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2021 DIGILAW 451 (HP)

Balvinder Singh v. Vijay Kumar

2021-07-23

SANDEEP SHARMA

body2021
JUDGMENT : Sandeep Sharma, J. 1. Above captioned appeals emanate from Award dated 8.2.2019, passed by learned Motor Accident Claims Tribunal-II, Una, District Una, Himachal Pradesh, whereby learned Tribunal below, while allowing claim petition filed under S. 166 of the Motor Vehicles Act (hereinafter, 'Act') having been filed by claimants i.e. appellants in FAO(MVA) No. 494 of 2019, held Balvinder Singh, appellant in FAO(MVA) No. 188 of 2019, (owner of the offending vehicle bearing registration No. HP-20C-5969) liable to pay Rs. 3,85,000/- alongwith interest at the rate 9% per annum from the date of petition till realization, to the claimants in equal shares, on account of death of late Karam Chand in road accident. 2. Former appeal i.e. FAO No. 188 of 2019 has been filed by Balvinder Singh, owner of offending vehicle bearing registration No. HP-26C-5969, for setting aside impugned Award, inasmuch as he has been held liable to pay compensation, whereas, latter appeal i.e. FAO No. 494 of 2019 has been preferred by Vijay Kumar and Saroj Kumari, claimants, for enhancement of the compensation. 3. Parties are referred to as per their status in the FAO(MVA) No. 188 of 2019, for the sake of convenience. 4. Respondents Nos. 1 and 2 (hereinafter, 'claimants') filed a claim petition before learned Tribunal below, under S. 166 of the Motor Vehicles Act, praying therein for grant of compensation to the tune of Rs. 50.00 Lakh on account of death of late Shri Karam Chand, in a roadside accident, claiming themselves to be the dependents and legal heirs of the deceased. It transpires from the record that on 22.7.2017, deceased was traveling on his scooty bearing registration No. HP-80-0403 from village Pandoga towards his house. At about 2.15 pm when deceased reached main road from link road, a car bearing registration No. HP-20C-5969, being driven by respondent No. 4, Akash Kumar, in a rash and negligent manner, hit the scooty of the deceased, as a result of which the deceased fell on the road. Though the deceased was shifted to RH Una, immediately after accident, but he unfortunately died on the same day. As per claimants, deceased remained in hospital on 22.7.2017 and they spent Rs. 50,000/- on his medical treatment and last rites. Though the deceased was shifted to RH Una, immediately after accident, but he unfortunately died on the same day. As per claimants, deceased remained in hospital on 22.7.2017 and they spent Rs. 50,000/- on his medical treatment and last rites. Accident is alleged to have taken place due to rash and negligent driving of the car by respondent No. 4 Claimants claimed before learned Tribunal below that the deceased was the only earning member of the family and as such on account of his demise, claimants have suffered huge financial loss and as such, they deserve to be compensated. 5. Respondent/claimant No. 1 averred in the petition that he was living with the deceased and also contributed to the income of family being one of the earning members, whereas, petitioner No. 2 is married but she was also supported and provided gifts on the occasions of festivals by the deceased Karam Chand. Claimants claimed before learned Tribunal below that sudden demise has brought an unbridgeable gulf in their lives and as such, they deserve compensation to the tune of 50.00 Lakh on account loss of future prospects, estate and love and affection and on account of funeral expenses. 6. Aforesaid claim of the claimants came to be resisted on behalf of appellant and respondent No. 4, who happen to be the owner and driver, respectively of the offending vehicle on the ground that a false FIR has been registered against them for claiming compensation. Aforesaid persons stated before learned Tribunal below that vehicle bearing registration No. HP-25C-5969 is not involved in the accident and at the time of accident, the vehicle in question was not being driven by respondent No. 4. Besides this, aforesaid persons submitted before learned Tribunal below that the petitioners are having inimical relations with them, as such, claimants after deliberation got recorded false FIR and got involved their car in the incident. 7. Respondent No. 3-Insurance Company, insurer of the vehicle involved in the accident resisted the claim of the claimants on the ground that driver of the offending vehicle was not holding effective driving licence at the time of accident and as such, it is not liable to indemnify the insured. 7. Respondent No. 3-Insurance Company, insurer of the vehicle involved in the accident resisted the claim of the claimants on the ground that driver of the offending vehicle was not holding effective driving licence at the time of accident and as such, it is not liable to indemnify the insured. Besides above, respondent No. 3 also stated that respondent No. 4 and 5 are minors and they were not holding effective driving licence and as such, vehicle in question was being driven in violation of terms of insurance policy and as such, it cannot be burdened with liability to pay compensation to the claimants, on account of death of late Karam Chand. 