JUDGMENT : K. Natarajan, J. MFA No.2825/2012 is filed by the insurer while MFA No.2026/2013 is filed by the legal representatives of the deceased Divakara, both assailing the judgment and award dated 22.12.2011, passed by the Motor Accident Claims Tribunal, Puttur, (hereinafter referred to as 'Tribunal'), in MVC No.737/2007. 2. For the sake of convenience, the status of the parties before the Tribunal is retained. 3. Heard the arguments of learned counsel for the appellants and the respondents. 4. The legal representatives of one Divakara, who died in a road traffic accident have filed claim petition under Section 166 of the Motor Vehicles Act, 1988 ('Act' for short) claiming compensation of Rs.10,00,000/- inter alia, contending that on 16.01.2007, the said Divakara was proceeding from the Hotel Tiffin Hall towards Ramanagara by walking near Uppinangady Old Bus Stand, Gandhi Park Road on the left side of the road at 9.30 p.m., and when he reached near Gandhi Park of Uppinangady Kasaba village in Puttur Taluk, the motorcycle bearing Regn. No.KA-21/J-2297 came in a high speed on the wrong side of the road from opposite direction in a rash and negligent manner and dashed against the said Divakara, due to which, he fell down and sustained injuries. He was taken to the Government Hospital, Puttur. Later, he was shifted to Wenlock Hospital, Mangalore and got admitted as inpatient, where he succumbed to the injuries. 5. The claimants contended that due to the death of the deceased, they have lost their dependency. The deceased was working as a Cleaner-cum-Waiter in the Hotel Tiffin Hall and earning Rs.4,500/- per month. They have spent Rs.75,000/- towards medical expenses. Respondent No.1, the owner of the Motorcycle and respondent No.2, the insurer of the motorcycle were jointly and severally liable to pay the compensation. Hence, prayed for allowing the claim petition. In pursuance of notice, respondent No.1-owner of the Motorcycle did not contest the matter and hence, he was placed ex parte. Respondent No.2-Insurance Company appeared through its counsel and filed statement of objections inter alia, denying the mode of accident, injuries sustained by the deceased and also the age, occupation and income of the deceased as false. It is also contended that the claimants have created a story to file a claim petition in order to claim compensation. Respondent No.2-Insurance Company appeared through its counsel and filed statement of objections inter alia, denying the mode of accident, injuries sustained by the deceased and also the age, occupation and income of the deceased as false. It is also contended that the claimants have created a story to file a claim petition in order to claim compensation. However, they admitted issuance of Insurance Policy in respect of the motorcycle and contended that if any liability is to be fastened on the Insurance Company, the same may be subject to the terms and conditions of the Insurance Policy. They have also taken a specific contention that the claim made is excessive and prayed for dismissal of the claim petition. 6. Based upon the rival pleadings, the Tribunal has framed the following issues for its consideration: "(1) Whether the petitioner proves that the occurrence of accident in question was due to the rash and negligent riding of the Motor cycle bearing Reg.No.KA-21-J-2297 by its rider? (2) Whether he proves that deceased succumbed to accidental injuries? (3) Whether the petitioners are entitled for compensation? If yes, what amount and from whom? (4) What order/Award?" 7. The claimant No.1 is the father and claimant No.2 is the mother, who died during the pendency of the claim petition. Hence, another son of the claimants, one Rohit was brought on record as petitioner No.2(a) and he has led evidence before the Court as PW.1 and also examined one PW.2, apart from marking 15 documents as per Exs.P.1 to P.15. On the other hand, one Jagadish was examined as RW.1 and the Law Officer of the Insurance Company was examined as RW.2. They also got marked four documents as per Exs.R.1 to R.4. After considering the evidence on record, the Tribunal answered issue Nos.1 to 3 in the affirmative and awarded compensation of Rs.2,40,000/- together with interest at 6% per annum, on the following heads: (i) Towards Loss of dependency -Rs.1,80,000-00 (ii) Towards Love and affection -Rs. 20,000-00 (iii) Towards transportation & Funeral expenses -Rs. 20,000-00 (iv) Towards loss of estate -Rs. 20,000-00 Total -Rs.2,40,000-00 8. Assailing the judgment and award and fastening of liability, the Insurance Company has preferred an appeal and the claimants have also filed an appeal for enhancement. 9. 