JUDGMENT : (Mauna M. Bhatt, J.) 1. These Cross Appeals under section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’ for short) are filed challenging the judgement and award dated 30.12.2011, passed by the Motor Accident Claims Tribunal, Kutch at Bhuj in MACP No.557 of 2004. First Appeal No. 1128 of 2012 is filed by the Insurance Company seeking reduction in the quantum of compensation awarded, whereas, First Appeal No. 1308 of 2012 is filed by the original claimants seeking enhancement of compensation. 2. As both these First Appeals are arising out of the judgment and award dated 30.12.2011, with the consent of the learned advocates for the respective parties, they are heard and decided together by this common judgment. 3. Short facts, arising from the record, are as under: 3.1. That on 20.08.2004, at around 6.00 p.m. in the evening, Chandrakant Premjibhai Katariya was going towards Patni Bazaar from his residence. At that time, one TVS Victor motor cycle No. GJ-12-AB-8148, came with full speed in rash and negligent manner from behind and dashed with Chandrakant Premjibhai Katariya. Due to the said accident, Chandrakant Premjibhai Katariya sustained severe injuries, was taken to Referral Hospital at Anjar and thereafter, was taken to Hospital at Rajkot, where during treatment, he died on 21.08.2004. 3.2. For the said accident, the legal heirs of the deceased -Chandrakant Premjibhai Katariya filed claim petition under Section 166 of the Act, seeking compensation of Rs.40,00,000/-. It was the case of the original claimants that the accident took placed on account of sole negligence of the driver of TVS Victor motor cycle No. GJ-12-AB- 8148. It was further case of the original claimants that the deceased was healthy and by doing service at Kandla Port Trust, he was earning Rs.14,000/- per month. 4. Upon filing of the claim petition, notices were issued by learned Tribunal and respondents appeared and filed their respective written statements. 5. That learned Tribunal, after hearing the parties and upon appreciation of evidence on record, decided the issues as under: [i] In relation to the negligence, learned Tribunal held that the driver of the TVS victor was sole negligent for occurrence of accident. The tribunal observed that the driver of TVS victor dashed with the deceased from behind while the deceased was walking on the road and there was no other vehicle, involved in the accident. The tribunal observed that the driver of TVS victor dashed with the deceased from behind while the deceased was walking on the road and there was no other vehicle, involved in the accident. [ii] In relation to compensation, learned Tribunal awarded total compensation of Rs.17,30,000/- under different heads as under: Dependency Loss Rs. 17,10,000/- Funeral Expenses Rs. 5,000/- Loss of Estate Rs. 15,000/- Total compensation Rs. 17,30,000/- 6. Being aggrieved by the quantum of the compensation awarded, the Insurance Company filed First Appeal No. 1128 of 2012. It is case of the insurance company in this appeal, that the deceased was also negligent to certain extent as he was walking on the road badly damaged due to earthquake, and he fell down because of uneven surface of the road. It was further case of the Insurance Company that learned Tribunal has erred in adding 50% towards future prospective income, instead of 30%. 7. As against that, aggrieved by the amount of compensation awarded, the original claimants filed First Appeal No. 1308 of 2012 seeking enhancement. It is case of the appellant- original claimants that the tribunal has erred in awarding lesser compensation under different heads. 8. Heard Mr. Maulik Shelat, learned advocate for the appellant- Insurance Company and Mr.Vishal Mehta, learned advocate for appellant – original claimants. The liability not being denied presence of other respondents is not necessary and dispensed with. Record and proceedings have been secured from the learned tribunal and placed for perusal. 9. Appearing for the appellant- Insurance Company, Mr. Maulik Shelat, learned advocate submitted that as per the record, the deceased was walking on a badly damaged road due to earthquake. The learned Tribunal ought to have considered the possibility of falling down because of the uneven surface of the road and sustained injuries, therefore, the deceased was also negligent for the accident in question. He further submitted that learned Tribunal is also in error in awarding total compensation of Rs.17,30,000/- by adding future rise of income to the extent of 50%. Admittedly, the deceased was 40 years and 7 months of age at the time of accident and in view of decision of Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others reported in (2017) 16 SCC 680 , he would be entitled to 30% rise towards future prospective income. Admittedly, the deceased was 40 years and 7 months of age at the time of accident and in view of decision of Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others reported in (2017) 16 SCC 680 , he would be entitled to 30% rise towards future prospective income. In relation to the grounds raised by the original claimants towards salary, gratuity, and provident fund (PF), available to the deceased at the time of retirement, Mr. Shelat, learned advocate for the Insurance Company, relied upon the decision of the Hon’ble Supreme Court in the case of Oriental Insurance Company Limited Vs. Jashuben and Other reported in (2008) 4 SCC 162 and submitted that the salary available to the deceased on the date of accident is relevant and not the future probable salary on the date of his retirement. In relation to the gratuity and PF available to the deceased at the time of retirement, he is relying upon decision of Hon’ble Supreme Court in case of Pranay Sethi and Others (supra),submitted to grant the same towards loss of estate. He, thus, submitted to allow his appeal. 