8. On the basis of pleadings of the parties, learned Tribunal below framed following issues on 19.5.2018:- "1. Whether on 22.7.2017, at about 2.15 a.m., at village Pandoga, Tehsil and district Una (HP), deceased Karam Chand (father of claim petitioners) died in a road accident due to rash and negligent driving of vehicle bearing registration No. HP-20C-5969 being driven by respondents No. 2 or 3 i.e. (Parkash Kumar or Devinder Kumar) owned by respondent No. 1, as alleged? OPP 2. If issue No. 1 is proved in affirmative, for what amount of compensation, the petitioners/claimants, are entitled for, and from whom? OPP 3. Whether the petitioner is not maintainable, as alleged? OPR 4. Whether driver of the aforesaid vehicle was not holding valid and effective driving licence at the time of accident, as alleged? OPR 5. Whether the vehicle in question bearing registration No. HP-20C-5969 was being driven in violation of terms of the Insurance Plicy and against the provisions of Motor Vehicle Act, as alleged? OPR 6. Relief." 9. Subsequently, on the basis of evidence led on record by respective parties, learned Tribunal below held appellant Balwinder Singh, who is driver/owner of vehicle liable to pay Rs. 3,85,000/- alongwith interest at the rate of 9% from the date of filing of the petition till realization on account of death of Karam Chand. In the aforesaid background, appellant Balwinder Singh has approached this court in FAO No. 188 of 2019, praying there in to set aside the impugned Award. 10. Respondents Nos. 3,85,000/- alongwith interest at the rate of 9% from the date of filing of the petition till realization on account of death of Karam Chand. In the aforesaid background, appellant Balwinder Singh has approached this court in FAO No. 188 of 2019, praying there in to set aside the impugned Award. 10. Respondents Nos. 1 and 2 being aggrieved on account of quantum of compensation awarded by learned Tribunal below, while allowing their claim petition, have approached this court for enhancement of award by way of FAO No. 494 of 2019. 11. I have heard the parties and gone through the records of the case. 12. Appellant Balwinder Singh on whom the liability to pay compensation has been fastened, has primarily laid challenge to impugned Award on the following grounds: 1. Since claimant No. 1 is 33 years of age and earning Rs. 10,000-15,000/- per month and claimant No. 2, aged 37 years, is married, learned Tribunal below could not award any amount in favour of aforesaid claimants, considering them to be dependents of deceased Karam Chand. 2. Learned Tribunal below wrongly considered the income of deceased as Rs. 9,000/- per month since it is evident from pleadings and evidence that deceased was more than 65 years of age and no evidence ever came to be adduced on record with respect to income of the deceased, learned Tribunal below, erred in taking the monthly income of the deceased to be Rs. 9,000/-. 3. Learned Tribunal below, erred while deducting 1/3rd on account of personal expenses of the deceased, especially when it stood proved on record that the wife of the deceased had already died since and son i.e. respondent No. 1 was earning Rs. 10,000-15,000/- from electrical shop. 4. Once it stood proved from the statement of PW-3 Satish Kumar that no accident occurred with the vehicle of the appellant (driver-cum-owner of the offending vehicle), learned Tribunal below could not have awarded any amount of compensation in favour of claimants, being legal heirs of the deceased. 13. Shri Tek Chand, learned counsel appearing for the appellant Balwinder Singh vehemently argued that once it stands duly admitted by claimant No. 1, Vijay Kumar that he earns Rs. 10,000-15,000/- from the electrical shop and claimant No. 2 is married, learned Tribunal below ought not have granted any compensation on account of loss of dependency. 13. Shri Tek Chand, learned counsel appearing for the appellant Balwinder Singh vehemently argued that once it stands duly admitted by claimant No. 1, Vijay Kumar that he earns Rs. 10,000-15,000/- from the electrical shop and claimant No. 2 is married, learned Tribunal below ought not have granted any compensation on account of loss of dependency. In support of aforesaid contention, above named counsel placed reliance upon judgment dated 27.7.2018 rendered by a Co-ordinate Bench of this Court in FAO(MVA) No. 53 of 2018, Shriram General Insurance Company Ltd. v. Ram Krishan and others, wherein Court while placing reliance upon judgment rendered by Hon'ble Apex Court in Manjuri Bera v. Oriental Insurance Company Ltd., (2007) 10 SCC 643 , has held that even if there is no dependence, yet there is loss to the estate of person and a person, who is legal representative and not a dependent, can yet be a beneficiary of the estate. Coordinate Bench, while partly allowing appeal of the insurance company in the aforesaid case, has held that the claimants can in addition to the amounts, awarded under S. 140 of the Motor Vehicles Act can be held entitled to compensation under conventional heads in terms of judgment in National Insurance Company Ltd. v. Pranay Sethi, 2017 ACJ, 2700 rendered by Hon'ble Apex Court. 