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2019 DIGILAW 934 (CAL)

National Insurance Co. Ltd. v. Sohna Singh

2019-11-15

DIPANKAR DATTA, PROTIK PRAKASH BANERJEE

body2019
JUDGMENT : 1. FMA 644 of 2017 is an appeal under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "1988 Act"). It questions the correctness of a judgment and award dated June 28, 2016 passed by the learned Additional District Judge, 3rd Court, South 24-Parganas at Alipore (hereinafter referred to as the "learned tribunal") in M.A.C.C. No. 195 of 2012/CIS No. M.A.C.C. No. 1352 of 2016 filed under section 166 of the 1988 Act. By the said order, the learned tribunal awarded compensation to the tune of Rs. 1,59,46,360/- (Rupees One Crore, Fifty-Nine Lakh, Forty- Six Thousand, Three Hundred and Sixty) in favour of the claimants/respondents (hereinafter referred to as "the claimants") who are the mother, widow and two daughters of one Amardeep Singh (hereinafter referred to as "the victim") who was a victim of a road car accident. According to the records brought before us, the victim was grievously injured in the said road accident which occurred on May 16, 2007 at around 21:30 hrs. on the New Town Road near Jatragachi More while the victim was on his way home along with his brother and a driver. The unfortunate accident took place when a Dumper Truck (hereinafter referred to as "the offending vehicle") collided with the car in which the victim was travelling. The said car belonged to the deceased. At the relevant point of time, the offending vehicle having registration number WB-37A/3616 was insured as goods carrying commercial vehicle in the name of one Kamaliya Dutta, owner of the offending vehicle, under an Insurance Policy which covered third party liabilities. The appellant is the insurer of the offending vehicle (hereinafter referred to as "the Insurer"). 2. Initially, the claimants filed a motor accident claim application dated July 23, 2007 before the learned tribunal for grant of compensation on account of grievous accidental injuries sustained by the victim due to the said road accident under section 166 of the 1988 Act. The injuries suffered by the victim were particularly a closed fracture of the shaft of the right femur and complete dislocation of C4 over C5 causing severe compression of cervical cord by C5 body against posterior elements of upper column due to fragmentation of posterior elements of C4 bi-lateral. The injuries suffered by the victim were particularly a closed fracture of the shaft of the right femur and complete dislocation of C4 over C5 causing severe compression of cervical cord by C5 body against posterior elements of upper column due to fragmentation of posterior elements of C4 bi-lateral. The victim also suffered complete rupture of interior and posterior spinal ligament with hematoma between C4 and C5, deformity, compression and contusion of cervical cord from C3-C4 to C6-C7. Due to such injuries sustained by the victim, he suffered from paralysis of all four limbs, a condition termed "quadriplegia" as a result of which he was rendered completely disabled. Immediately after the incident, the victim was removed to Apollo Gleneagles Hospital. Having been admitted on the same day, he underwent treatment till July 03, 2007. Thereafter, the victim was discharged from the said Hospital but the treatment continued at his residence according to the advice and under the aegis of doctors of the said Hospital as well as a team of renowned experts in the field of medicine. Despite the intensive treatment, the victim died on February 13, 2008. Soon thereafter, the claim petition was amended on February 17, 2008 and was converted into an application for grant of compensation for death of the victim as a result of succumbing to the accidental injuries. 3. The aforesaid facts are not in dispute. It is nobody's case that the abovementioned vehicles were not involved in the said accident, or that the injuries sustained by the victim were the result of an altogether independent incident, or that the offending vehicle was not insured by the Insurer. Rather, this appeal of the Insurer is based on the evidence recorded by the learned tribunal and whether on that basis the claimants were entitled to recover anything from the Insurer. Rather, this appeal of the Insurer is based on the evidence recorded by the learned tribunal and whether on that basis the claimants were entitled to recover anything from the Insurer. If we summarize the grounds taken briefly, the first is that the death of the victim did not occur because of the accident, but because of the failure of the victim to mitigate its effects by adopting quack remedies such as acupuncture instead of proceeding strictly with the regimen as prescribed by the doctors of Apollo Gleneagles, the second is that there was contributory negligence as held by the learned tribunal and since this was challenged in the cross-appeal, at least composite negligence, and most importantly, that the income of the deceased should have been pegged at Rs.20 lakhs per year less taxes, and the questions of consortium and future prospects should have been calibrated accordingly. In the cross-objection, the claimants have challenged the finding of contributory negligence or even composite negligence on the basis of the evidence recorded, and sought to have the income of the deceased per year to be pegged at a higher level than taken by the learned tribunal. Of course, the claimants have demanded consortium not just for the wife but also the mother of the deceased, though the deceased son was major and married at the time of his death. 4. We propose to deal with the appeal and the cross objection together, since logically the questions raised by the rival parties respectively, must be decided together even if they are in two different proceedings, one of them having the effect of a cross-appeal in the matter. We heard them together of course, in the same hearing. 5. Mr. Rajesh Singh, learned counsel for the appellant-insurer has submitted that the learned tribunal erred both in law and in fact in holding that the victim died because of the accident or that the accident was the proximate cause. It has been urged by the appellant-insurer that the death of the victim did not occur immediately after the accident on May 16, 2007 but the victim died on February 13, 2008 and therefore, the interval between the accident and the death of the victim was almost 9 months apart in time. It has been urged by the appellant-insurer that the death of the victim did not occur immediately after the accident on May 16, 2007 but the victim died on February 13, 2008 and therefore, the interval between the accident and the death of the victim was almost 9 months apart in time. On this ground, the Insurer has sought to contend that the injuries received by the victim at the time of the unfortunate incident cannot be said to be the only cause for his death 9 months after the said incident. Rather, the death of the victim could very well be attributed to reasons independent of the said accident. In fact, the learned counsel took great pains to suggest that the death of the victim is likely to have occurred due to medical negligence on the part of doctors treating the victim after his discharge from Apollo Gleneagles hospital. To buttress this submission, the learned counsel for the Insurer also argued that no autopsy report was filed by the claimants to suggest that the cause of death of the victim was consequential to the accidental injuries received by him. This, he submits, is in contravention to the provisions of Rule 329 (3) of the West Bengal Motor Vehicle Rules, 1989 and therefore, in absence of such an autopsy report the death of the victim cannot be attributed to the said accidental injuries. A submission was even made on behalf of the Insurer that the victim failed to observe the discharge advice given by Apollo Gleneagles Hospital and the Insurer in fact pointed to the treatment of acupuncture resorted to by the victim as a proximate cause for his death, which was not an accidental injury. 