N.K. Mody, J.
1. Being aggrieved by the award dated 14.7.1997 passed by Second Motor Accidents Claims Tribunal, Gwalior in Claim Case No. 45 of 1993 whereby an award of Rs. 3,34,000 has been passed along with interest at the rate of 12 per cent per annum from the date of claim petition, the present appeal has been filed.
2. Short facts of the case are that in a motor accident which took place on 27.10.1993 between truck No. MKH 7740 and bus No. CIW 7226, deceased Rajeev Kumar Malhotra who was coming on a scooter bearing registration No. DDP 6449 sustained injuries and died on the spot. The claim petition was filed by the legal representatives who are respondent Nos. 1, 2 and 3. Claim petition was filed against driver and owner of truck No. MKH 7740 who are respondent No. 4 and appellant respectively. Respondent No. 5 is insurance company with whom the offending truck was insured. The claim petition was contested by appellant and respondent No. 5 on various grounds. Issues were framed and after recording of evidence learned Claims Tribunal held that the appellant and the respondent Nos. 4 and 5 are liable for payment of compensation of the award amount of Rs. 3,34,000.
3. Initially, the appeal was filed by the respondent No. 5 and appellant who are insurance company and owner of the offending truck. Later on with the permission of the court the insurance company was transposed as respondent No. 5. Claimant has also filed cross-objections wherein it is prayed that amount awarded is on lower side and same be enhanced. In the cross-objection further amount of Rs. 27,44,000 has peen prayed to be awarded.
4. A preliminary objection has been raised by Mrs. Meena Singhal, the learned Counsel for the respondent No. 1 that the appeal is not maintainable because the insurance company has been transposed as respondent and Awadhesh Kumar Dubey, appellant, being owner of the offending vehicle is not an aggrieved person as the awarded amount is paid by insurance company. For this purpose reliance is placed on a decision in the matter of Nahar Singh v. Manohar Kumar , wherein the High Court of Jammu and Kashmir has considered the words 'person aggrieved' who can file the appeal. The observation of the High Court is as under:
(5) A review of the judgments portray a hazy scenario with the courts taking divergent views while interpreting the expression. Nonetheless, some broad tests are deducible which can be summarised as under:
(a) A 'person aggrieved' when interpreted in the context of Motor Vehicles Act, means the person who has a genuine grievance and not a camouflaged or proxy one, against the award. He must feel aggrieved immediately and directly and not consequently or nominally.
(b) The award must prejudice his interest adversely and deprive him of something which he was otherwise entitled to get. Its effect on his right or interest must be substantial in contrast to being speculative or nominal.
(c) A mere finding that a person was negligent and responsible for accident is not enough. The award must make him liable to pay some part or the other of the compensation. He must suffer some material deprivation.
(6) Having crystallised the legal position, it becomes fairly easy to appreciate the nuance of the present controversy. Mr. T.R. Thakur, the learned Counsel for the respondents, has objected to the maintainability of this appeal on the ground that appellants are not the persons aggrieved. He submits that a joint appeal by them could lie if either of them was otherwise competent to maintain it. According to him, appellant No. 1 (owner) is not competent because he is not the person aggrieved as the award does not operate against him. Similarly, the appellant insurance company is incompetent as it challenges the award on grounds of defence not available to it under Section 96(2) of the Act.'
5. The learned Counsel submits that the amount awarded is on the lower side. The deceased was a Medical Representative and was earning Rs. 6,000 per month. It is submitted that the income of the deceased was assessed at Rs. 3,000 per month and dependency is assessed at Rs. 1,500 per month after applying multiplier of 18, the amount of compensation was calculated at Rs. 3,24,000. It is submitted that break-up of award amount is as under:
Loss of dependency Rs. 3,24,000Loss of expectation andconventional amount Rs. 10,000
Towards loss to estate, loss of love and affection, funeral expenses and the future prospects of the deceased have not been taken into consideration.
