IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. J U D G M E N T S.B.Civil Misc. Appeal No.251/2000. Sayri Devi & Others. Versus. Vishnu Travel & Another. S.B. Civil Misc. Appeal under Section 173 of the M.A.C.T. Act, against the award dated 23.10.99 passed by the Judge, M.A.C.T Jaipur City, Jaipur in Claim No.1089/98 (Sayri Devi & others Vs. Shri Vishnu Travels & Another)by which the Tribunal has awarded of Rs.3,32,000/-. Date of Judgment ::: 20th March,2009. HON'BLE MR.JUSTICE K.S.CHAUDHARI. Mr.Indzar Ali Advocate on behalf of Mr.Mahender Goyal for the appellant. Mr.S.C.Purohit for the respondent No.2. By the Court : This appeal has been filed by the appellants against the award dated 23.10.1999 ..2.. passed by Judge, MACT, Jaipur City, Jaipur in Claim No.1089/98 (Sayri Devi &Others Vs. Vishnu Travels & Another) by which the tribunal awarded claim of Rs.3,32,000/-. Brief facts of the case are that on 21.11.1998 at 11.P.M, the deceased Papu @ Omprakash husband of appellant No.1 and father of appellant No.2 & 3 left factory for home. When deceased reached near Ankur Cinema, Mini Bus No.RJ-14-P5970 which was driven by driver rashly and negligently hit and caused his death. Respondent No.1 is the owner of Mini Bus and respondent No.2 is the insurer of Bus. Hence, appellants claimed compensation. Respondent No.1 did not appear and respondent No.2 filed reply and raised many objections and prayed for dismissal of claim petition. After recording evidence, learned Tribunal awarded Rs.3,32,000/- against which, this appeal has been filed. ..3.. Heard learned counsel for the appellants and learned counsel for the respondent No.2 and also perused the record. Learned counsel for the appellants submitted that appellants proved income of the deceased to the tune of Rs.4000/- per month even then learned Tribunal has committed error in assessing the income of the deceased as Rs.2,500/- per month. It was further submitted that looking to the age of deceased, multiplier of 18 should have been applied instead of multiplier of 15, hence, appeal may be accepted and awarded compensation may be enhanced. On the other hand, learned counsel for the respondent submitted that as the driver was not made party in the claim petition, appeal is liable to be dismissed and further submitted that the awarded compensation is not on the lower side, hence, appeal may be dismissed. ..4.. Learned counsel for the respondent submitted that without impleading driver as party in the claim petition, claim was liable to be dismissed. He has placed reliance on 2008(2) TAC789 (SC), Machindranath Kermath Kasar vs. D.S.Myloarappa and Others. In this case Hon'ble Apex Court observed that driver may not, however, be a necessary party in the sense that in his absence, the entire proceeding shall not be vitiated as the owner of the vehicle was a party in his capacity as a joint feaser. Apex Court has nowhere held that driver was a necessary party, and in the absence of driver claim petition cannot proceed. No such objection has been raised by respondent in his reply before the tribunal. Respondent has not filed appeal. In such circumstances, even in the absence of driver ..5.. as party in the claim petition, claim petition as well as the appeal is maintainable. In the postmortem report Ex.3 age of deceased Papu has been shown 30 years, appellants have shown the age of deceased to be 28 years in their claim petition. In such circumstances, it can be presumed that at the time of death Papu @ Omprakash was about 30 years old. Learned counsel for the appellants submitted that appellants have proved income of deceased to the tune of Rs.4000/- per month whereas tribunal has assessed Rs.2500/- per month income of the deceased. Learned tribunal has rightly assessed income of the deceased because in the claim petition appellants have shown Rs.3500/- per month as ..6.. income of the deceased whereas A.W.1 Smt.Sayri Devi has stated that deceased was getting salary Rs.4000/- per month and Rs.20/- per day extra for other expenses. A.W.3 Ramesh Kumar has stated that he is owner of the work shop namely 'Ramesh Motor Repairing Workshop' and this establishment is also known by 'Jhala Engineering Works' and deceased was employee in his establishment and was getting Rs.4000/- per month as salary. He further stated that deceased was working since last 7 to 8 years. He has also proved salary certificate Ex.12. This certificate has been issued by establishment 'Ramesh Motor Repairing Workshop', whereas as per claim petition deceased was working in Jhala Engineering Works. Merely on the basis statement of A.W.3 Ramesh Kumar it cannot be presumed that both establishments are one and the same. Had ..7.. deceased being getting Rs.4000/- per month as salary from Ramesh Motor Repairing Workshop Rs.3500/- per month salary from Jhala Engineering Company would not have been shown in claim petition. Thus, it becomes clear that only to get enhanced compensation, higher income from different employer has been shown in the statement which cannot be believed. Looking to the age and work of deceased, learned Tribunal has not committed error in assessing Rs.2500/- per month income of the deceased. As per Second Schedule of Motor Vehicles Act, multiplier of 18 should have been applied, wheres the Tribunal has applied multiplier of 15. Apex Court has held in Supe De & Others Vs. National Insurance Co.Ltd & Another reported in 2002 (3) T.A.C.378 that where no reason has been given by Tribunal ..8.. for fixing lower multiplier, appropriate multiplier provided in the Second Schedule should be adopted as a guideline and the Apex Court in the aforesaid case (Supra) applied multiplier of 17 instead of 16 at the age of 32 years. In such circumstances, in the case in hand the age of deceased Papu was 30 years hence multiplier of 18 should have been applied instead of 15. As per the schedule amount of compensation is to be reduced by 1/3 in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. In such circumstances, dependency of appellants can be assessed to be Rs.20,000/- per annum. If multiplier of 18 is applied total amount of dependency comes to Rs.20,000 x 18 = 3,60,000/-. The Tribunal has awarded ..9.. Rs.32,000/- on account of consortium, love and affection and funeral expenses whereas as per schedule only Rs.9,500/- could have been awarded as loss of consortium etc. Thus it would become clear that as per schedule Rs.3,60,000/- + 9500= Rs.3,69,500/- should have been awarded as compensation whereas tribunal has awarded Rs.3,32,000/-. Consequently, in the light of above discussion, this appeal is partly allowed and the award dated 23.10.1999 passed by Judge, MACT, Jaipur City, Jaipur is modified to the extent that the award amount is enhanced from Rs.3,32,000/- to Rs.3,69,500/- and the appellants will be entitled to get interest as awarded by learned tribunal. (K.S.CHAUDHARI)J. K