20,000-00 (iii) Towards transportation & Funeral expenses -Rs. 20,000-00 (iv) Towards loss of estate -Rs. 20,000-00 Total -Rs.2,40,000-00 8. Assailing the judgment and award and fastening of liability, the Insurance Company has preferred an appeal and the claimants have also filed an appeal for enhancement. 9. Learned counsel for the Insurance Company contended that the award passed by the Tribunal fastening the liability on the Insurance Company itself is illegal, as the Insurance Company examined RW.1, the complainant, who lodged the complaint before the Police. The complainant himself has stated that there was no other person to look after the deceased Divakara. He himself brought Divakara to his house and secured a job in a hotel to help him. He secured cleaning work in the hotel by providing free food. The hotelier was not paying any salary to the deceased and even he has stated that the cremation was done by him only and no persons came from the family of the deceased. It is also contended that the motorcycle was being fixed by the claimants, which was not at all involved in the accident. Respondent No.1- Ramachandra Naik gave statement before the Investigating Officer of the Insurance Company stating that he has sold the motorcycle to one Raghunatha Rai about one year back itself and he has categorically stated that the vehicle was not at all involved in the accident, but the claimants have falsely implicated the said vehicle for the purpose of claiming compensation. In spite of leading of evidence by the respondents and marking of the documents, the Tribunal has awarded compensation, which is not correct and against the evidence on record. Learned counsel also contended that the respondent-Insurance Company has also disputed the relationship between the deceased and the claimants. They have not proved the relationship before the Tribunal. When RW.1 denied the income of the deceased, calculating Rs.3,000/- per month is not correct and hence, prayed for allowing of their appeal. 10. Per contra, learned counsel appearing for the claimants contended that PW.1, who is none other than the younger brother of the deceased Divakara, has given evidence on behalf of his father. Claimant No.1 is the father of the deceased. As per the inquest panchanama, the Police handed over the dead body of the deceased. 10. Per contra, learned counsel appearing for the claimants contended that PW.1, who is none other than the younger brother of the deceased Divakara, has given evidence on behalf of his father. Claimant No.1 is the father of the deceased. As per the inquest panchanama, the Police handed over the dead body of the deceased. Even RW.1, who gave complaint to the Police about the accident and sustaining of injuries by the deceased, has not mentioned the name of the accused in the FIR. That itself is not a ground to reject the claim. The claimants have produced the genealogical tree, Ration Card and other documents to show that the deceased Divakara was their son and therefore, supported the findings in respect of rash and negligent driving on the part of the rider of the motorcycle belonging to respondent No.1. It is also contended that merely because some statements were given by RW.1 and respondent No.1 to the Investigating Officer of the Insurance Company, but the Police documents were not at all disputed by the respondent- Insurance Company, clearly reveal that the accident in question has occurred due to rash and negligent riding by the rider of the motorcycle belonging to respondent No.1. Learned counsel for the claimants also contended that there is positive evidence before the Trial Court that the deceased has worked in a hotel getting salary of Rs.4,500/-. The Salary Certificate was also produced before the Court, but the Tribunal has not considered the said Salary Certificate and has considered an amount of Rs.3,000/- p.m. towards the income of the deceased, which is not correct. Even this Court used to consider Rs.3,500/- to Rs.4,000/- per month for an unskilled labour during the period 2006-2007, but the Tribunal has committed error in considering the income of the deceased at Rs.3,000/- per month, which is meager. There is no future prospects considered by the Tribunal. Apart from that, the age of the claimants has been taken for the purpose of calculating the multiplier, which is also against the principles laid down by the Hon'ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others, (2017) 16 SCC 680 . The Tribunal ought to have considered the multiplier with regard to the age of the deceased. Hence, prayed for enhancement of compensation. 11. The Tribunal ought to have considered the multiplier with regard to the age of the deceased. Hence, prayed for enhancement of compensation. 