14. Careful perusal of aforesaid judgment rendered by Coordinate Bench of this Court reveals that a person, who is legal heir but not a dependent can be beneficiary of the estate. Even if there is no dependence, but if there is loss of the estate, a person who is legal heir but not dependent can yet be beneficiary of the estate and can be awarded compensation on account of loss of estate. 15. Recently, Hon'ble Apex Court in judgment dated 13.1.2020 passed in National Insurance Company Limited v. Birender and Ors., Civil Appeals Nos. 242-243 of 2020, arising out of SLP(C) Nos. 976-977 of 2020 has held that the legal representatives of the deceased could move application for compensation by virtue of clause (c) of S. 166(1). A major married son, who is also earning and not fully dependant on the deceased, would be still covered by the expression "legal representative" of the deceased. 242-243 of 2020, arising out of SLP(C) Nos. 976-977 of 2020 has held that the legal representatives of the deceased could move application for compensation by virtue of clause (c) of S. 166(1). A major married son, who is also earning and not fully dependant on the deceased, would be still covered by the expression "legal representative" of the deceased. While referring to earlier judgment rendered in Manjuri Bera supra, Hon'ble Apex Court in its latest judgment in Birender (supra) has reiterated that the liability to pay compensation under the Act does not cease because of absence of dependency of the concerned legal representative. In the aforesaid case, Hon'ble Apex Court framed following three issues for determination and held as under: "13. Reverting to the first issue that needs to be answered on the basis of the scheme of the Act. Section 166 of the Act provides for filing of application for compensation by persons mentioned in clauses (a) to (d) of sub Section (1) thereof. Section 166 of the Act, as applicable at the relevant time, reads thus: "Section 166. Application for compensation. (1) An application for compensation arising out of an accident of the nature specified in subsection (1) of section 165 may be made (a) by the person who has sustained the injury; or (b) by the owner of the property; or (c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or (d) by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be: Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application. (2) Every application under subsection (1) shall be made, at the option of the claimant, either to the Claims Tribunal having jurisdiction over the area in which the accident occurred or to the Claims Tribunal within the local limits of whose jurisdiction the claimant resides or carries on business or within the local limits of whose jurisdiction the defendant resides, and shall be in such form and contain such particulars as may be prescribed: Provided that where no claim for compensation under Section 140 is made in such application, the application shall contain a separate statement to that effect immediately before the signature of the applicant. (3) *** (4) The Claims Tribunal shall treat any report of accidents forwarded to it under subsection (6) of section 158 as an application for compensation under this Act." (emphasis supplied) 14. The legal representatives of the deceased could move application for compensation by virtue of clause (c) of Section 166(1). The major married son who is also earning and not fully dependant on the deceased, would be still covered by the expression "legal representative" of the deceased. This Court in Manjuri Bera (supra) had expounded that liability to pay compensation under the Act does not cease because of absence of dependency of the concerned legal representative. Notably, the expression "legal representative" has not been defined in the Act. In Manjuri Bera (supra), the Court observed thus: "9. In terms of clause (c) of subsection (1) of Section 166 of the Act in case of death, all or any of the legal representatives of the deceased become entitled to compensation and any such legal representative can file a claim petition. The proviso to said subsection makes the position clear that where all the legal representatives had not joined, then application can be made on behalf of the legal representatives of the deceased by impleading those legal representatives as respondents. Therefore, the High Court was justified in its view that the appellant could maintain a claim petition in terms of Section 166 of the Act. 10. .....The Tribunal has a duty to make an award, determine the amount of compensation which is just and proper and specify the person or persons to whom such compensation would be paid. The latter part relates to the entitlement of compensation by a person who claims for the same. 11. 