JUDGMENT : B.V.L.N. CHAKRAVARTHI, J. 1. Challenging the order dated 23.11.2010 passed in M.V.O.P.No. 73/2010 on the file of the Motor Accidents Claims Tribunal-II Addl.District Judge, Madanapalle, the claimants filed the appeal. 2. The appellants/claimants filed claim petition before the learned Tribunal U/s.140 and 166 of Motor Vehicles Act, 1988 claiming compensation of Rs.4,00,000/- for the death of Manda Yerraiah, alleging that on 15.08.2008 the deceased Manda Yerraiah and Manda Sumithra and others were travelling in auto bearing No. AP03X 3335 from Sodam towards Somala, the driver of said auto drove it in a rash and negligent manner and he lost control over the auto and due to which, the auto turned turtle and the inmates of auto fell down and sustained injuries. It is further contended that due to the accident, the deceased sustained severe injuries and died. The age of the deceased was 42 years at the time of accident. He was working as security guard in J.S.Towers, Venkatapuram Alval, Hyderabad and used to earn Rs.5,000/- per month and managing his family and the petitioners are dependants on the income of deceased. The 1st respondent was owner of crime auto and the 2nd respondent is insurer of the said vehicle. 3. Before the learned Tribunal, the 2nd respondent/Insurance Company filed written statement, while traversing the material averments with regard to manner of accident, rash and negligence on the part of the driver of the crime vehicle, nature of injuries, age and avocation of the deceased, liability to pay compensation, and contended that there was no rashness or negligence on the part of driver of auto No. AP 03X 3335. The driver of auto was holding driving licence to drive auto rickshaw non-transport only and the vehicle involved in the accident is a goods carrying commercial vehicle and driver should possess a transport endorsement in his licence, hence, the 1st respondent violated the terms and conditions of the insurance policy and therefore, he is not liable to pay compensation. It is further contended that the auto No. AP 03X 3335 was registered under commercial vehicle goods carrying and its seating capacity is only one i.e., driver, but at the time of accident, it is found that the crime auto carrying 14 persons which is against the rules under M.V.Act. It is further contended that the auto No. AP 03X 3335 was registered under commercial vehicle goods carrying and its seating capacity is only one i.e., driver, but at the time of accident, it is found that the crime auto carrying 14 persons which is against the rules under M.V.Act. The 1st respondent did not pay premium to cover the risk of the passengers and hence, insurer is not liable to pay any compensation to the petitioners. The claim of the petitioners is highly excessive, exorbitant and without proportion to the loss sustained. 4. The 1st respondent, who is owner of the crime vehicle remained exparte. 5. On the strength of the pleadings of both parties, the Tribunal framed the following issues: 1. Whether the accident occurred due to rash and negligent driving of three wheeler auto bearing No. AP 03X 3335 involved resulting in the death of deceased by name Manda Yerraiah? 2. Whether the petitioners are entitled for compensation? If so, by whom and to what amount? 3. To what relief? 6. To substantiate their claim, the claimants examined P.W-1 and got marked Exs.A-1 to A-5. The 2nd respondent/Insurance Company examined R.W-1 and got marked Ex.B-1. 7. The learned Tribunal, taking into consideration the evidence of P.W-1, coupled with Exs.A-1 to A-5, held on issue No. 1 that the accident took place due to rash and negligent driving of driver of auto bearing No. AP-03X-3335, and further held on issue No. 2 that claimants are entitled for compensation and awarded total compensation of Rs.3,43,000/- with interest @ 9% p.a. from the date of petition, till the date of deposit with proportionate costs against the 1st respondent, by dismissing the claim against the 2nd respondent/Insurance Company. 8. The details of the compensation amount awarded by the learned Tribunal under various heads discussed above are as under: S. No. Description of the head Amount awarded 1 Monthly income of deceased fixed by the learned Tribunal Rs. 3,000-00 2 1/3 of income deducted as personal expenses of deceased Rs. 3,000 - 1,000 = Rs. 2,000/- 3 Annual income of deceased Rs. 2,000 x 12 = Rs. 24,000/- 4 Loss of dependency after multiplier 14 is applied Rs. 3,36,000-00 5 Loss of consortium Rs. 5,000-00 6 Funeral expenses Rs. 2,000-00 TOTAL Rs. 3,43,000-00 9. 