to be son of the deceased is required to be sliced down from the total compensation. As the record indicates, the deceased had 3 heirs, widow, a daughter and a son, who happens to be the owner of the motorcycle bearing registration no. GJ-17 AM-7939. The issue raised in this appeal is considered by this Court in the case of Minor Himaniben (supra), wherein this Court has observed thus:- “[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 original defendant No.1, who is the husband of the deceased being tortfeasor, would not be entitled to file a claim petition as a tort feasor 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 claimants. 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) and another v. M/s Chhotalal Parmanandas & Co. [28] At this juncture, reference may be made to the decision of this court in the case of Pravinkumar Vallabhdas (Minor) and another v. M/s Chhotalal Parmanandas & Co. and others, 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.” 9. It would also be appropriate to refer to the judgment of this Court in the case of Kiritikumar Tulsibhai Patel (supra), wherein this Court has observed thus:- “[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 18AC2401 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.GJ18AC2401. 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.GJ18AC2401. 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 Vs. Minor Himaniben & Ors. 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.2629 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 original defendant No.1, who is the husband of the deceased being tortfeasor, would not be entitled to file a claim petition as a tort feasor 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. 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. 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) and another v. Chhotalal Parmanandas & Co. and others, 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.1husband of the deceased driver cum owner of Car bearing registration No.GJ18AC2401 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. 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.GJ18AC2401 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.” 10. In the case on hand also, as observed hereinabove and even as per the insurance policy at Exhs.20 and 40/1, respondent no.1 – Nitinkumar who is the owner of the said vehicle happens to be the son of the deceased who was a pillion rider. The accident has occurred because of the negligence on the part of the driver-cum-owner of the motorcycle and therefore, following the ratio laid down by this Court in the case of Minor Himaniben (supra) and in the case of Kiritikumar Tulsibhai Patel (supra), as the driver-cum-owner happens to be the son of the deceased and he being a tortfeasor is not entitled to any compensation. In the case on hand, as there are 3 heirs, one-third amount from the total compensation awarded would be the share of respondent no.2 who happens to be the tortfeasor himself and under such circumstances, one-third of the amount of total compensation therefore is required to be sliced down. Having come to the aforesaid conclusion therefore, out of the total compensation of Rs.29,52,463/- awarded by the Tribunal, one-third amount i.e. Rs.9,84,154/- deserves to be sliced down and the respondents-original claimants would be thus entitled to Rs.19,68,309/- as compensation, which is rounded to Rs.19,68,500/- with 9% interest per annum from the date of filing of the claim petition till its realization. As there is no challenge to the quantum of compensation awarded by the Tribunal, it is not necessary for this Court to deal with the same. Rest of the order and even the order of pay and recovery is not disturbed. As per the previous orders passed on Civil Application, the appellant – insurance Company has deposited the whole amount as awarded by the Tribunal. The excess amount so deposited by the appellant – insurance Company shall be refunded by the Tribunal forthwith to the appellant. 11. The appeal is thus partly allowed. The impugned judgment and award stands modified accordingly. However, there shall be no order as to costs. Registry is directed to send the original record and proceedings back to the Tribunal forthwith.