JUDGEMENT/ORDER : 1. The appeal bearing MA No. 58/2008 has been filed by the claimant against the award dated 29.12.2007 passed by the Motor Accidents Claims Tribunal, Ramban (hereinafter to be referred as the Tribunal) in file No. 38/Claims, titled, Mohd. Rafiq v. National Insurance Co. Ltd. & Ors. by virtue of which compensation of Rs. 4,95,071/- along with interest at the rate of 9% per annum from the date of filing of the claim petition has been awarded in favour of the appellant/claimant and prayer has been made for enhancement of the compensation. Simultaneously, appeal bearing MA No. 92/2008 has also been filed by the appellant- insurance company against the same award. 2. In MA No. 58/2008, the appellant has prayed for enhancement of the compensation on the ground that the appellant has been considered as non earning member and his annual income has been taken as Rs. 15,000/- per annum despite the fact that the appellant was working in Akshay Clinic and was getting Rs. 3,000/- as monthly salary. It is further submitted that the learned Tribunal has assessed the compensation as Rs. 72,000/- incurred by the appellant on the attendant despite the fact that the appellant has got 80% permanent disability because of spinal injury and has lost senses in the lower limbs and is not in a position to walk, urinate and attend the call of nature and as such, the appellant hired Shabir Ahmed as attendant on permanent basis to whom he is paying Rs. 1,500/- per month. It is further submitted that the learned Tribunal has granted Rs. 5,000/- as general damages on account of pain and suffering despite the fact the appellant has undergone a lot of pain and sufferings. It is further submitted that the learned Tribunal has bypassed the statement of Dr. Tahir Afzal, who stated that the injured was having sustained compression fracture of D12 and L1 vertebrae. The appellant injured was found with para plegia. It is further submitted that the learned Tribunal has not taken into account the age of the appellant/injured, the physical disability, the expenses incurred by the appellant on transportation and treatment etc. and bleak prospects of the marriage of the claimant. 3. The appellant injured was found with para plegia. It is further submitted that the learned Tribunal has not taken into account the age of the appellant/injured, the physical disability, the expenses incurred by the appellant on transportation and treatment etc. and bleak prospects of the marriage of the claimant. 3. In MA No. 92/2008, the appellant-insurance company has raised the contention that the claim petition by the claimant was filed only against the Insurance Company and in absence of legal representatives being arrayed as party, the Insurance company/appellant cannot be directed to pay compensation. It is further stated that the award is bad in law on the ground that the learned Tribunal failed to appreciate that at the time of accident the vehicle was overloaded. 4. Mr. C.S. Gupta, learned counsel for the appellant/insurance company has vehemently argued that the claim petition was not maintainable as the legal heirs were not arrayed as party respondents in the said petition. Mr. Gupta further argued that the appeal filed by the claimant has no merit as the learned Tribunal has rightly determined the compensation. 5. Per contra, Mr. Sheikh Altaf Hussain, learned counsel appearing for the claimant has vehemently argued that the plea with regard to the non arraying of the legal representatives of the claimant cannot be raised by the appellant/insurance company as it was well within the knowledge of the Insurance Company that the owner-cum-driver of the offending vehicle had died in the said accident and despite that no specific plea was taken in the response filed by the appellant-Insurance Company. He further argued that this defence is not available to the appellant/Insurance Company in view of sections 145 and 149 of the Motor Vehicle Act. He also submitted that in the said accident, number of other passengers had died and injured as well and once the Insurance Company satisfied the award in other claim petitions, the Insurance Company cannot wriggle out of its liability to compensate the appellant/claimant just on the ground that legal representatives of the deceased owner were not arrayed as respondents. He placed reliance upon the judgment of this court in case titled, National Insurance Company Limited v. Bashir Ahmed & Ors. where in the appeals filed by the insurance company in other claim petitions arising out of same accident were dismissed. 6. Heard and perused the record. 7. He placed reliance upon the judgment of this court in case titled, National Insurance Company Limited v. Bashir Ahmed & Ors. where in the appeals filed by the insurance company in other claim petitions arising out of same accident were dismissed. 6. Heard and perused the record. 7. The facts necessary for the disposal of the present appeals are that the appellant/claimant filed a claim petition on the ground that on 15.03.2004, a Minibus bearing registration No. JKU-1134 driven by one Balbir Singh S/o Amar Singh R/o Ukhral rashly and negligently with passengers on board met an accident at Batroo and rolled down in a gorge as a result of which number of passengers died and injuries were caused to others. The appellant, who was 20 years of age, was also passenger of the said vehicle and he suffered the permanent disability because of accident. The appellant/insurance company filed the response and on basis of the pleadings, following issues were framed: “1. Whether injured Mohd Rafiq was travelling by Matador No. JKU 1134 on 15.03.2004 at Ukhral Makarkote road and vehicle No. JKU-1134 met with an accident due to rash and negligence of the driver and petitioner sustained severe injuries on his body resulting into permanent disability which amounts to 80% (OPP) 2. Whether vehicle No. JKU-1134 was being plied against the terms and conditions of policy of insurance at the time of accident? (OPR) 3. Whether driver of offending vehicle was not holding valid driving licence at the time of accident? OPR 4. Whether the offending vehicle was being driven against the terms and conditions of RP, RC and fitness certificate and if so, what is its effect? (OPR.) 5. In case issue No. 1 is proved in affirmative what is the compensation the petitioner is entitled and from whom? (OPP) 8. The claimant besides examining himself, examined PW-Shabir Ahmed, Dr. Tahir Afzal and PW Gh. Mohd in support of his claim petition. Appellant-insurance company did not lead any evidence in support of its claim and after considering the evidence, the learned Tribunal has passed the impugned award. 