6. As against this, the learned counsel for the claimants submits that the provision under Rule 329 (3) of the West Bengal Motor Vehicle Rules, 1989 do not oblige, as a strict rule, the production of the autopsy report but the same is optional. In this regard, for the proper understanding of the provisions of the aforesaid, the relevant portions need to be extracted and are set out herein below: - "(3) There shall be appended to every such application the following documents, namely, (i) Medical certificate in Form COMP B or Post-mortem Report, or Death Certificate; and (ii) First Information Report in respect of the accident." 7. He also places reliance upon a judgment passed by a Division Bench of this Court in Chhalana Dam and Others--v--New India Assurance Co. Ltd. and others reported in 2010 ACJ 1338 , paragraphs 4 and 5 of which seem to be relevant to this case. They are set-out herein below: - "4. As it appears from rules 329 and 330 of the West Bengal Motor Vehicles Rules, in order to maintain an application under section 140 of the Act, the claimant is required to submit the documents, referred to therein. It is not necessary that the postmortem report is a 'must'. Even the death certificate given by a doctor is sufficient for the purpose of maintaining an application under section 140 of the Act. 5. Therefore, we do not find any justification of rejecting the application on the ground of not filing the post-mortem report, when from the materials on record, it has been established that the victim met with the accident and ultimately died without regaining senses." 8. Finally, he submits that since the death certificate as issued by the relevant authorities has been submitted with the claim application, the provisions under Rule 329(3) of the 1989 Rules have been complied with. 9. When cornered at the time of hearing, the learned counsel for the Insurer conceded that the entire submission rests upon the opinion given by one Dr. Dulal Chandra Saha, a Professor and Head of the Department of Orthopedics at the Calcutta National Medical College and Hospital who deposed before the learned tribunal as D.W. 1. For the sake of proper appraisal of the opinion given by the said doctor, we reproduce part of his deposition before the learned tribunal herein below: - "On perusal of aforesaid certificate, I have mentioned in my opinion in the form of certificate which are as follows:- In my opinion alleged death without autopsy report cannot be definitely attributed for the cause of accident which took place 8 months prior to the cause of death. Medical negligence was also due to various types/streams like Chinese medication, therapy, acupuncture, etc. which might have aggravated the elements without following the proper advice of Apollo Gleneagles Hospital, Kolkata. In all such types of accident of patient medical code of conduct stipulates autopsy for confirmation of the cause of death by the autopsy surgeon. Medical negligence was also due to various types/streams like Chinese medication, therapy, acupuncture, etc. which might have aggravated the elements without following the proper advice of Apollo Gleneagles Hospital, Kolkata. In all such types of accident of patient medical code of conduct stipulates autopsy for confirmation of the cause of death by the autopsy surgeon. This conduct was not followed while death certificate was issued" However, in his cross-examination, the aforesaid witness deposed the following: - "The case of death of Amardeep Singh is pulmonary embolism in the case of quadriparesis. Quadriparesis is the weakness of all four limbs of person. Quadriplegia means paralysis of all four limbs in a person. Pulmonary embolism is the blockage of pulmonary vessels of human body by a blood clots etc. Mr. Amardeep Singh suffered quadriplegia on account of accidental injury sustained by him. I cannot say the percentage of recovery of a patient suffered by quadriplegia due to the accidental injury. There are many reasons for pulmonary embolism such as like hypertension cardiac ailments prolonged immobilization in bed due to some diseases. I agree that prolonged immobility is one of the reason of pulmonary embolism. Quadriplegia or paralysis are also reason for pulmonary embolism. Major surgery is also one of the reason for pulmonary embolism. Even the trauma is also one of the reason for pulmonary embolism. Pulmonary embolism is the earlier stage than pulmonary thrombosis. Pulmonary embolism may start from calf muscles. I agree that calf muscle is the second heart of human body after heart. If a person suffered with quadriplegia he shall have no capacity to move his lower limbs. In discharge summary it has not mentioned that patient Mr. Amardeep Singh was suffering that quadriparesis. It has mentioned in the discharge summary that patient Amardeep Singh was suffering with quadriplegia. * * * * * * * * In paragraph 6 of the said letter Senior Divisional Manager of National Insurance Company specifically requested me to prepare the report as per their guideline mentioning some points. YES, as per their guideline I have prepared the report and submit the same before them. * * * * * * * * In our hospital in spite of giving proper treatment death of few patients occurred. Our hospital used to issue death certificate to the patients whose death took place in our hospital. YES, as per their guideline I have prepared the report and submit the same before them. * * * * * * * * In our hospital in spite of giving proper treatment death of few patients occurred. Our hospital used to issue death certificate to the patients whose death took place in our hospital. In death certificate we use to mention cause of death where cause of death were find out. In every cases we do not want to autopsy report at the time of issue of death certificate. In a case where cause of death was detected we do not ask for autopsy report. * * * * * * * * As I did not see any document regarding the follow up advice of Apollo Gleneagles Hospital, I came to the conclusion that patient Amardeep Singh was the victim of medical negligence. I agree that out of presumption, in my opinion that patient Amardeep Singh was a victim of medical negligence. It is fact that as per instruction of Senior Divisional Manager mentioned in his letter (ext. B) I have mentioned that patient Amardeep Singh is the victim of medical negligence. * * * * * * * * Under the circumstances, you are to ascertain as to whether the alleged death without autopsy report can be definitely attributed for the cause of accident which took place around 8 months prior to the date of death expert opinion for the above purpose. If considered, may also project the medical negligence for not following discharge advice of the doctors of Apollo Gleneagles Hospital. Moreover the treatment by the doctors of the various streams like Chinese medication therapy, acupuncture etc. might have aggravated the ailment. Your early report would be highly appreciated. Please note that your report may be questioned by the applicant's counsel for which we must be ready for the supporting documentary evidence" 10. A holistic appreciation of the deposition made by the D.W.1 before the learned tribunal below goes on to show that the initial suggestion of medical negligence was based on a conjecture of the witness. For an expert, opinion evidence is that of which he must have an opinion