10. .....The Tribunal has a duty to make an award, determine the amount of compensation which is just and proper and specify the person or persons to whom such compensation would be paid. The latter part relates to the entitlement of compensation by a person who claims for the same. 11. According to Section 2(11) CPC, "legal representative" means a person who in law represents the estate of a de ceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued. Almost in similar terms is the definition of legal representative under the Arbitration and Conciliation Act, 1996 i.e. under Section 2(1)(g). 12. As observed by this Court in Custodian of Branches of BANCO National Ultramarino v. Nalini Bai Naique [1989 Supp (2) SCC 275 the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is not confined to legal heirs only. Instead it stipulates that a person who may or may not be legal heir competent to inherit the property of the deceased can represent the estate of the deceased person. It includes heirs as well as persons who represent the estate even without title either as executors or administrators in possession of the estate of the deceased. All such persons would be covered by the expression "legal representative". As observed in Gujarat SRTC v. Ramanbhai Prabhatbhai (1987) 3 SCC 234 a legal representative is one who suffers on account of death of a person due to a motor vehicle accident and need not necessarily be a wife, husband, parent and child." In paragraph 15 of the said decision, while adverting to the provisions of Section 140 of the Act, the Court observed that even if there is no loss of dependency, the claimant, if he was a legal representative, will be entitled to compensation. In the concurring judgment of Justice S.H. Kapadia, as His Lordship then was, it is observed that there is distinction between "right to apply for compensation" and "entitlement to compensation". The compensation constitutes part of the estate of the deceased. As a result, the legal representative of the deceased would inherit the estate. In the concurring judgment of Justice S.H. Kapadia, as His Lordship then was, it is observed that there is distinction between "right to apply for compensation" and "entitlement to compensation". The compensation constitutes part of the estate of the deceased. As a result, the legal representative of the deceased would inherit the estate. Indeed, in that case, the Court was dealing with the case of a married daughter of the deceased and the efficacy of Section 140 of the Act. Nevertheless, the principle underlying the exposition in this decision would clearly come to the aid of the respondent Nos. 1 and 2 (claimants) even though they are major sons of the deceased and also earning. 15. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income between Rs. 1,00,000/- and Rs. 1,50,000/per annum. In that sense, they were largely dependant on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years." 16. It is quite apparent from bare reading of aforesaid judgment of Hon'ble Apex Court that legal representative of deceased can file application for compensation by virtue of Clause (c) of S. 161(1), which clearly provides that where death has resulted from accident, any of the legal representative of the deceased can file application for compensation on account of death arising out of accident under S. 166 of the Motor Vehicles Act. Most importantly in the judgment supra, it has been held that a married son who is also earning and fully dependent, would be covered by expression 'legal representative of the deceased'. Most importantly in the judgment supra, it has been held that a married son who is also earning and fully dependent, would be covered by expression 'legal representative of the deceased'. While interpreting/clarifying the earlier judgment of Hon'ble Apex Court in Manjuri Bera (supra), Hon'ble Apex Court in Birender Singh (supra), as referred to above, has held that the liability to pay compensation under the Act does not cease due to absence of dependency of the concerned legal representative. 17. Hon'ble Apex Court in Birender Singh (supra) has further held that even if there is no loss of dependency, but if the claimant is a legal representative, he would be entitled to compensation. Compensation constitutes part of estate of deceased as a consequent of which, the legal representative of deceased would inherit the estate. In para-15 of the aforesaid judgment, Hon'ble Apex Court has categorically ruled that it is settled by now that a legal representative of deceased has a right to apply for compensation and as such, even major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be bounden duty of the Tribunal to consider the application, irrespective of the fact, whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only. It is quite apparent from aforesaid judgment rendered by Hon'ble Apex Court that application for compensation filed by legal representative is to be considered by the Tribunal irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and it cannot limit the claim towards conventional heads only. 18. Evidence available on record though suggests that at the time of death of Karam Chand, claimant No. 1 was earning 10,000-15,000/- from his electrical shop but definitely, same cannot be said to be sufficient to rule out the dependency of the claimant upon the deceased and loss of estate caused to such claimant due to death of deceased. 