9. (OPP) 8. The claimant besides examining himself, examined PW-Shabir Ahmed, Dr. Tahir Afzal and PW Gh. Mohd in support of his claim petition. Appellant-insurance company did not lead any evidence in support of its claim and after considering the evidence, the learned Tribunal has passed the impugned award. 9. The main ground urged by the Appellant-Insurance Company is that a claim petition was filed by the claimant against the Insurance Company only, without arraying the legal representatives of the deceased owner, as such, the Appellant-Insurance Company is not liable to pay the compensation to the claimant because insurer has no independent liability to pay compensation to the claimant. The liability of the insurer is only to indemnify the owner. From the perusal of the claim petition, it is evident that the claimant had specifically pleaded in his claim petition that the owner, who was driver of the offending vehicle also, died in the same accident, in which the claimant suffered injuries. The Appellant-Insurance Company in its objections before the Tribunal pleaded that the driver of the offending vehicle was not having a valid driving licence and that the offending vehicle was being plied in violation of terms and conditions of the policy of insurance. The appellant-insurance company had also pleaded that the appellant reserves the right to defend the present action for insured owner and driver and when the occasion arise and particularly, when they are proceeded ex parte, in that event, all defences as embodied under section 170 of the Motor Vehicle Act shall be resorted to by the Appellant-Insurance Company. More so, the appellant filed an application on 22.03.2006 before the Tribunal under section 170 of the Motor Vehicle Act for permitting the appellant to defend the actions on behalf of insured. The said application was allowed on the same date by the Tribunal. The application filed by the Appellant-Insurance Company demonstrates the callousness on its part, as the said application was moved on the premise that owner/driver has been set ex parte when it was specifically pleaded by the claimant that owner-cum-driver had died in the said accident. The tribunal too without taking in to consideration the specific stand of the claimant permitted the said application filed under section 170 of the Act. The tribunal too without taking in to consideration the specific stand of the claimant permitted the said application filed under section 170 of the Act. Besides this, during the pendency of the present appeal, the claimant had moved an application for arraying the legal representatives of owner- driver of the offending vehicle as party respondents in the appeal filed by the claimant for enhancement of compensation and this Court vide order dated 21.02.2012 has allowed the said application and legal representatives of the deceased owner-driver were arrayed as respondent Nos. 2 to 6. Since the legal representatives of the deceased owner-driver are parties before this Court so this Court does not find substance in the contention raised by the Insurance Company, as such, the same is rejected. Further the perusal of the record reveals that the present appeals were clubbed with other appeals, wherein the appellant-insurance company had challenged the awards passed in the other claim petitions arising out of same accident. All the appeals filed by the insurance company were dismissed vide judgment dated 29.11.2014 passed in connected appeals, the lead appeal being “National Insurance Co. Ltd. v. Bashir Ahmed & Ors.” bearing No. 88/2009. Thus, there is no merit in the appeal filed by the appellant-Insurance Company. 10. The perusal of the award would reveal that the Learned Tribunal has considered the sum of Rs. 15,000 per annum as notional income of the claimant whereas there is evidence on record that the claimant was earning Rs. 2,000/- to 3,000/- per month by doing a private job in a laboratory, namely, Akshay Clinic. The Tribunal did not consider the claimant as working in a private laboratory on the ground that he had not produced any certificate that could show him as a trained lab assistant and it can hardly be a ground for rejecting the contention of the claimant. The sum of Rs. 2,500/ per month can be considered as monthly earnings of the claimant. Further this court finds that the learned tribunal has very casually considered the statement of PW-Dr Tahir Afzal, Registrar Ortho Government Medical College Jammu, who had stated that the patient was operated outside by decompression and hartshill fixation. On examination, the patient was found with paraplegia and with permanent disability of 80%. Further this court finds that the learned tribunal has very casually considered the statement of PW-Dr Tahir Afzal, Registrar Ortho Government Medical College Jammu, who had stated that the patient was operated outside by decompression and hartshill fixation. On examination, the patient was found with paraplegia and with permanent disability of 80%. He stated that with paraplegia with compression fracture at D-12 L-1, there is complete loss of function of the lower limbs with the sensory and motor loss below this level with the involvement of bowel and bladder control and with this infirmity, disability is permanent in nature. He also stated that the claimant was unfit for manual and physical purpose and shall have to remain dependent on others throughout his life. From the nature of injuries suffered by the claimant it is evident that there is 100% functional disability and the claimant would remain dependent upon others for the rest of his life. In Master Ayush v. Branch Manager, Reliance General Insurance Co. Ltd.