of his own, in his field of expertise. A holistic appreciation of the deposition made by the D.W.1 before the learned tribunal below goes on to show that the initial suggestion of medical negligence was based on a conjecture of the witness. For an expert, opinion evidence is that of which he must have an opinion of his own, in his field of expertise. Since admittedly he is not an expert in the field of alternative medicine, what the effect of acupuncture or the Chinese system of medicine was or could be, is not within his area of expertise and therefore cannot be safely relied upon. Besides, the evidence does not show that the DW 1 (expert doctor) had gone through the follow up advice of the said Hospital before deposing and therefore, such presumption has no sound basis. We say this because the evidence of the DW 1 discloses that he was deposing before going through the discharge advice from Apollo Gleneagles Hospital which alone would have shown the follow-up advice. Furthermore, as observed towards the concluding part of the said witness' deposition, the said opinion was advanced by the witness according to the direction of the Senior Divisional Manager of the Insurer, and he was thus prepared to support the defence of the Insurer with a sound medical opinion. Admittedly, the said DW 1 is a panel doctor of the Insurer, and there is evidence on record that he was directed by an officer of the Insurer to give his opinion in a particular manner. Such an opinion can hardly have the sanctity, if at all, of an expert opinion which the tribunal or this court can rely upon while upsetting a finding of death due to the accident. Thus, any reliance upon the evidence given by him would not be a safe course of proceeding. We, therefore, rule out any whisper of medical negligence in the death of the victim. 11. This conclusion is further supported by the deposition of one Dr. P.K. Pooviah, medical practitioner working at A.M.R.I. Hospital, Salt Lake who deposed as P.W. 2 before the learned tribunal. The relevant paragraph of the said deposition is set out herein below: - "When I examined the patient at first I heard from the patient party the patient had an accident few months back and was completely paralysed from neck to downwards. The relevant paragraph of the said deposition is set out herein below: - "When I examined the patient at first I heard from the patient party the patient had an accident few months back and was completely paralysed from neck to downwards. The pulmonary embolism is the disease which is caused by a clot formation usually in the leg vein of the patient and this clot breaks and sent into the lungs. Pulmonary embolism clot in the leg can form due to many reasons. Generally, due to immobility of limbs is one of the risk factor. Death of Mr. Amardeep Singh was caused due to pulmonary embolism in a cause of quadriparesis. Quadriparesis is a paralysis of all four limbs. Quadriparesis is defined as inability to move of any all four limbs. On 13.2.08 I examined Amardeep Singh at his residence." 12. Thus, it is clear that the depositions made by the witnesses examined before the learned tribunal at the behest of either party do not rule out pulmonary embolism resulting out of quadriplegia as the main cause of the death of the victim. It is also clear from the discharge summary of the victim issued by Apollo Gleneagles Hospital that the victim suffered from quadriplegia resulting out of the accidental injuries received by him. Therefore, there lies a complete chain of circumstances to suggest that the death of the victim resulted due to pulmonary embolism suffered as a result of the accidental injuries received by him on the night of May 16, 2007 and the effect of the evidence referred to above is such that the situation negates any dispute as to the accident being the cause of death, and the ground taken by the Insurer is so answered. 13. The next point argued before us by the Insurer is that the said accident occurred not only because of negligence on the part of the driver of the offending vehicle but also due to the negligence of the driver of the vehicle in which the victim was travelling. This was vehemently opposed by the learned counsel for the Claimants in the cross-objection. This was vehemently opposed by the learned counsel for the Claimants in the cross-objection. The Learned Counsel for the Insurer, suggests that the victim's vehicle was driven at a very high speed and in a rash and negligent manner due to which the driver of the said vehicle lost control and therefore collided with the offending vehicle coming from the opposite direction. The contention of the Insureris based on the award passed by the learned tribunal below. Therefore, we need to quote the decision of the tribunal on this point: - "Allegation of the claimants was that the dumper was solely responsible for the accident. It has been mentioned in the claim petition that the dumper was coming from the opposite side at a very high speed in a zig-zag manner and all on a sudden the dumper turned to the wrong lane. Though the driver of Honda City controlled its speed and almost stopped the vehicle, the offending driver rushed the dumper and dashed against the middle portion of the private car causing the accident and consequent death of the victim. Now, during evidence claimant/petitioner no.1 Sohna Singh deposed in her affidavit in the same language as stated above. But she has not seen the incident personally. So, her evidence should be excluded as hearsay evidence. The claimants/petitioners further examined one Md. Shakil as the PW-6. This PW-6 in his deposition before the court stated in the year 2007 he used to be the driver of the Honda City Car No. WB-02V/1207. On the fateful night, at about 9.30 p.m. his car faced an accident.PW-6 stated one dumper bearing No. WB-37A/3616 coming from the opposite side suddenly dashed his car in the side of the middle portion. He added that there was a divider in the road for up and down traffic. He was going on his left side on the road. But the dumper suddenly entered into his lane. This driver witness did not produce his driving license before the court. He did produce some documents i.e. one money receipt and a receipt copy from the licensing authority to show that he submitted his driving license for renewal on 18.08.2009. However, fact remains that no copy of the license was even produced before the court to show that this driver Md. Shakil was holding any valid license on the date of accident. However, fact remains that no copy of the license was even produced before the court to show that this driver Md. Shakil was holding any valid license on the date of accident. Be that as it may, during cross examination Md.Shakil admitted that he cannot produce any document to show that he was appointed by the deceased victim to drive his car or that he was authorised to drive this car by the owner of the car by issuing ab authorisation letter. Now, it is to be noted that this driver witness has not mentioned in his deposition before the Tribunal that the offending dumper was coming at a very high speed as alleged by the claimants. This driver witness has not mentioned that the dumper was being driven in rash and negligent manner. He has not mentioned that the driver of the dumper was driving in a zig zag manner as alleged by the claimants. In the claim petition, it has been stated that the offending dumper changed the lane as the original lane was blocked. But the eye witness driver did not stated in deposition that there had been any such blockade. * * * * * * * * * I have already stated the only eye witness of the incident produced by the claimants had not stated in his deposition that the driver of the dumper was driving his