19. If the income of the claimant No. 1 is considered to be Rs. 10,000-15,000-, yearly income of the deceased would come to Rs. 1,20,000-1,80,000/-, which, by no stretch of imagination can be considered to be sufficient to maintain the family of claimant No. 1, who at the time of accident was married and was residing with his family. 19. If the income of the claimant No. 1 is considered to be Rs. 10,000-15,000-, yearly income of the deceased would come to Rs. 1,20,000-1,80,000/-, which, by no stretch of imagination can be considered to be sufficient to maintain the family of claimant No. 1, who at the time of accident was married and was residing with his family. In that sense claimants can be said to be largely dependent upon income of their father, who met with an accident at the age of 59 years. 20. Though the record reveals that the respondents specifically pleaded before the tribunal below that their father was getting salary of 6700 Qatari Riyal, which at that time was equal to Rs. 1,25,000/-. To prove aforesaid fact, claimant placed on record salary slip, which though came to be exhibited as Ext. PN but since the same never came to be proved in accordance with law, learned Tribunal below taken the monthly income of the deceased to be Rs. 9,000/- per month. As per appellant, monthly income assessed by learned Tribunal below appears to be on higher side, however, this Court having taken note of the fact that the deceased was a skilled worker and prior to his death in the unfortunate accident, was rendering services as Rigging Supervisor in Trading and Services Ltd. Doha, Qatar, does not see any illegality in the income assessed by learned Tribunal below at Rs. 9,000/-. 21. Since in the case at hand, income of the deceased could not be established by the claimants, as such, learned Tribunal below has taken the same to Rs. 9,000/- per month on the basis of average emoluments of a daily wager in the State of Himachal Pradesh. This court finds no illegality or infirmity in the same as the same is in consonance with the various judgment of Hon'ble Apex Court on the subject. 22. Reliance is placed upon a judgment rendered by Hon'ble Apex Court in Govind Yadav vs. New India Assurance Company Limited, 2012 (1) ACJ 28, it has been held that: "17. A brief recapitulation of the facts shows that in the petition filed by him for award of compensation, the appellant had pleaded that at the time of accident he was working as Helper and was getting salary of Rs. 4,000/- per month. A brief recapitulation of the facts shows that in the petition filed by him for award of compensation, the appellant had pleaded that at the time of accident he was working as Helper and was getting salary of Rs. 4,000/- per month. The Tribunal discarded his claim on the premise that no evidence was produced by him to prove the factum of employment and payment of salary by the employer. The Tribunal then proceeded to determine the amount of compensation in lieu of loss of earning by assuming the appellant's income to be Rs. 15,000/- per annum. On his part, the learned Single Judge of the High Court assumed that while working as a Cleaner, the appellant may have been earning Rs. 2,000/- per month and accordingly assessed the compensation under the first head. Unfortunately, both the Tribunal and the High Court overlooked that at the relevant time minimum wages payable to a worker were Rs. 3,000/- per month. Therefore, in the absence of other cogent evidence, the Tribunal and the High Court should have determined the amount of compensation in lieu of loss of earning by taking the appellant's notional annual income as Rs. 36,000/- and the loss of earning on account of 70% permanent disability as Rs. 25,200/- per annum. The application of multiplier of 17 by the Tribunal, which was approved by the High Court will have to be treated as erroneous in view of the judgment in Sarla Verma v. Delhi Transport Corporation (2009) 6 SCC 121 . In para 42 of that judgment, the Court has indicated that if the age of the victim of an accident is 24 years, then the appropriate multiplier would be 18. By applying that multiplier, we hold that the compensation payable to the appellant in lieu of the loss of earning would be Rs. 4,53,600/-. 