6. It is also submitted that the learned Tribunal has committed error in deducting 50 per cent of the income of deceased towards dependency. In this regard reliance is placed on a decision of this Court in the matter of Chandan Singh v. S.E.W. Construction Co. Ltd. , wherein in a case where deceased aged 27 years was M.B.A., Management Trainee and was getting stipend of Rs. 6,000 per month and his father, claimant who was employee and was receiving a handsome salary and was not at all dependent on the deceased, the dependency was calculated at the rate of 2/3rd of the income of the deceased. Further reliance was placed on the decision of Fakeerappa v. Karnataka Cement Pipe Factory : (2004)2SCC473 , wherein the deceased was aged 27 years and was earning Rs. 2,000 per month, the Apex Court restricted deduction towards personal expenses to one-third for determination of dependency. So far as love and affection and loss of company and funeral expenses are concerned, learned Counsel submits that the Division Bench of this Court in the case of Manful v. Mehmood I (2005) ACC 765, has awarded Rs. 40,000.
7. Mr. B.N. Malhotra, learned Counsel for appellant submits that the appeal is maintainable. For this purpose reliance is placed on a decision of the Apex Court in the matter of H.S. Ahammed Hussain v. Irfan Ahammed : [2002]SUPP1SCR78 , wherein the Hon'ble Apex Court, in this appeal filed by the insured and insurance company found that appeal filed by insurance company was not maintainable and the appeal filed by insured is maintainable. Learned Counsel for appellant further submits that insured is an aggrieved person as he is not entitled for no claim bonus because of the accident. So far as the amount of award is concerned it is submitted that multiplier of 18 has been wrongly applied by the Tribunal. The age of the father and mother of the deceased was 55 years and 52 years at the time of accident which has not been taken into consideration. It was submitted that looking to the age of the parents, multiplier of 11 ought to have been applied. It is submitted that amount awarded is on higher side which deserves to be reduced. Learned Counsel submits that interest has been awarded at the rate of 12 per cent per annum which is on the higher side.
8. It is submitted that in pursuance of the order passed by the Tribunal and also by this Court an amount of Rs. 2,01,250 has been deposited from time to time.
9. So far as the maintainability of the appeal is concerned, since, the appellant is owner of the offending vehicle the appeal was filed jointly with insurance company. In the similar circumstances in the case of H.S. Ahammed Hussain, : [2002]SUPP1SCR78 , the name of the insurance company was deleted and the appeal of the insured was allowed to proceed. Apart from this ultimately appellant may be affected by the award, as he is not entitled to no claim bonus, therefore, it cannot be said that the appeal filed by the owner is not maintainable. So far as the amount of award is concerned, it appears that the learned (sic Tribunal has adopted multiplier) taking into consideration the age of the deceased. Since, the deceased was unmarried, therefore, age of the parents ought to have been taken into consideration. So far as personal expenses is concerned, learned Tribunal has committed error in deducting one-half of the income in view of the law laid down by Division Bench of this Court as well as the Apex Court. So far as the income of the deceased is concerned, from a perusal of the document, Exh. P1, it is evident that salary of the deceased was Rs. 3,250 per month. Apart from this he was getting a daily allowance reimbursement. After taking into consideration this document, there was no justification in holding the income of the deceased at Rs. 3,000 per month. The income of the deceased ought to have been taken as Rs. 3,250 per month. The yearly income comes to Rs. 39,000 per annum. So far as application of multiplier is concerned, since the parents of the deceased were of the age of 55 and 52 years, therefore, age of the mother ought to have been taken into consideration and according to which multiplier of 11 as per Second Schedule to the Motor Vehicles Act ought to have been taken into consideration. The personal expenses ought to have been deducted at the rate of 1/3rd of the income of the deceased. Thus, the respondent No. 1 is entitled to Rs. 2,86,000 towards loss of dependency. Thus, the appellant is entitled to the following amount:
(1) Loss of dependency Rs. 2,86,000(2) Loss of love and affection andconsortium Rs. 15,000(3) Loss to estate Rs. 5,000(4) Funeral expenses Rs. 2,500______________Total Rs. 3,08,500______________
10. In view of this, the appeal stands allowed in part. The cross-objections stand dismissed. Respondent Nos. 1 and 3 are entitled for the amount of Rs. 3,08,500 (rupees three lakh eight thousand and five hundred) instead of Rs. 3,34,000 (rupees three lakh thirty-four thousand). No orders as to costs.