3,000-00 2 1/3 of income deducted as personal expenses of deceased Rs. 3,000 - 1,000 = Rs. 2,000/- 3 Annual income of deceased Rs. 2,000 x 12 = Rs. 24,000/- 4 Loss of dependency after multiplier 14 is applied Rs. 3,36,000-00 5 Loss of consortium Rs. 5,000-00 6 Funeral expenses Rs. 2,000-00 TOTAL Rs. 3,43,000-00 9. The contention of the appellants/claimants is that the learned Tribunal erred in exonerating the Insurance Company from indemnifying the 1st respondent owner/insured of the offending vehicle on the ground that the vehicle involved in the accident is goods carriage; and seating capacity is only one and no premium was paid by the 1st respondent to cover the risk of passengers travelling in the auto; instead of applying the principle of pay and recovery as laid down by the Hon’ble Apex Court in the case of National Insurance Company Limited vs. Swaran Singh and Others, (2004) 3 SCC 297 . The learned counsel for the appellants/claimants would further submit that the Hon’ble Apex Court in the case of Shivaraj vs. Rajendran, AIR 2018 SC 4252 in similar circumstances held that High Court ought to have applied the principle of pay and recovery; and in the said circumstances pay and recovery principle may be applied to the case on hand also. The learned counsel for the appellants/claimants would further submit that the learned Tribunal failed to award just compensation by not considering to award future prospects as well as the amounts laid down by the Hon’ble Apex Court in Praney Sethi’s case under conventional heads; and the claimants No. 3 and 4 were minor children of the deceased are also entitled to parental consortium as per the principles laid down by the Hon’ble Apex Court in the case of Magma General Insurance Company Limited vs. Nanu Ram @ Chuhru Ram and Others. The learned counsel for the appellants/claimants would further submit that the respondents never pleaded that the 2nd claimant is not a dependant on the deceased, though he is a major son of the deceased; and without any contention raised by the respondents, the learned Tribunal erroneously excluded the 2nd claimant from the list of dependants and did not award any compensation to him. The learned counsel for the appellants/claimants would further submit that the learned Tribunal awarded interest only @ 6% p.a. though at the relevant point in time i.e., in the year 2010 the rate of interest and even as per the guidelines issued by the Reserve Bank of India was at 7.5% p.a. and in support of his arguments, he relied upon the decision in the case of National Insurance Company Limited vs. Mannat Johal. 10. None appeared for the 1st respondent/owner or the 2nd respondent/Insurance Company before this Court, and in those circumstances, this Court is constrained to pronounce the judgment, after hearing the learned counsel for the appellants/claimants. Record would disclose that the 1st respondent i.e., owner of the crime vehicle remained exparte before the learned Tribunal also. 11. The contention of the 2nd respondent/Insurance Company before the learned Tribunal is that the crime vehicle involved in the accident was a goods vehicle; and no premium was paid for the passengers travelling in the said vehicle; and the deceased was travelling in the said vehicle as a gratuitous passenger; and therefore, the Insurance Company is not liable to indemnify the 1st respondent. 12. In the light of above rival contentions, the points that would arise for consideration in this appeal are as under: 1. Whether the order and decree passed by the learned Tribunal warrants interference of this Court? 2. To what relief? 13. POINT No. 1: The case of the claimants is that on 15.08.2008 while the deceased Manda Yerraiah and his wife Manda Sumithra were travelling in auto bearing No. AP 03X 3335 from Sodam towards Somala, driver of the auto, drove it in a rash and negligent manner and as a result the auto turned turtle and the inmates of the auto fell down and sustained injuries and the deceased, who is husband of the 1st claimant and father of claimants No. 2 to 4 also sustained injuries and later succumbed to injuries, and that the deceased was working as Security Guard and earning Rs.5,000/- per month and the claimants are dependants; and therefore, they filed the claim petition against the owner of the vehicle/insured and the 2nd respondent/insurer of the crime vehicle for a sum of Rs.4,00,000/- towards compensation U/s.166 of Motor Vehicles Act in M.V.O.P.73/2010. 14. 14. As already stated above, the 1st respondent/owner did not contest the case of the claimants before the learned Tribunal. The 2nd respondent/Insurance Company contended that the crime vehicle was registered as goods carriage and accordingly, it was insured with the 2nd respondent; and no additional premium was paid for the passengers carrying in the said vehicle; and in fact, it cannot carry any passengers; and therefore, the 2nd respondent is not liable to indemnify the insured i.e., 1st respondent. 15. The learned Tribunal, on issue No. 1 i.e., regarding rash and negligence driving of the driver of the crime vehicle, basing on the evidence placed before it, opined that accident was occurred due to rash and negligent driving of the auto driver i.e., crime vehicle. The respondents i.e., owner of the vehicle or the Insurance Company did not challenge the said finding of the learned Tribunal. 