vehicle at a high speed, in a rash or negligent manner or in a zig zag manner. So the allegation raised in the claim petition is not sufficiently proved in respect of rash and negligent driving of the offending vehicle's driver. In a case where there has been a face to face collusion (sic for 'collision') between two vehicles running from opposite directions on the road, unless there are sufficient evidence against one of the vehicles for rash and negligent driving, the presumption should be that both the vehicles were rashly and negligently driven in causing the accident. And in the present case the preponderance of probabilities show that the Honda City Car and the driver of the dumper were equally negligent in causing the accident in which the victim died. And in the present case the preponderance of probabilities show that the Honda City Car and the driver of the dumper were equally negligent in causing the accident in which the victim died. Keeping in view of the decision of the Hon'ble Apex Court in many cases including the one reported in 2008 (2) TAC at page -766 and the decision of the Hon'ble High Court reported in 1991 ACJ 403 , the decision of the Hon'ble Punjab High Court reported in 1991 ACJ 651 , if only one of the joint tort-feasors is before the court the award has to be apportioned to the extent of the negligence of that tort feasor who is before the court." 14. Therefore, the presumption of contributory negligence based on alleged preponderance of balance of convenience is contrary to the materials on record including the only ocular witness. It is based on a finding of there being a "face to face collision" which is contrary to the materials on record including the eyewitness account of what happened and where it happened. The deposition made by P.W. 6, being Md. Shakil, the driver of the victim's vehicle in this regard - he being the eyewitness - is quoted below: - "In the year 2007 I was a driver of a vehicle. Mr. Amaedeep Singh was the owner of the said vehicle. Number of the said vehicle is WB-02V/1207. Said car was a Honda City Car. I drove the said Car lastly on 16.05.07. Said car faced an accident on 16.05.07 at about 9.30 p.m. said accident was took place at yatra gachirmor, Rajarhat New Town Road. One Dumper being No. WB-37A/3616 dashed out the said car in the side of middle portion. Said Dumper was coming from the side of Nicco Park and it was going towards Rajarhat side. My vehicle was going towards Nicco Park side from the side of Rajarhat. When I drove my car and when it reached at Yatra Gachi aforesaid dumper was coming from the opposite side and all on a sudden it dashed on the right side middle of my vehicle. On that place there is a division (sic) in the road i.e. for going up and down vehicle. I was going in the left side of the road. Aforesaid dumper all on a sudden entered into my lane i.e. left side road and thereafter dashed me. On that place there is a division (sic) in the road i.e. for going up and down vehicle. I was going in the left side of the road. Aforesaid dumper all on a sudden entered into my lane i.e. left side road and thereafter dashed me. On that time my master Amar Deep Singh was sitting in the right side of back seat of the car and his brother Hardeep Singh was also sitting in the said car in the left side of back seat. At the time of accident I got injury in the right side of face, right leg and left side of chest. Amar Deep Singh also got injury on his person. He got injury on his shoulder. We shifted to Apollo Hospital for treatment. I was treated there. Aforesaid dumper was responsible for the said accident. After the accident of my car was fully damaged. Police did not seize my driving license. Police did not start any case against me. I have filed this case for our compensation. Today I brought my Voters Identity card in support of my identity. Today I did not brought the driving license because I have filed the same before the Motor Vehicles Department and I brought the said receipt. Today I brought those document. I also brought one set of copy of this document duly authenticated by Notary Public marked as Ext. 11 to 13. Cross- Examination Mr. Amardeep Singh did not issue any appointment letter in my favour. I have no document to show that on the aforesaid date I was plying the vehicle of Amar Deep Singh. On the aforesaid date I was going from the side of Rajarhat towards Nicco Park side as I was going to the house of Amar deep Singh at New Alipore. There was a divider in the road for separating the road for up and down journey. I can't say the height of the divider (sic). At the time of accident there was no road light on the road. Offending vehicle entered into my lane in the cutting portion of divider (sic). Just before the moment of accident Amar Deep Singh and his brother did not ask me to stop the vehicle. Just at the time of accident speed of my car was 20/25 k.m. per hour. Offending vehicle entered into my lane in the cutting portion of divider (sic). Just before the moment of accident Amar Deep Singh and his brother did not ask me to stop the vehicle. Just at the time of accident speed of my car was 20/25 k.m. per hour. Just before the moment of accident I saw the offended vehicle from the right side and I kept my car left side of the road. My car was stopped just after pressing of the break by foot. After the accident Police shifted me to Apollo Hospital. Police came in the said spot just after 5 minutes from the said accident. Police did not interrogated me. At the time of accident I had sense and just after the accident I had also sense. I saw the number plate of the offending dumper. After the accident offending dumper was stopped. Amar Deep Singh did not provide any money for my treatment. At present I have no capacity to plying the vehicle because I got injury on the different parts of my body in the said accident. At present I am not able to plying any vehicle. I did not lodge any complaint before the police as I had no such capacity on that moment. Not a fact that aforesaid accident was took place due to my fault. Not a fact that Mr. Amar Deep Singh asked me to stop the vehicle immediately and I did not follow his direction. I deposited Rs. 140/- to the M.V Department because my driving license was broken. My aforesaid license was broken after the accident. I did not file any medical report in M.V Department." 15. The Insurer did not examine the driver of the dumper. The two occupants of the vehicle were both involved in the accident, one being the victim and the other being his brother. The only eyewitness examined was the driver of the victim's vehicle. The aforesaid deposition clearly shows that the said accident occurred when the offending vehicle dashed the victim's vehicle on the middle right side rather than a head-on collision as held by the learned tribunal. The only eyewitness examined was the driver of the victim's vehicle. The aforesaid deposition clearly shows that the said accident occurred when the offending vehicle dashed the victim's vehicle on the middle right side rather than a head-on collision as held by the learned tribunal. It is also clear from the said deposition that the two opposite lanes of the road were divided by a divider and that the offending vehicle entered the lane of the victim's vehicle from the gap between the divider, which is left open to facilitate turning. If the victim's vehicle was travelling at a high speed, the evidence as to the vehicle stopping immediately on application of the brake, would not have been there. A vehicle comes to rest immediately on being braked (the evidence is not that of hand brake being applied) if it is travelling at a comparatively lower speed. In the presence of such clinching and ocular