11. Upon hearing the arguments of learned counsel for both parties, the points that arise for consideration are as follows: (i) Whether the Tribunal is justified in holding that the accident dated 16.01.2007 has occurred due to rash and negligent riding of the motorcycle bearing Regn.No.KA-21/J-2297 by its driver, due to which, the deceased Divakara sustained injuries and succumbed to the same? (ii) Whether the claimants establish that they are the legal representatives of the deceased Divakara and are entitled to claim compensation? (iii) Whether the claimants are entitled for enhanced compensation. (iv) What order? 12. Claimant Nos.1 and 2 claimed to be the parents of deceased Divakara, who filed the claim petition contending that the deceased Divakara was their son and he was working in the Hotel Tiffin Hall and due to the accident, he died in the hospital. In support of their case, another son of the claimants i.e. one Rohit, who claimed to be the younger brother of the deceased led evidence on behalf of the claimants and also got marked 15 documents. The claimants also examined PW.2-Lathif, who is the eyewitness to the accident to corroborate the evidence of PW.1. They got marked Ex.P.4-Police notice, Ex.P.5-FIR, Ex.P.6-complaint, Ex.P.7-spot mahazar, Ex.P.8-sketch, Ex.P.9-Report of the Investigating Officer for alteration under Section 304A, Ex.P.10-Inquest report, Ex.P.11- seizure report, Ex.P.12-Post Mortem report and Ex.P.15- charge sheet. On perusal of the records, the inquest panchanama, Post Mortem Report, complaint and FIR go to suggest that the deceased Divakara, while he was walking on the road on the date of the accident, the motorcycle bearing Regn.No.KA-21/J-2297 came in a rash and negligent manner and dashed against the said Divakara, due to which, he fell down and sustained injuries. Immediately, the said Divakara was shifted to the Government Hospital, Puttur. Thereafter, for further treatment, he was shifted to Wenlock Hospital, Mangaluru and during the treatment, he succumbed to the injuries in the hospital. RW.1-Jagadish was examined on behalf of the respondent-Insurance Company, who is the complainant before the Police. He has stated in his evidence that the accident has occurred due to the rash and negligence on the part of the rider of the motorcycle. RW.1-Jagadish was examined on behalf of the respondent-Insurance Company, who is the complainant before the Police. He has stated in his evidence that the accident has occurred due to the rash and negligence on the part of the rider of the motorcycle. Though he has stated in the complaint that the rider of an unknown motorcycle caused the accident, he has not named the accused in the FIR. Admittedly, the complaint and the FIR reveal that the accident has occurred due to the negligent riding of the motorcycle by its rider, but no number has been mentioned. Subsequently, the deceased was under treatment in the hospital and died on 22.01.2007. Therefore, the fact that the deceased sustained injuries in the road traffic accident that occurred on 16.01.2007 and died during treatment is not in dispute. The Insurance Company disputed the involvement of the motorcycle bearing No.KA-21/J-2297. To prove their contentions, the respondent-Insurance Company examined RW.1-Jagadish, who is the complainant before the Police. He has stated that he do not know the registration number of the motorcycle. Though he has admitted the accident, but denied that the rider of the motorcycle was not the offender. In the cross-examination, RW.1 admitted that the averments made by him in the complaint to the Police under Ex.P.1 were true. However, the Insurance Company relied upon the statement given by RW.1- Jagadish to the private Investigating Officer appointed by the Insurance Company wherein, he has stated about the accident, but he has not mentioned the registration number of the vehicle. The said statement of RW.1 has been marked as Ex.R.1. The same was denied by the claimants. RW.2, Law Officer of the Insurance Company was examined and he has stated that no such accident has occurred due to the negligent riding of the motorcycle bearing Regn. No.KA-21/J-2297 and he has also stated that the motorcycle in question was sold by Ramachandra Naik to Raghunatha Rai about one year prior to the date of accident. However, the said Ramachandra Naik, who is respondent No.1 before the Tribunal, has not been examined by the respondent-Insurance Company. Even the Insurance Company has not chosen to examine the Investigating Officer to prove the statement made by respondent No.1 Ramachandra Naik about selling of the motorcycle one year prior to the date of accident. However, the said Ramachandra Naik, who is respondent No.1 before the Tribunal, has not been examined by the respondent-Insurance Company. Even the Insurance Company has not chosen to examine the