16. The learned Tribunal considered the contention of the 2nd respondent/Insurance Company regarding its liability to indemnify the insured on the ground that the crime vehicle i.e., auto involved in the accident is a goods carriage and it cannot carry passengers as per the rules under Motor Vehicles Act; and further, the 1st respondent/insured did not pay any premium to cover the risk of the passengers travelling in the auto; and therefore, held that no liability can be fastened against the 2nd respondent/Insurance Company and granted compensation against the 1st respondent only. 17. The evidence placed before the learned Tribunal would disclose that the crime vehicle i.e., auto is a goods carriage commercial vehicle and as per Ex.B-1 copy of insurance policy, seating capacity of the vehicle was only one and no premium was paid by the 1st respondent/insured to cover the risk of passengers travelling in the auto. Therefore, in the said circumstances, the finding of the learned Tribunal that the 2nd respondent/Insurance Company is not liable to indemnify the insured is correct. Hon’ble Apex Court in the case of Shivaraj vs. Rajendran (supra) held in Para 10 as under: “At the same time, however, in the facts of the present case the High Court ought to have directed the Insurance Company to pay the compensation amount to the claimant (appellant) with liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this Court in National Insurance Co. Ltd. vs. Swaran Singh and Others, Mangla Ram vs. Oriental Insurance Co. Limited, Rani and Others vs. National Insurance Co. Ltd. and Others and including Manuara Khatun and Others Vs. Rajesh Kumar Singh And Others. In other words, the High Court should have partly allowed the appeal preferred by the respondent No. 2. The appellant may, therefore, succeed in getting relief of direction to respondent No. 2 Insurance Company to pay the compensation amount to the appellant with liberty to recover the same from the tractor owner (respondent No. 1).” 18. In view of the said observation of the Hon’ble Apex Court, this Court is of the considered opinion that in this case also pay and recovery principle be applied, directing the 2nd respondent to pay the compensation first and recover the same later from the 1st respondent by filing necessary application in the very same proceedings. 19. When coming to the compensation, the learned Tribunal fixed the monthly income of the deceased notionally at Rs.3,000/- per month as no evidence was placed by the claimant that he was working as Security Guard and earning Rs.5,000/- per month. In that view of the matter, this Court is of the considered opinion that there are grounds to interfere with the finding of the learned Tribunal on that aspect. 20. The leaned Tribunal deducted personal expenses considering the number of dependants is three only, instead of four on the ground that the 2nd claimant became major and accordingly, deducted 1/3 of the income towards personal expenses. Admittedly, the claim of the 2nd claimant was not disputed either by the owner or the Insurance Company on the ground that he was not dependant on the deceased income on the date of accident, because, he was a major and he was having separate source of income. The learned Tribunal erred on this aspect and came to a wrong opinion that he is a major son, and therefore, he is not entitled to claim compensation. Admittedly, there is no evidence to say that he was having independent and separate income on the date of accident, and that he was not a dependent on the deceased. Therefore, this Court is of the considered opinion that the number of dependants be considered as four on the date of accident. Admittedly, there is no evidence to say that he was having independent and separate income on the date of accident, and that he was not a dependent on the deceased. Therefore, this Court is of the considered opinion that the number of dependants be considered as four on the date of accident. Hence, by applying principles laid down by the Hon’ble Apex Court in the case of Sarla Verma’s case, ¼ of the income of deceased only be deducted towards personal expenses of the deceased. 21. The learned Tribunal fixed the income of deceased notionally at Rs.3,000/- per month. There are four dependents in this case. Therefore, ¼ of the income of deceased should be deducted towards his personal expenses. Thus, the monthly income of deceased will be Rs.3,000 – 750 = Rs.2,250/-, and the annual income of the deceased will be Rs.2,250 x 12 = Rs.27,000/-. 22. The age of deceased was fixed by the learned Tribunal, as 45 years. As per the judgment of the Hon’ble Apex Court in the case of Sarla Verma and Another vs. Delhi Road Transport Corporation and Others, 2009 ACJ 1298 the multiplier applicable to arrive loss of dependency for the age group of ‘41 to 45 years’ is ‘14’. Thus, the loss of dependency will be Rs.27,000 x 14 = Rs.3,78,000/-, but not Rs.3,36,000/- as awarded by the learned Tribunal. 23. In view of the judgment of the Hon’ble Apex Court in the case of National Insurance Company Limited vs. Pranay Sethi and Others, (2017) 16 SCC 680 the claimants are entitled for Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses, total comes to Rs.30,000/-. The learned Tribunal awarded Rs.2,000/- only towards funeral expenses, and not awarded any amount towards loss of estate. 