description of the scene of accident, it is difficult to appreciate the case made out by the Insurer by which it has claimed that the entire compensation as awarded by the learned tribunal must be scrapped since the circumstances attached to the case suggests contributory and if not, at least composite negligence. Such finding is in fact contrary to the evidence on record and based on conjectures and surmises to a level which can only be called perverse within the meaning of law. 16. To understand how contributory negligence in motor accident claims cases is established, perhaps the judgment in the case of Meera Devi and Others--v--H.R.T.C. and Others reported in (2014) 4 SCC 511 ought to be considered. At paragraph 10 of the report cited, the Hon'ble Supreme Court was pleased to hold: - "To prove the contributory negligence, there must be cogent evidence. In the instant case, there is no specific evidence to prove that the accident has taken place due to rash and negligent driving of the deceased scooterist. In the absence of any cogent evidence to prove the plea of contributory negligence, the said doctrine of common law cannot be applied in the present case. We are, thus, of the view that the reasoning given by the High Court has no basis and the compensation awarded by the Tribunal was just and reasonable in the facts and circumstances of the case." 17. We are, thus, of the view that the reasoning given by the High Court has no basis and the compensation awarded by the Tribunal was just and reasonable in the facts and circumstances of the case." 17. In this case too, there was no evidence of rash and negligent driving. Therefore, the question of contributory negligence could not arise and the finding in this regard of the learned tribunal cannot be sustained and we agree with Mr. Mondal for the cross-objector/claimant that the reduction of the compensation payable by the Insurer to fifty percent of the sum awarded cannot be sustained. 18. The Insurer has then argued composite negligence to oust its own liability and suggest that the entire liability falls upon the owner of the vehicle in which the victim was travelling. 19. In order to understand the concept of composite negligence vis-a-vis contributory negligence, a brief reference to the following paragraphs of the judgment of the Hon'ble Supreme Court in the case of T.O. Anthony--v-- Karvarnan and Others reported in (2008) 3 SCC 748 must be made "6. Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence. 7. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence. 7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore, where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error." 20. From the testimony of the sole eye-witness to the scene of the accident, it is clear that the offending vehicle was solely responsible for rashly entering the lane of the victim's vehicle and thereby dashing the same on the middle portion of its right side. The basis for the presumption of composite negligence is thus absent, and thus it is not possible on the face of the evidence on record to entertain any argument of composite negligence. 21. In our opinion, even though a judicial opinion may rest upon a presumption of a fact, such a presumption cannot arise in the presence of unimpeachable evidence to the contrary. The presumption raised by the learned tribunal was that both the vehicles were driven in a rash and negligent manner and that the offending vehicle was only partially liable for the resulting collision due to which the liability of the appellant-insurer is limited only to the extent of one-half of the compensation sought by the claimants/cross objectors. This goes on to show that the learned tribunal gave only a ceremonial glance to the testimony of the eye-witness, being the driver of the victim vehicle without appreciating the complete effect of his evidence. This goes on to show that the learned tribunal gave only a ceremonial glance to the testimony of the eye-witness, being the driver of the victim vehicle without appreciating the complete effect of his evidence. As we have held above, inter alia at paragraph 15 of this judgment, such findings are perverse within the meaning of law and contrary to the materials on record. 22. Now that the Insurer was faced with a situation where the death of the victim due to the accident and the cause of the accident were determined, as we have held above, he impeached the award on the ground that it was passed without proper application of the provisions of the 1988 Act as well as the Rules made there under. He submitted that this was because the learned tribunal relied upon documents inappropriate and irrelevant to the case in hand whereas relevant evidence and exhibits as presented by the Insurer before the learned tribunal were not sufficiently appreciated and appraised in their right perspective. 23. The first thing Mr. Singh submitted on this count is a strange contradiction in the order of the learned tribunal. The learned tribunal had held that the victim was in the age-group of 41 to 45 years at the time of his death but had awarded future prospects on the basis of 50% of his annual income. Mr. Singh rightly submitted that if the principles applicable in terms of the law settled by the Hon'ble Supreme Court were applied, for the age group of 41 to 45 years, the sum would be 40% of the annual income and not 50%. Admittedly, the victim was born on August 8, 1967 according to the date of birth recorded in his passport which was exhibited. Therefore, as on the date of the accident on May 16, 2007, he was 39 years, 9 months and 9 days old, whereas on the date of his death being February 13, 2008 he was approximately 40 years 6 months and five days old. Thus victim was well under 40 years on the date of the accident and was not to be put within the age-group of 41-45 years. Thus victim was well under 40 years on the date of the accident and was not to be put within the age-group of 41-45 years. It has to be noted that even though the learned tribunal put the victim within the age- group of 41-45 years, the future prospects awarded to the victim was 50% i.e. the future prospects for victim under the age of 40. 24. However, the claims of both the parties before this court rests upon a fine line of distinction drawn from the facts of the case in hand. On the one hand, the Insurer contends that the age of the victim has to be taken as on the date of death while awarding future prospects which in this case would yield a lower multiplier and also a lower percentage of future prospects, while on the other, the claimants/cross objectors have submitted that the relevant date for calculating the age of the victim must be the date on which the accident took place. In our opinion, a deadlock like this has to be answered keeping in mind the decision of the Hon'ble Supreme Court in Shashikala and Others--v--Gangalakshmamma and Others reported in (2015) 9 SCC 150 and placed before us by the Learned counsel for the claimants/cross objectors in support of the proposition that the date of death of the victim is immaterial and rather it is the date of the accident which is relevant to the computation of liability of the Insurer arising out of the said accident. In its judgment, the Hon'ble Supreme Court held: - "Paragraph 17 : Insofar as appropriate multiplier, the date of birth of the deceased as per driving licence was 16.6.1961. On the date of accident i.e. 14.12.2006, the deceased was aged 45 years, 5 months and 28 days and the tribunal has taken the age as 46 years. Since the deceased has completed only 45 years, the High Court has rightly taken the age of the deceased as 45 years and adopted multiplier 14 which is the appropriate multiplier and the same is maintained. Total loss of dependency is calculated at Rs. 16,82,310/- (Rs. 1,20,165/- x 14)." 