& Anr., 2022 SCC OnLine SC 375, while considering the issue of compensation for injuries suffered by the child of 5 years in vehicular accident, Hon'ble Apex Court has observed and held as under: “11. As per the medical certificate produced by the appellant, with Advanced Reciprocating Gait Orthosis (ARGO) with bilateral elbow crutches, the appellant can perform independent ambulation. Therefore, the condition of the appellant is not entirely comparable to Kajal who was confined to bed with mental age of 9 months' old child. The appellant herein is not able to move his both legs and had complete sensory loss in the legs, urinary incontinence and bowel constipation and bed sore. 12. The determination of damages in personal injury cases is not easy. The mental and physical loss cannot be computed in terms of money but there is no other way to compensate the victim except by payment of just compensation. Therefore, we find that in view of the physical condition, the appellant is entitled to one attendant for the rest of his life though he may be able to walk with the help of assistant device. The device also requires to be replaced every 5 years. Therefore, it is reasonable to award cost of 2 devices i.e., Rs. 10 lakhs. The appellant has not only lost his childhood but also adult life. The device also requires to be replaced every 5 years. Therefore, it is reasonable to award cost of 2 devices i.e., Rs. 10 lakhs. The appellant has not only lost his childhood but also adult life. Therefore, loss of marriage prospects would also be required to be awarded. The learned Tribunal has rejected the claim of taxi expenses for the reason that the taxi driver has not been produced. It is impossible to produce the numerous taxi drivers. Still further, the Tribunal should have realized the condition of the child who had complete sensory loss in the legs. Therefore, if the parents of the child have taken him in a taxi, probably that was the only option available to them. Accordingly, we award a sum of Rs. 2 lakhs as conveyance charges. 13. No compensation is warranted to be payable under the heading “food and nourishment or towards loss of childhood” as it stands subsumed in the compensation assessed under the other different heads. In view of the judgment in Kajal and other principles of determination of compensation, the amount payable would be as under: Head Amount A Loss of future earnings due to the Permanent Disability for life (3700 + 1480=5180) × 12 × 18 Rs. 11,18,880/- B Medical expenses Rs. 5,74,000/- C Future medical expenses i.e. towards purchase of 2 devices Rs. 10,00,000/- D Pain, suffering and Loss of amenities Rs. 10,00,000/- E Loss of Marriage prospects Rs. 3,00,000/- F One Attendant charges (3700 × 12 × 18)=7,99,200/- rounded off Rs. 8,00,000/- G Conveyance charges Rs. 2,00,000/- Total Rs. 49,92,880/- Rounded off Rs. 49,93,000/- 11. In the instant case, the learned tribunal has awarded Rs. 72,000/ only as attendant's expenses, whereas there is evidence on record that the appellant would remain dependent on others throughout his life. The claimant has led evidence that he has kept one attendant for Rs. 1,500 per month. More so, the sum of Rs. 5,000 awarded as general damages on account of pain and suffering is not sufficient in view of the injuries suffered by the claimant. As such taking into consideration the loss of future earnings, the claimant is found entitled to sum of Rs. 7,56,000/ (Rs. 42,000x18) considering as Rs. 30,000/ as annual income of the claimant and by enhancing it @ 40%. Further, the claimant is found entitled to sum of Rs. 324,000/(Rs. As such taking into consideration the loss of future earnings, the claimant is found entitled to sum of Rs. 7,56,000/ (Rs. 42,000x18) considering as Rs. 30,000/ as annual income of the claimant and by enhancing it @ 40%. Further, the claimant is found entitled to sum of Rs. 324,000/(Rs. 1,500 x 12 x 18) on account of attendant's expenses. The sum of Rs. 2,14,071/ awarded as medical expenses need no interference. From the record, it is evident that the petitioner has undergone treatment at Delhi as such the sum of Rs. 1 lakh is awarded as conveyance charges and further sum of rupees 2 lacs is awarded on account of loss of marriage prospects and sum of Rs. 4 lacs is awarded on account of pain, sufferings and loss of amenities. Thus, the claimant is entitled to sum of Rs. 20,00,000/- (rounded off) as compensation under the following heads: Head Amount A Loss of future earnings due to the Permanent Disability for life (2500 + 1000=3500) × 12 × 18 Rs. 7,56,000/- B Medical expenses Rs. 2,14,071/- C Pain, suffering and Loss of amenities Rs. 4,00,000/- D Loss of Marriage prospects Rs. 2,00,000/- E One Attendant charges (1500 × 12 × 18) Rs. 3,24,000/- F Conveyance charges Rs. 1,00,000/- Total Rs. 19,94,071/- Rounded off Rs. 20,00,000/- 12. The enhanced amount shall carry interest @ 6% per annum payable from the date of filing the claim petition and shall be paid by the Insurance Company within a period of 30 days from the date of this order. Award dated 29.12.2007 is modified accordingly. 13. Both the appeals are accordingly disposed of.