24. In view of the judgment of the Hon’ble Apex Court in the case of Magma General Insurance Company Limited vs. Nanu Ram @ Chuhru Ram and Others, 2018 ACJ 2782 the 1st claimant being wife of deceased is entitled for Rs.40,000/- towards loss of spousal consortium, claimants No. 3 and 4 being the minor children of deceased are entitled for Rs.40,000/- each towards loss of parental consortium, and thus, the claimants 1, 3 and 4 are entitled to Rs.1,20,000/- under loss of consortium. 25. Therefore, the appellants/claimants are entitled for a total compensation of Rs.3,78,000 + 30,000 + 1,20,000 = Rs.5,28,000/-towards just compensation. 25. Therefore, the appellants/claimants are entitled for a total compensation of Rs.3,78,000 + 30,000 + 1,20,000 = Rs.5,28,000/-towards just compensation. The learned Tribunal awarded Rs.3,43,000/- towards compensation. Therefore, the contention of the appellants/claimants that the learned Tribunal failed to award just compensation to the claimants is having a tenable force. In that view of the matter, the finding of the learned Tribunal warrants interference of this Court. 26. When coming to the rate of interest, the learned Tribunal awarded interest at 6% p.a. only. Considering the fact that the accident was occurred in the year 2010 and in view of the Hon’ble Apex Court judgment in the case of National Insurance Company Limited vs. Mannat Johal, 2019 ACJ 1849 (SC) this Court is of the considered opinion that reasonable interest to be awarded in this case U/s.171 of M.V.Act 1988, can be fixed at 7.5% per annum from the date of petition, till the date of deposit. 27. The Hon’ble Apex Court in the case of Mona Baghel and Others vs. Sajjan Singh Yadaav and Others, 2022 Live Law (SC) 734 held that in the matter of compensation, the amount actually due and payable is to be awarded despite the claimant having sought for a lesser amount and the claim petition being valued at a lesser value. The law is well settled that in the matter of compensation, the amount actually due and payable is to be awarded despite the claimant having sought for a lesser amount and the claim petition being valued at a lesser value. Therefore, though the claimant sought for a lesser amount, and the claim petition being valued at lesser value for Rs.4,00,000/-, the amount actually due and payable to be awarded is Rs.5,28,000/-. In that view of the matter, the award passed by the learned Tribunal is liable to be set aside. 28. In view of the above judgment of the Hon’ble Apex Court case, the Court shall award just compensation, even if it exceeds the amount claimed by the claimants, subject to payment of court fee. In that view of the matter, this Court is of the considered opinion that the appellants are entitled to Rs.5,28,000/- towards just compensation. 29. Considering the facts and circumstances of the case, the appeal be allowed by setting aside the order and decree passed by the learned Tribunal. Accordingly, the point is answered. 30. In that view of the matter, this Court is of the considered opinion that the appellants are entitled to Rs.5,28,000/- towards just compensation. 29. Considering the facts and circumstances of the case, the appeal be allowed by setting aside the order and decree passed by the learned Tribunal. Accordingly, the point is answered. 30. POINT No. 2: To what relief? In the light of finding on point No. 1, the appeal is liable to be allowed by setting aside the order and decree dated 23.11.2011 passed in M.V.O.P.No. 73/2010 on the file of Motor Accidents Claims Tribunal-cum-II Addl. District Judge, Madanapalle. 31. In the result, the appeal is allowed, by setting aside the order and decree dated 23.11.2011 passed in M.V.O.P.No. 73/2010 on the file of Motor Accidents Claims Tribunal-cum-II Addl. District Judge, Madanapalle, by holding that the claimants are entitled to a total compensation of Rs.5,28,000/- (Rupees Five Lakhs and Twenty Eight Thousand only) with interest @ 7.5% p.a. from the date of petition, till the date of deposit, instead of Rs.3,43,000/- as awarded by the learned Tribunal, against the 1st respondent. There shall be no order as to costs. 32. The 2nd respondent/Insurance Company shall first pay the compensation amount of Rs.5,28,000/- (Rupees Five Lakhs and Twenty Eight Thousand only), along with accrued interest thereon, within eight (08) weeks from the date of judgment, and can recover the same later from the 1st respondent by filing necessary application in the very same proceedings. 33. On such deposit, the 1st Appellant/1st claimant being the wife of deceased is entitled to an amount of Rs.2,28,000/- (Rupees Two Lakhs and Twenty Eight Thousand only) and she is permitted to withdraw the said amount along with accrued interest thereon. 34. The Appellants No. 2 to 4 being the children of the deceased are entitled to an amount of Rs.1,00,000/- (Rupees One Lakh only) each, and they are permitted to withdraw the said amount along with accrued interest thereon. 35. The appellants/claimants are directed to pay the required court fee before the Tribunal, as per Rule 475(2) of A.P.M.V.Rules 1989, within one month from the date of receipt of certified copy of judgment. 36. As a sequel, miscellaneous applications pending, if any, shall stand closed.