25. Since the deceased has completed only 45 years, the High Court has rightly taken the age of the deceased as 45 years and adopted multiplier 14 which is the appropriate multiplier and the same is maintained. Total loss of dependency is calculated at Rs. 16,82,310/- (Rs. 1,20,165/- x 14)." 25. In such view of the matter, it is clear that the calculation of the age of the victim for the purpose of awarding future prospects must be as on the date on which the accident took place irrespective of when the victim died. Therefore, we find no reason to interfere with the award passed by the learned Tribunal so far as the issue of future prospects is concerned calculating his age at the time of his accident as the same corresponds to the guidelines laid down by a Constitution Bench of the Hon'ble Supreme Court at paragraph 59.3 of its judgment in National Insurance Company Limited--v--Pranay Sethi and others reported in AIR 2017 SC 5157 which held: "Paragraph 59 (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." 26. This brings us to the issue of the relevant income of the victim which needs to be considered for the purpose of determining just and equitable compensation for his dependents. In this regard, the Insurer contends that the reliance placed by the learned tribunal upon the Income Tax Return of the victim for the Assessment Year 2007-08 to assess the income of the victim for the purpose of ascertaining the amount of compensation is not tenable. He suggested, at the time of hearing, that since the IT Return for the Assessment Year 2007-08 was filed after the death of the deceased, the Insurer reasonably apprehends that the income of the victim might have been tampered with in order to present an inflated amount of compensation. The learned tribunal calculated the annual income of the victim, after necessary deduction of the income tax, at Rs. The learned tribunal calculated the annual income of the victim, after necessary deduction of the income tax, at Rs. 20,10,649/- for the Financial Year 2007-08 relying upon the assessment order along with income tax return submitted to the income tax authorities. 27. The learned counsel for the claimants/cross objectors relied on the other hand, upon Form-16 of the deceased/victim submitted for the period between April 1, 2007 and April 30, 2007 which shows the monthly income of the victim at Rs. 3,40,394/- and Tax deducted at source at Rs. 61,536/- and the tax refundable for that month at Rs. 11,099/-. This was exhibited as Exhibit 20 at page 54 of the paper book, by the claimants/cross-objectors. Since the TDS for the said amount was deposited on May 07, 2007, it was contended that this amount should be taken to calculate the income of the victim. He also relied upon a letter dated May 08, 2007 exhibited as Ext. 26 at page 278 of the paper-book which proclaims that the annual emoluments of the victim were revised to Rs. 35,00,000/- per annum. It is this income minus the taxes, he suggests, that should be taken as the income of the victim for computation of the amount of compensation. 28. In this backdrop, if the income as disclosed from the Form-16 of the victim submitted for the period between April 1, 2007 and April 30, 2007 is accepted it is seen that the TDS in respect of such income was made, that is to say, the deduction was made, prior to the death of the victim, and therefore stood to his credit as what had already been paid as tax. In other words, it is a declaration of his employer to his prejudice, submitted by him to the Income Tax authorities and therefore is a declaration which goes against his interest for the statutory purpose for which it was shown. So, it can be relied upon in favour of his estate to show what was his annual income less taxes as on the date of the accident and/or immediately before it. Therefore, the apprehension of the Insurer would be satisfactorily answered as no claim of tampering of records pertaining to the income of the victim could be alleged before the death of the of the victim. Therefore, the apprehension of the Insurer would be satisfactorily answered as no claim of tampering of records pertaining to the income of the victim could be alleged before the death of the of the victim. So we accept, in modification of the findings of the learned tribunal, as proposed by the claimants/cross-objectors, that the annual income of the victim at the time of the accident was to be taken as Rs.34,78,756/- as it works out by multiplying the monthly income in Form 16 exhibited, by twelve to come to the annual income of the victim and the compensation was to be awarded accordingly basing the calculation thereon, as just compensation, which the learned tribunal did not do. 29. Lastly, we refer to the contentions of the learned counsel for the claimants/cross objectors on the issue that an additional amount towards loss of consortium should have been awarded for the claimant-mother of the victim as loss of filial consortium due to the loss of her son. The award of an amount towards loss of consortium has been settled by the Hon'ble Supreme Court in Pranay Sethi (Supra) wherein the Hon'ble Apex Court, after visiting its own precedents, held the following: "Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The principle of revisiting the said heads is an acceptable principle." The Hon'ble Apex Court even noted that in different cases different amounts have been granted. For example, a sum of Rs. 1,00,000/- was granted towards compensation to children for loss and affection of a deceased father in the case of Rajesh and Others--v--Rajbir Singh and Others reported in (2013) 9 SCC 54 . In this regard, the Hon'ble Apex Court in Pranay Sethi (supra) held the following: "54. As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh. It has granted Rs. 25,000/- towards funeral expenses, Rs. 1,00,000/- loss of consortium and Rs.1,00,000/- towards loss of care and guidance for minor children. The head relating to loss of care and minor children does not exist. Though Rajesh refers to Santosh Devi, it does not seem to follow the same. It has granted Rs. 25,000/- towards funeral expenses, Rs. 1,00,000/- loss of consortium and Rs.1,00,000/- towards loss of care and guidance for minor children. The head relating to loss of care and minor children does not exist. Though Rajesh refers to Santosh Devi, it does not seem to follow the same. The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb Rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb Rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided." 30. It is therefore clear that the amount towards loss of estate, loss of consortium and funeral expenses has already been quantified by the Hon'ble Supreme Court at Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. Therefore, no further amount shall be granted towards loss of consortium beyond the figure provided above. Once the Constitution Bench judgment of the apex court is cited before us, which we must respectfully apply, we do not have the luxury of subscribing to a different view as it is a law laid down within the meaning of Article 141 of the Constitution of India, even if we thought differently, which we do not. 31. The learned counsel for the claimants/cross objectors brought to our notice a judgment passed by a Division Bench of the Hon'ble Supreme Court in Magma General Insurance Co. Ltd.