10. On the other hand, Mr. Vishal Mehta, learned advocate for Mehul Suresh Shah learned advocate for the original claimants, submitted that the post-mortem report at Exh.33/5 refers that the deceased died on account of injuries sustained on head as well as on other parts of the body. He further submitted that in the affidavit of widow of the deceased at Exh. 34, she had stated that the deceased died as the TVS Victor dashed him from behind and as a result of which, he fell down and, therefore, learned Tribunal is correct in holding that the deceased died on account of sole negligence on the part of the driver of the TVS Victor. 10.1. In relation to the compensation, he submitted that learned Tribunal is in error in not considering that the deceased was working as Carpenter in Kandla Port Trust and was earning Rs.14,000/- per month. The pay slips on record, supports the income of the deceased. He further submitted that learned Tribunal is in error in not considering the salary, which the deceased would have earned at the time of retirement. The pay slips on record, supports the income of the deceased. He further submitted that learned Tribunal is in error in not considering the salary, which the deceased would have earned at the time of retirement. He further submitted that the provident funds and loss of gratuity is also required to be added while considering the income of the deceased, which learned Tribunal has erred. In support of his submissions, he relied upon the decision of the Hon’ble Supreme Court in the case of Oriental Insurance Company Limited Vs. Smitaben Jayendrabhai Patel reported in 2015 ACJ 2366 . In relation to other conventional heads he submitted that learned Tribunal is in error in not awarding appropriate compensation towards loss of consortium, loss of estate and funeral expenses. Relying upon the decisions of the Hon’ble Supreme Court in the cases of Magma General Insurance Co. Ltd. Vs. Nanu Ram Alias Chuhru Ram reported in 2018 (18) SCC 130 and National Insurance Company Limited vs. Pranay Sethi and Others reported in (2017) 16 SCC 680 , he submitted to enhance the compensation under conventional heads accordingly. 11. During hearing it was brought to the notice of this court by Mr. Vishal Mehta, learned advocate for the original claimants that, during pendency of the first appeal, one of the claimants-Diwaliben Chanrakant Kataria (mother of the deceased) had expired on 18.05.2021. A copy of death certificate of Diwaliben Chandrakant Kataria is produced and taken on record. 12. Having heard learned advocates for the respective parties and upon re-appreciation of the evidence on record, it is noticed that, the deceased died on account of accidental death on 20.08.2004. In the affidavit Sureshbhai Mavjibhai Sorathiya at Exh. 41/C, had stated that the deceased died as the TVS Victor dashed from behind, as a result of which, the deceased fell down and sustained severe injuries. In the said deposition, he had further stated that as he was knowing the deceased, he took him to Dr. Shyamsundar Hospital for primary treatment and thereafter,was taken to Referral Hospital, Anjar and from there, was taken to Leuva Patel’s Hospital at Bhuj. He had also stated in the said deposition that while taking the deceased from Leuva Patel’s Hospital at Bhuj to the Hospital at Rajkot for further treatment, he died on the way. Moreover, in the cross examination of widow of the deceased nothing contrary came on record. He had also stated in the said deposition that while taking the deceased from Leuva Patel’s Hospital at Bhuj to the Hospital at Rajkot for further treatment, he died on the way. Moreover, in the cross examination of widow of the deceased nothing contrary came on record. Considering the above evidences in our opinion, the deceased died due to accidental death though TVS Victor bike. As nothing contrary came on record, we are in agreement with the findings of learned Tribunal that the deceased died on account of sole negligence on the part of drive of TVS Victor. Thus, we do not find any error in findings of learned Tribunal on the issue of negligence. 13. In relation to the contention of salary, gratuity and provident fund, available to the deceased at the time of retirement, if he would have survived and retired, we are in agreement with the submissions made by learned advocate for the Insurance Company that salary available to the deceased on the date of accident is relevant and not on the salary on date of retirement. In the case of of Jashuben (supra), the Hon’ble Supreme Court in Para 13 and 28 has held as under: “13. It is not a case where, as on the date of death, the salary of the deceased was revised with retrospective effect from 1994. Salary would be revised or not was not known that part of time. Only because such salary was revised at a later point of time, the same by itself would not have been factor which could have been taken into consideration for determining the amount of compensation. The Tribunal, therefore, committed a serious illegality in taking into consideration the latter aspect. “28. We, therefore, are of the opinion that what would have been the income of the deceased on the date of retirement was not a relevant factor in the light of peculiar facts of this case and thus, the approach of the Tribunal and the High Court must be held to be incorrect. It is impermissible in law to take into consideration the effect of revision in scale of pay w.e.f.1.1.1997 or what would have been the scale of pay in 2002.” 