23. Reliance is also placed upon judgment rendered by this Court in Smt. Pappi Devi and others vs. Kali Ram and others, Latest HLJ 2008 (Himachal Pradesh) 1440, wherein it has been held as under: 2"6. It has come in the statement of claimant Smt. Kala Devi (PW-1) that the deceased, while working as a labourer and also selling milk was having an income of Rs. 4000/- per month. Importantly, there is no cross-examination on this point at all. It has come in the statement of claimant Smt. Kala Devi (PW-1) that the deceased, while working as a labourer and also selling milk was having an income of Rs. 4000/- per month. Importantly, there is no cross-examination on this point at all. But the fact of the matter is that no documentary evidence has been placed on record to prove the income. This is the only evidence with regard to income of the deceased on record. 7. It has come on record that the deceased was illiterate and working as a labourer. In my view, his income determined by the Tribunal i.e. Rs. 50/- per day, is on the lower side. Taking the deceased to be employed as a daily wager, the minimum wages paid by the government in the year 2001 to the labourers was more than Rs. 70/- per day. This is not disputed at the Bar. Therefore, the same can be made the basis for determining the income of the deceased. Thus, the monthly income of the deceased is determined as Rs. 70 x 30 = Rs. 2100/- and after deducing 1/3rd of the amount i.e. Rs. 700/-, for the purpose of dependency is determined as Rs. 1400/-." 24. Thus learned Tribunal below has rightly assessed the monthly income of the deceased on the basis of minimum wages applicable in the State on the date of death of deceased, and same is upheld. 25. As per appellant, learned Tribunal below erred while deducting 1/3rd towards personal expenses of deceased, especially when it stands proved that the wife of the deceased had already died, and son is doing electricity shop and was not dependent upon him, however, aforesaid submission/ground raised on behalf of appellant is not tenable in view of the fact that at the time of death of deceased, claimants Nos. 1 and 2 were dependent upon deceased being his legal representatives. Though the claimant No. 1 has admitted that he was earning 10,000-15,000/- per month but as has been observed herein above, said income is/was not sufficient for respondent No. 1 to maintain him as well as his family, and largely he was dependent upon earnings of the father. 1 and 2 were dependent upon deceased being his legal representatives. Though the claimant No. 1 has admitted that he was earning 10,000-15,000/- per month but as has been observed herein above, said income is/was not sufficient for respondent No. 1 to maintain him as well as his family, and largely he was dependent upon earnings of the father. Since at the time of death of deceased Karam Chand, both the claimants were dependent upon deceased, learned Tribunal below rightly proceeded to deduct 1/3rd of the income towards his personal expenses in terms of judgment rendered in Sarla Verma & Ors. v. Delhi Transport Corp. & Anr. (2009) 6 SCC 121 , while determining loss of dependency. 26. Though a ground has been raised by appellant Balwinder that the claimants failed to prove the accident, if any, with the vehicle of the appellant, but material available on record clearly reveals that FIR Ext. PW-5/A, which otherwise subsequently came to be proved in accordance with law was filed against the appellant Balwinder as well as respondent No. 5 Devinder Kumar on account of rash and negligent driving, Hon'ble Apex Court has held on Ravi vs. Badrinarayan and others, 2011 (4) SCC 693 that copy of FIR is a relevant document, while deciding negligence of a party in summary proceedings. There is ample material on record that the deceased Karam Chand died in the accident on account of rash and negligent driving of appellant and respondent No. 5. 27. Consequently in view of detailed discussion made herein above, there is no merit in the appeal filed by the Balwinder Singh. i.e. FAO No. 188 of 2019, which is accordingly dismissed. 28. By way of FAO (MVA) No. 494 of 2019, respondents Nos. 1 and 2 have approached this Court for enhancement of the award. Precisely the grounds raised for the enhancement of the compensation are as under: "1. Learned Tribunal below while assessing income of deceased has not taken into consideration salary certificate Ext. PN, as per which salary of deceased at 6700 Qtarai Riyal, which is equivalent to Rs. 1.25 Lakh in Indian rupees. 2. Learned Tribunal below assessed income of deceased at Rs. 9,000/- per month and after 1/3rd deduction assessed income to be Rs. 6000/- but since deceased was 59 years of age at the time of accident, as is evident from ext. 1.25 Lakh in Indian rupees. 