--v--Nanu Ram and Others reported in 2018 ACJ 2782 equivalent to MANU/SC/1012/2018 whereby an amount of Rs. 40,000 each for loss of filial consortium was awarded to the father and the sister of the deceased in that case. Our difficulty in relying upon the aforesaid judgment is that even though a reference of the decision of a larger bench in Pranay Sethi (supra) was made, the law regarding payment of consortium as laid down therein was departed from in Nanu Ram (supra). Our difficulty in relying upon the aforesaid judgment is that even though a reference of the decision of a larger bench in Pranay Sethi (supra) was made, the law regarding payment of consortium as laid down therein was departed from in Nanu Ram (supra). In view of the position of law and the provisions of Article 141 of the Constitution of India, however, Nanu Ram (supra) is at best a decision under Article 142 of the Constitution of India, to do complete justice to the parties in the facts and circumstances of the case, which power we do not have as a court of appeal under Section 173 of the 1988 Act. We continue to be bound by Pranay Sethi (supra). 32. Even otherwise, the decision in Nanu Ram (supra) does not apply to the present case on facts. In Nanu Ram (supra), the victim was a 25-year old bachelor whose dependents included his unmarried sister and his father while the victim in this case is married and survived by his mother, a wife and two daughters. In this backdrop, no other amount towards loss of consortium could be awarded as filial consortium to the mother of the victim. In fact, the Hon'ble Supreme Court in Nanu Ram (supra) clarified the applicability of its decision in the following words: "The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium. Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act. A few High Courts have awarded compensation on this count. However, there was no clarity with respect to the principles on which compensation could be awarded on loss of Filial Consortium." Therefore, the Hon'ble Supreme Court has clearly held in Nanu Ram (supra) that the peculiar facts of that case, where a parent or parents lost their minor child or unmarried son or daughter, they were allowed to be awarded loss of consortium. In the present case, the parent claiming amounts for loss of consortium admittedly was not the parent of an unmarried son or minor son for whose death due to the accident the compensation is payable. In the present case, the parent claiming amounts for loss of consortium admittedly was not the parent of an unmarried son or minor son for whose death due to the accident the compensation is payable. In such view of the matter, taking aid of the structured formula for the calculation of the amount of compensation as laid down in Pranay Sethi (Supra) is binding on us. 33. Finally, the claimants/cross-objectors have also claimed for payment for an amount of Rs. 11,83,822/- towards medical expenses incurred for the treatment of the victim and paid for by virtue of the Mediclaim policy of the victim. It has been the contention of the claimants that they are entitled to the aforesaid amount on account of various judicial precedents being decision of the Hon'ble Apex Court as well as this Court. In order to prevent a multiplication of precedents we refer to the foremost judgment in this regard passed by the Hon'ble Supreme Court in Helen C. Rebello and Others--v-- Maharashtra State Road Transport Corpn. and Others reported in (1999) 1 SCC 90 which lays down the following: "34. This being so, we finally revert to the question, which is in issue for consideration, whether the compensation computed under 1939 Act, the life insurance amount received by the claimants occasioned by the death of the deceased, is deductible from it or not? 35. Submission by the learned counsel for the appellants is, the insurance money is by virtue of a contractual relationship between the deceased and the Insurance Company and is payable to the legal heirs of the deceased in terms of the contract. Such money cannot be said to have been received by the heirs only on account of the death of the deceased, but truly it is a fruit of the premium paid by the deceased during his life time. The deceased bought this insurance policy as an act of his prudence, to confer benefit either to himself or to his heirs in case of death. This amount is receivable by the claimant irrespective of the accidental death, even if he would have died the natural death. He further submits that the interpretation given by the High Court confers benefit to the tortfeasor for his negligence and wrong to the untimely death without any contribution by him. It permits him to escape from the liability cast by the statute. He further submits that the interpretation given by the High Court confers benefit to the tortfeasor for his negligence and wrong to the untimely death without any contribution by him. It permits him to escape from the liability cast by the statute. Thus, his submission is, any amount payable under any contract of social assurance or any insurance, ought not to be deducted as the same is payable to the heirs because of the contract and not on account of the death of the insured person. Referring on the dictionary meaning of the word 'compensation', he submits it would mean anything given to make things equal in value. He submits that in this case the death of the deceased-husband of the claimant was due to the negligence of the respondent has to be offset by a just equivalent, where claimants are put back in position where they would have been but for such death. On this, he draws the conclusion, the benefits of insurance policy cannot be deducted while awarding the compensation. On the other hand, learned counsel for the respondents restricted the argument as was advanced before the High Court and submitted, the High Court, after considering all aspects including English decisions and the decisions of this Court, rightly concluded to deduct the life insurance money out of the compensation payable to the claimant. 36. So far as the general principle of estimating damages under the common law is concerned, it is settled that the pecuniary loss can be ascertained only by balancing on one hand, the loss to the claimant of the future pecuniary benefits that would have accrued to him but for the death with the "pecuniary advantage" which from whatever source comes to him by reason of the death. In other words, it is the balancing of loss and gain of the claimant occasioned by the death. But this has to change its colour to the extent a statute intends to do. Thus, this has to be interpreted in the light of the provisions of the Motor Vehicles Act, 1939. It is very clear, to which there could be no doubt that this Act delivers compensation to the claimant only on account of accidental injury or death, not on account of any other death. Thus, the pecuniary advantage accruing under this Act has to be deciphered, co-relating with the accidental death. It is very clear, to which there could be no doubt that this Act delivers compensation to the claimant only on account of accidental injury or death, not on account of any other death. Thus, the pecuniary advantage accruing under this Act has to be deciphered, co-relating with the accidental death. The compensation payable under the Motor Vehicles Act is on account of the pecuniary loss to the claimant by accidental injury or death and not other forms of death. If there is natural death or death by suicide, serious illness, including even death by accident, through train, air flight not involving motor vehicle, would not be covered under the Motor Vehicles Act. Thus, the application of general principle under the common law of loss and gain for the computation of compensation under this Act must co-relate to this type of injury or deaths, viz., accidental. If the words 'pecuniary advantage' from whatever source are to be interpreted to mean any form of death under this Act it would dilute all possible benefits conferred on the claimant and would be contrary to the spirit of the law. If the 'pecuniary advantage' resulting from death means pecuniary advantage coming under all forms of death then it will include all the assets movable, immovable, shares, bank accounts, cash and every amount receivable under any contract. In other words, all heritable assets including what is willed by the deceased etc. This would obliterate both, all possible conferment of economic security to the claimant by the deceased and the intentions of the legislature. By such an interpretation the tortfeasor in spite of his wrongful act or negligence, which contributes to the death, would have in many cases no liability or meagre liability. In our considered opinion, the general principle of loss and gain takes colour of this statute, viz., the gain has to be interpreted which is as a result of the accidental death and the loss on account of the accidental death. Thus, under the present Act whatever pecuniary advantage is received by the claimant, form whatever source, would only mean which comes to the claimant on account of the accidental death and not other form of death." 