Investigating Officer to prove the statement made by respondent No.1 Ramachandra Naik about selling of the motorcycle one year prior to the date of accident. Even otherwise, perusal of the Police Notice-Ex.P.4 reveals that the rider of the motorcycle is Raghunatha Rai in the name of Ramachandra Naik. The Insurance Policy issued in the name of respondent No.1 was valid from 10.08.2006 to 09.08.2007. To prove the contention that the vehicle was sold to Raghunatha Rai, the rider, respondent No.1 has not chosen to appear before the Tribunal to lead evidence by filing statement of objections. Though the statement of respondent No.1 was produced before the Tribunal by the Insurance Company and marked as a document, but the said document was not proved by examining respondent No.1 and also the private Investigating Officer of the Insurance Company, who recorded the statement of respondent No.1. Therefore, the contention of the respondent-Insurance Company cannot be acceptable that respondent No.1 sold the vehicle long back to Raghunatha Rai. Even otherwise, the Insurance Policy was in force, which was issued by the respondent-Insurance Company in the name of respondent No.1. If at all respondent No.1 sold the vehicle to Raghunatha Rai, he could have intimated the same to the RTO as per Section 157 of the Act, but no such evidence is forthcoming. Therefore, the contention of respondent Nos.1 and 2 that the vehicle was sold long back cannot be acceptable. 13. On the other hand, the Police documents were not seriously disputed by the respondent-Insurance Company in the cross-examination of PW.1. PW.2-Lathif, the eyewitness has categorically stated that on the date of the accident, he was the auto driver and he has also witnessed the accident. RW.1 was only the complainant, but he was not the eyewitness. PW.2 has clearly stated about the accident and lodging of the complaint by RW.1. Even the evidence of both PWs.1 and 2 were not impeached by the respondent about the accident. Subsequent to the accident, the Police traced the vehicle which caused the accident and arrested Raghunatha Rai. They investigated the case, seized the vehicle under the panchanama and also filed the charge sheet as per Ex.P.15. Even the evidence of both PWs.1 and 2 were not impeached by the respondent about the accident. Subsequent to the accident, the Police traced the vehicle which caused the accident and arrested Raghunatha Rai. They investigated the case, seized the vehicle under the panchanama and also filed the charge sheet as per Ex.P.15. Neither the FIR nor the charge-sheet was challenged by the respondent- Insurance Company before any Court of law. When the rider of the motorcycle and owner of the motorcycle were not examined before the Court to prove the contention that the vehicle was not involved in the accident, the defence raised by the Insurance Company cannot be acceptable. On the other hand the Police documents, especially the evidence of PW.2, who has identified motorcycle and the accused in the Police Station clearly reveal that the accident in question has occurred due to the rash and negligent riding of the motorcycle by its rider. Therefore, the Tribunal has rightly held that the accident has occurred due to the rash and negligent riding of the motorcycle bearing No.KA-21/J-2297. Hence, I do not find any error or illegality committed by the Tribunal, which calls for interference. Therefore, I answer Point No.1 in favour of the claimants and against the Insurance Company. 14. The Insurance Company has raised another contention by disputing the relationship of the claimants with the deceased contending that the deceased Divakara was a handicapped person and the parents are not alive. He was residing in the house of RW.1 and he was not earning any income though he was working in the hotel as a Cleaner-cum-Waiter. It is contended that for the purpose of claiming compensation, they have filed a false claim petition. To prove the said contention, the Insurance Company mainly relied upon the evidence of RW.1. The said RW.1 has stated in his evidence that there was nobody to look after the deceased. Therefore, he was looking after the deceased by keeping him in his house and after the accident and the death of Divakara, he himself cremated the body. In fact, he is the person who lodged the complaint to the Police. He has clearly admitted in the cross-examination about lodging of the complaint before the Police. He has also stated that it is true. In fact, he is the person who lodged the complaint to the Police. He has clearly admitted in the cross-examination about lodging of the complaint before the Police. He has also stated that it is true. Perusal of the complaint reveals that he has stated that the deceased Divakara was