2. Learned Tribunal below assessed income of deceased at Rs. 9,000/- per month and after 1/3rd deduction assessed income to be Rs. 6000/- but since deceased was 59 years of age at the time of accident, as is evident from ext. PQ, 10% addition was required to be given as per law laid down in Pranay Sethi case. 3. Learned Tribunal below erred while applying multiplier of 5' to assess loss of dependency taking age of deceased to be 65 years based on ext. PW-1/A whereas, respondent by way of placing on record copy of passport Ext. PQ proved that at the time of accident, deceased was 59 years of age as such multiplier of 9 ought to have been applied as per law laid down in Sarla Verma case." 29. No doubt, in the case at hand, respondents while placing on record salary slip Ext. PN, attempted to prove that at the time of death, deceased was in receipt 6700 Qatari Riyal, which was equal to Rs. 1.25 Lakh but Ext. PN, never came to be proved in accordance with law, as such there was no occasion for learned Tribunal below to consider the income of the deceased as 6700 Qatari Riyal or Rs. 1.25 Lakh. Had the aforesaid respondents proved the salary certificate Ext.PN by examining the person, who had either issued the same or any person from the company, wherein deceased was working prior to the accident, learned Tribunal below would have hypothetically considered the monthly income of the deceased as 6700 Riyal, hence, no interference, if any, is called for on this count in the impugned Award. 30. This court finds that in the case at hand, learned Tribunal below considered age of deceased to be 65 years on the basis of post mortem report, Ext. PW1/A, wherein, deceased has been shown to be of 65 years of age but careful perusal of Ext. PQ i.e. copy of post-mortem report, placed on record by respondents clearly reveals that date of birth of deceased was 15.6.1958, meaning that he was 59 years of age at the time of accident. It is not understood, that how learned Tribunal below, while determining age of deceased could place reliance upon report of post mortem, wherein age of deceased was shown as 65 years. It is not understood, that how learned Tribunal below, while determining age of deceased could place reliance upon report of post mortem, wherein age of deceased was shown as 65 years. There is every possibility that the date of birth was not correctly mentioned in the post-mortem report because same was not written on the basis of birth certificate of the deceased rather, same must have been written on the basis of unauthenticated information received by the police. Date of birth recorded in Ext. PQ i.e. passport, by no stretch of imagination can be said to be incorrect and as such learned Tribunal below ought to have taken age of deceased to be 59 years, while applying multiplier as well as considering case of the respondents for addition of 10% in light of judgment in Pranay Sethi (supra). 31. Since the age of the deceased was 59 years at the time of accident, as per Ext. PQ, passport, respondents are right in claiming that 10% addition was required to be made on account of loss of future prospective in light of Pranay Sethi (supra). 32. Similarly this court finds that since deceased was 59 years at the time of accident, multiplier of 9' ought to have been applied by learned Tribunal below in light of Sarla Verma (supra) and multiplier of 5' could not have been applied taking age of deceased to be 65 years. Since deceased was 59 years of age at the time of death, after deducting 1/3rd out of Rs. 9,000, 10% addition is required to be given and loss of dependency should have been taken to 6,600/- per month and multiplier of 9 ought to have been applied. Thus, the loss of dependency would be counted as follows: Income of deceased Rs.9000 Income after 1/3rd deduction Rs.6,000 Income after 10% addition Rs.6,600 Total loss of dependency 6600x12x9=7,12,800 33. However, learned counsel appearing for the appellant-Insurance Company, while referring to Pranay Sethi (supra) argued that the amount awarded under the heads of loss of love and affection is wrong. In Pranay Sethi (supra), Hon'ble Apex Court has held as under: "59. However, learned counsel appearing for the appellant-Insurance Company, while referring to Pranay Sethi (supra) argued that the amount awarded under the heads of loss of love and affection is wrong. In Pranay Sethi (supra), Hon'ble Apex Court has held as under: "59. In view of the aforesaid analysis, we proceed to record our conclusions:- (i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. (ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. (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. (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. (v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore. (vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment. (vii) The age of the deceased should be the basis for applying the multiplier. (vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment. (vii) The age of the deceased should be the basis for applying the multiplier. (viii) 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 aforesaid amounts should be enhanced at the rate of 10% in every three years." 34. Further, as per Pranay Sethi (supra), the claimants though are not entitled to any amount under the head of loss of love and affection, but are entitled to Rs. 15,000/- each under the heads of loss of estate and funeral expenses. 