34. Mediclaim policy is taken out by the victim (in case the deceased victim in his lifetime) from the own income of the victim. The insured pays the premia from his own income. Mediclaim policy is taken out by the victim (in case the deceased victim in his lifetime) from the own income of the victim. The insured pays the premia from his own income. The payment there under to the victim's nominee in terms of the insurance policy of Mediclaim is based on a contractual obligation to the victim by his insurer. On the other hand, the nature of a just compensation under Section 166 of the Motor Vehicles Act, 1988, awarded against an insurer of a vehicle which collided with the vehicle of the victim, and caused the accident, is an example of statutory and third party liability, assumed by the insurer of a vehicle other than that of the victim and is not contractual but statutory. Therefore, asking him to forego the amount of medical expenses incurred by him as an effect of the accident, on the specious ground that he has already been compensated for it by his own insurer under Mediclaim, is not well- founded. We have held as much in an earlier judgment delivered by us, in the case of The New India Assurance Company Limited--v--Bimal Kumar Shah and Another reported in 2018 SCC Online Cal 10368 equivalent to MANU/WB/1508/2018 where we have held as follows: - "The liability of an insurer providing insurance through Mediclaim to the victim for the medical expenses incurred by him for an accident or hospitalization, subject to a limit and based on the premiums paid by the victim by bilateral contract between the victim and his insurer, is distinct, separate and wholly different from, and independent of the liability imposed on the appellant as the insurer of the offending vehicle and its owner from third party risks in case of accident, and is provided for, created and imposed by the Motor Vehicles Act, 1988. It is not contractual as far as the victim, a third party, is concerned." 35. We do not feel any requirement to depart from our reading of the law as laid down by the Apex Court and as interpreted by us respectfully agreeing with it, even though Bimal Kumar Shah (supra) related to amputation of a limb rather than death, since the principles of Mediclaim being a product of contractual liability and just compensation for third party risks being a statutory liability are the same as have been laid down therein. 36. 36. We reiterate that on the basis of our observations at paragraph 25 we find that since the age of the victim at the time of the accident was below 40 years, the multiplier to be applicable in this case would be 15 and not 14 as taken by the learned tribunal. 37. In order to avoid further complications, the payment of compensation as directed above is to be made as follows: (i). Annual income of the deceased will be taken as Rs. 34,78,756/-. (ii). An addition of 50% of the annual income amounting to Rs. 17,39,378/- shall be made towards future prospects which would increase the aforesaid amount to Rs. 52,18,134/-. (iii). A deduction towards personal expenses to the tune of 1/4th of the aforesaid amount amounting to Rs. 13,04,533/- has to be carried out, thus making the amount of dependency to stand at Rs. 39,13,601/-. (iv). After the application of the appropriate multiplier being 15 the amount of compensation to be awarded would be Rs. 5,87,04,015/-. (v). A further amount towards loss of estate, loss of consortium and funeral expenses must be awarded at Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. (vi). The total compensation directed to be paid to the claimant/cross objector is Rs. 5,87,74,015/-. 38. The present appeal is decided as per the terms above. 39. By an order dated August 22, 2017 this court had granted the claimants leave to withdraw 50% of the sum deposited by the Insurer, being Rs.Rs.1,59,46,360/- which they had done, and account payee cheques were issued to them. The sum thus deposited therefore is to be deducted from the total amount of the award as modified by us. It is therefore, directed that the Insurer shall make payment of the balance amount of the award being Rs. 4,28,27,655/- by four separate account payee cheques made out for one fourth of the said amount to each of the claimants on account of the death of the victim along with interest @ of 7% per annum from the date of filing of the claim petition i.e. July 23, 2007 within three months from the date of this order. We find no reason to revisit the rate of interest determined by the learned tribunal in this case. In addition, the claimants shall be entitled to apply for withdrawal of the remaining 50% of the sum deposited (Rs.1,59,46,360/-) which is Rs. We find no reason to revisit the rate of interest determined by the learned tribunal in this case. In addition, the claimants shall be entitled to apply for withdrawal of the remaining 50% of the sum deposited (Rs.1,59,46,360/-) which is Rs. 79,73,180/-, and any accumulation thereto on count of interest, which has been kept in an auto-renewable short term deposit by the Registrar General of this Court, and on such application being made, the learned Registrar General shall after proper calculation and on satisfaction of the identity of the claimants pay to them through the widow (claimant No.1) the said sum, as expeditiously as possible, but preferably within two months from the date of this order. All payments shall be made to the claimants who shall furnish their respective bank account numbers and computerized codes for online transaction and/or RTGS methods of deposit, to the Insurer and the learned Registrar General. 40. The appeal therefore is dismissed on all grounds. The cross- objection is allowed partially as appears from above. Since we have discussed the questions raised by the appeal and the cross objection together, this order which in effect dismisses the appeal and partially allows the cross-objection, shall operate in modification of the award dated June 28, 2016 to the extent mentioned above, in paragraphs 37 and 38. 41. By an order dated February 6, 2018 we had reserved the assessment of the costs for adjournment of the day's hearing due to the fault of the Insurer to the final disposal of the appeal, and since we have dismissed the appeal, we assess the costs to be Rs.25,000/- which coincidentally is also the amount of statutory deposit made by the Insurer which therefore does not have to be refunded. 42. With the aforesaid directions, both the appeal in F.M.A. No. 464 of 2017 as well as the Cross-appeal in C.O.T. No. 7 of 2017 are disposed of with costs as aforesaid.