related to him and he was staying in his house and he himself secured a job for the deceased in the Hotel Tiffin Hall, and contended that the deceased was earning only Rs.20/- per day, but the same was not mentioned by him in Ex.P.6. The Police documents especially, the inquest panchanama-Ex.P.10 prepared by Investigating Officer immediately after the death of the deceased, reveals the name of the father of the deceased as Vishwanatha Naik and the dead body was also handed over to the father of the deceased. The statement of Indira, the mother and statement of claimant No.1, the father were recorded by the Investigating Officer at the time of inquest. They have categorically stated that the deceased was their son. Even the statements of relatives were also recorded by the Police, which reveal that the deceased was the son of claimant Nos.1 and 2. The claimants have also filed genealogical tree-Ex.P.3, which was not seriously disputed by the respondent- Insurance Company. Even the Police notice-Ex.P.4 also shows the name of the father of the deceased as Vishwanatha Naik. These documents especially, Police records show that the deceased Divakara is the son of Vishwanatha Naik. If at all they are not the parents and PW.1 was not the younger brother, the respondent- Insurance Company definitely would have visited the village and recorded the statement of responsible persons or village panchayat officials to ascertain as to whether the deceased was the son of Vishwanatha Naik or not. They failed to produce any other documents and examine any other witness to disprove the claimants' contention that they are the legal representatives of the deceased. On the other hand, the evidence of PW.1 and Police documents show that they are the legal representatives of the deceased Divakara. Though RW.1-Jagadish stated that he himself cremated the body, he has not stated as to what was the amount spent by him and who shifted the injured to the hospital when the injured was taking treatment in the Wenlock Hospital. His evidence is silent in this regard. Though RW.1-Jagadish stated that he himself cremated the body, he has not stated as to what was the amount spent by him and who shifted the injured to the hospital when the injured was taking treatment in the Wenlock Hospital. His evidence is silent in this regard. Therefore, except his evidence that the deceased was staying with him prior to the accident and he himself secured a job to the deceased, the remaining evidence cannot be acceptable as he might have won over by the insurer. Therefore, the evidence of RW.1 cannot be acceptable to disprove the contention in respect of the relationship of the deceased with the claimants. 15. It is well settled by the Hon'ble Supreme Court in the case of Gujarat State Road Transport Corporation, Ahmedabad vs. Ramanbhai Prabhat Bhai and another, (1987) AIR SC 1690 that even the brother of a person who dies in a motor vehicle accident, is also entitled to maintain the claim petition under the Act apart from the parents, children and wife of the deceased. PW.1, though he is the younger brother of the deceased, he was examined on behalf of the claimants. Claimant No.1 is the father, who was not well and unable to come to the Court and they have produced Ex.P.1-Medical certificate of claimant No.1 and the death certificate of claimant No.2. Therefore, claimant Nos.1 and 2 being the parents are entitled to maintain the claim petition as also petitioner No.2(a) as he was the legal representative of the deceased. Hence, I answer point No.2 in favour of the claimants and against the Insurance Company. 16. As regards the compensation awarded by the Tribunal, the claimants have contended that the deceased was working in a Hotel Tiffin Hall as a Cleaner-cum-Waiter. He was earning Rs.4,500/- p.m. In support of their case, they got marked the salary slip-Ex.P.14, issued by one Sandeep Shetty, who is said to be the owner of the Hotel, but the claimants have not examined the owner of the said Hotel to prove the income of the deceased. Though RW.1 contended that he was earning Rs.20/- per day and he himself was looking after the deceased, but both the claimants as well as the respondent-Insurance Company have not chosen to examine the owner of the hotel to know the actual income of the deceased. Though RW.1 contended that he was earning Rs.20/- per day and he himself was looking after the deceased, but both the claimants as well as the respondent-Insurance Company have not chosen to examine the owner of the hotel to know the actual income of the deceased. However, it was admitted that the deceased was working in the said hotel as a Cleaner-cum-Waiter at the relevant point of time. RW.1, himself has stated that he has secured a job for the deceased. Though