35. At this stage, Learned Counsel appearing for the claimants, while inviting attention to judgment rendered by Hon'ble Apex Court in Magma General Insurance Co. Ltd. v. Nanu Ram and Ors., Civil Appeal No. 9581 of 2018 decided on 18.9.2018, argued that claimants are also entitled to amounts on account of consortium, on account of untimely death of their father, due to which they have lost his guidance, love and affection etc., which as per aforesaid judgment ought to have been Rs. 40,000/- each. Hon'ble Apex Court in Magma General Insurance Co. Ltd. (supra) has held as under: "8.7 A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium. In legal parlance, "consortium" is a compendious term which encompasses 'spousal consortium', 'parental consortium', and 'filial consortium'. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse. Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of "company, society, co-operation, affection, and aid of the other in every conjugal relation." 4 Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training." Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and 3 Rajesh and Ors. vs. Rajbir Singh and Ors. (2013) 9 SCC 54 4 BLACK'S LAW DICTIONARY (5th ed. 1979) family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child. 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 5. However, there was no clarity with 5 Rajasthan High Court in Jagmala Ram @ Jagmal Singh & Ors. v. Sohi Ram & Ors. 2017 (4) RLW 3368 (Raj); Uttarakhand High Court in Smt. Rita Rana & Anr. v. Pradeep Kumar & 6 Ors. respect to the principles on which compensation could be awarded on loss of Filial Consortium. The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under 'Loss of Consortium' as laid down in Pranay Sethi (supra). In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs. 40,000 each for loss of Filial Consortium." 36. In view of above, this court also holds the claimants entitled to parental consortium at the rate of Rs. 40,000/- each. 37. In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs. 40,000 each for loss of Filial Consortium." 36. In view of above, this court also holds the claimants entitled to parental consortium at the rate of Rs. 40,000/- each. 37. At this stage, learned counsel for the appellant-Insurance Company argued that this Court has no power to award any extra amount/enhance the amounts already awarded by learned Tribunal below, since no cross-objections/appeal has been filed by the claimants. On the issue of power of an appellate court to make additional award, reference may be made to a judgment rendered by Hon'ble Apex Court in Ranjana Prakash and others vs. Divisional Manager and another (2011) 14 SCC 639 , whereby, it has been held that amount of compensation can be enhanced by an appellate court, while exercising powers under Order 41 Rule 33 CPC. It would be profitable to reproduce following para of the judgment herein:- "Order 41 Rule 33 CPC enables an appellate court to pass any order which ought to have been passed by the trial court and to make such further or other order as the case may require, even if the respondent had not filed any appeal or cross-objections. This power is entrusted to the appellate court to enable it to do complete justice between the parties. Order 41 Rule 33 CPC can be pressed into service to make the award more effective or maintain the award on other grounds or to make the other parties to litigation to share the benefits or the liability, but cannot be invoked to get a larger or higher relief. For example, where the claimants seek compensation against the owner and the insurer of the vehicle and the tribunal makes the award only against the owner, on an appeal by the owner challenging the quantum, the appellate court can make the insurer jointly and severally liable to pay the compensation, alongwith the owner, even though the claimants had not challenged the non-grant of relief against the insurer." 38. In view of the discussions made supra and the law laid down by Hon'ble Apex Court in the aforecited judgments, this Court deems it fit to modify the award passed by learned Tribunal below as under: Head Amount Loss of dependency 7,12,800 Loss of estate 15,000 Funeral charges 15,000 Parental consortium @ Rs. 40,00/- each 80,000 Total 8,22,000 39. This Court however does not see any reason to interfere with the rate of interest awarded on the amount of compensation, and as such, same is upheld. The apportionment shall remain, as ordered by learned Tribunal below. 40. Consequently, in view of detailed discussion made herein above and law laid down by the Hon'ble Apex Court, FAO No. 494 of 2019 is partly allowed and impugned award passed by learned Tribunal below is modified to aforesaid extent only. Both the appeals stand disposed of in the afore terms. Pending applications, if any, are also disposed of. Interim directions, if any, are vacated.