14. It is impermissible in law to take into consideration the effect of revision in scale of pay w.e.f.1.1.1997 or what would have been the scale of pay in 2002.” 14. Further, in the decision in the case of Oriental Insurance Company v/s Smitaben J. Patel (supra), relied upon by the original claimants, for payment of gratuity and provident fund available to the deceased at the time of retirement, the court has considered the same for compensation towards loss of estate, which in this case would be awarded considering the decision of Hon’ble Supreme Court, in case of Pranay Sethi and Others (supra) accordingly. 15. Considering the decision of the Hon’ble Supreme Court in the case of Jashuben (supra), and Pranay Shetty (supra), we are in agreement with the submission made by the learned advocate for the insurance company that the salary available to the deceased at the time of accident is relevant and not prospective salary at the time of his retirement. The loss of gratuity and provident fund (PF), would be awarded towards loss of estate in consonance with the decision of Hon’ble Supreme Court in case of Pranay Shetty(Supra). Therefore, the submission of the original claimants that they are entitled for the loss of PF and gratuity as referred in the salary slip, in our opinion does not merit acceptance. 16. As per the record, the deceased was working as Carpenter in Kandla Port Trust in Harbor Division. The pay slip for August, 2004 at Exh. 38 shows that out of his gross pay of Rs.11334/-, Rs.334/- has been deducted towards the tax. Therefore, we deem it appropriate to assess the income of the deceased at Rs.11,000/- per month. Further, in view of the Hon’ble Supreme Court in case of National Insurance Company Limited vs. Pranay Sethi (Supra), as the deceased was aged 40 years and 7 months at the time of accident, the claimants would be entitled to 30% towards the future prospective income. As the deceased was survived by 4 dependents, ¼ amount is required to be deducted towards personal expenses and multiplier of 15 would be applicable. 17. Thus, the claimants would be entitled for dependency loss as under: “Rs.1,32,000/- per annum + Rs.39,600/- (30% prospective rise) = Rs.1,71,600/- per annum - Rs.42,900/- (¼ personal expenses) = Rs.1,28,700/- per annum x 15 multiplier (considering age at 40 years) = Rs.19,30,500/-”. 18. 17. Thus, the claimants would be entitled for dependency loss as under: “Rs.1,32,000/- per annum + Rs.39,600/- (30% prospective rise) = Rs.1,71,600/- per annum - Rs.42,900/- (¼ personal expenses) = Rs.1,28,700/- per annum x 15 multiplier (considering age at 40 years) = Rs.19,30,500/-”. 18. In respect of the appeal filed by the original claimants, we are in agreement with the submissions advanced by learned advocate Mr. Mehta that since the deceased was survived by three dependents (4th claimant namely Diwaliben Chanrakant Kataria-mother of the deceased expired on 18.05.2021), applying the ratio of Satinder Kaur (supra), the original claimants would be entitled for consortium of Rs.40,000/- for each dependent. 19. Further, in view of the decision of the Hon’ble Supreme Court in case of Sarla Verma and others Vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 1211 and National Insurance Company Limited vs. Pranay Sethi (Supra), the claimants would be entitled for Rs.15,000/- each towards loss of estate and Rs.15,000/- each for funeral expenses. 20. The original claimants thus would be entitled to the total compensation as under: Loss of dependency Rs.19,30,500/- Loss of Consortium Rs. 1,20,000/- Loss of Estate Rs. 15,000/- Funeral Expenses Rs. 15,000/- Total compensation Rs.20,80,500/- 21. In view of the above, following order is passed:- (1) Both the appeals are partly allowed to the aforesaid extent. (2) First Appeal filed by the appellant – insurance company is partly allowed to the extent that learned Tribunal is in error in holding 50% rise towards the future prospective income. First appeal filed by the original claimants is allowed to the extent to award additional amount of Loss of Dependancy and compensation towards other conventional heads as stated here in above. (3) Thus, the claimants would be entitled to total compensation of Rs.20,80,500/-. As the Tribunal has awarded an amount of Rs. 17,30,000/-, the Insurance Company shall deposit the balance additional amount of Rs.3,50,500/- with 6% interest and proportionate costs with the Tribunal within a period of 8 weeks from the receipt of the order. The impugned judgment and award passed by the Tribunal is modified to the aforesaid extent. However, there shall be no order as to costs. (4) It is needless to say that the original claimants are entitled for amount and the same shall be disbursed to the original claimants through RTGS. The impugned judgment and award passed by the Tribunal is modified to the aforesaid extent. However, there shall be no order as to costs. (4) It is needless to say that the original claimants are entitled for amount and the same shall be disbursed to the original claimants through RTGS. (5) Registry is directed to send back the Record and Proceedings of the case to the concerned Tribunal forthwith.