the respondent has taken the contention that the deceased was handicapped and was not able to work, but there is no evidence available on record or in the Police documents or in the Post Mortem Report that the deceased was handicapped. The same was denied by PWs.1 and 2. Therefore, the contention of the respondent that the deceased was a handicapped person cannot acceptable. However, this Court is also not able to accept that the deceased was paid Rs.4,500/- per month. Therefore, in the absence of any income proof, the Tribunal has rightly considered the notional income at Rs.3,000/- p.m. However, the Tribunal has not considered the future prospects. As he was aged about 26 years and working in the hotel and as per the dictum of the Hon'ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and others, (2017) 16 SCC 680 , 40% of the income should considered towards future prospects. If Rs.3,000/- p.m. is considered as the monthly income of the deceased, adding 40% of the income at Rs.1,200/- towards the future prospects, it comes to Rs.4,200/-. Admittedly, the deceased was a bachelor. Therefore, 50% of the income has to be deducted towards his personal expenses. Then, it comes to Rs.2,100/- and when multiplied by 12, the annual income comes to Rs.25,200/-. The Tribunal has also committed error in taking the multiplier as 10 by considering the age of claimant No.1. It is well settled by the Hon'ble Apex Court in the case of Pranay Sethi, the multiplicand for the purpose of calculating the loss of dependency, the age of the deceased has to be taken to consideration. The age of the deceased is 26 years. Therefore, the appropriate multiplier would be 17. Hence, the loss of dependency is re-assessed at Rs.4,28,400/- (Rs.25,200x17 = Rs.4,28,400/-) instead of Rs.1,80,000/- as assessed by the Tribunal. 17. The age of the deceased is 26 years. Therefore, the appropriate multiplier would be 17. Hence, the loss of dependency is re-assessed at Rs.4,28,400/- (Rs.25,200x17 = Rs.4,28,400/-) instead of Rs.1,80,000/- as assessed by the Tribunal. 17. As per the dicta of the Hon'ble Supreme Court in the case of Pranay Sethi (supra) as well as in the case of Nanu Ram alias Chuhru vs. Magma General Insurance Co. Ltd., (2018) ACJ 2782, claimant No.1-father is entitled to loss of filial consortium of Rs.30,000/-. Since claimant No.2 has already died, and PW.1 was arrayed as the legal representative of claimant No.2, he is not entitled for any consortium. The claimant No.1 is entitled for Rs.15,000/- towards funeral and transportation charges and Rs.15,000/- towards loss of estate. Though, there is no evidence in respect of medical expenses spent by the claimant, but it is seen from the evidence on record, the accident has occurred on 16.01.2007, the deceased was shifted to Puttur Government Hospital and later shifted to Wenlock. Hospital, Mangaluru, and admitted as inpatient till 22.07.2007 and later he died. He was in the hospital for almost a week. A considerable amount towards medical expenses and attendant charges might have been spent. Therefore, considering the facts and circumstances, I propose to award Rs.10,000/- towards attendant and medical expenses. The claimants are entitled for the reassessed compensation as under; (i) Loss of Dependency Rs.4,28,400/- (ii) Funeral and Transportation Rs. 15,000/- (iii) Loss of estate Rs. 15,000/- (iv) Medical expenses and Attendant charges Rs. 10,000/- (v) Loss of consortium Rs. 30,000/- Total Rs.4,98,400/- 18. In the result, the appeal filed by the insurer in MFA No.2825/2012 is dismissed. The appeal filed by the claimants in MFA.No.2026/2013 is allowed in-part. The claimants are entitled for the enhanced compensation of Rs.4,98,400/- with interest at 6% per annum from the date of petition till the date of realization. However, it is clarified that the claimants are not entitled for interest during the delay period of 343 days in filing this appeal. Respondent No.2 is directed to deposit the amount within four weeks from the date of receipt of certified copy of the judgment. 50% of the amount deposited by the insurer and the statutory deposit are ordered to be transmitted to the Tribunal. Respondent No.2 is directed to deposit the amount within four weeks from the date of receipt of certified copy of the judgment. 50% of the amount deposited by the insurer and the statutory deposit are ordered to be transmitted to the Tribunal. 50% of the award amount together with interest is directed to be deposited in any nationalised Bank in the name of claimant No.1 for an initial period of five years with liberty to draw periodical interest and the remaining amount is ordered to be released to him after due identification. Office is directed to transmit the records to the Trial Court.