JUDGMENT
Dalip Singh, J.
1. This appeal has been filed against the award dated 19.7.1994 passed by the Motor Accident Claims Tribunal, Jaipur City, Jaipur (hereinafter referred to as “The Tribunal’) in Claim Petition No. 306/1984 filed by the appellants for compensation in respect of the death of Tulsi Ram the husband of the appellant No. 1 and the father of the appellant Nos. 2 to 6. The deceased met with an accident on 7.6.1984 while travelling in a bus bearing No. RRM 4758 which was owned by the respondent No. 2. The deceased was aged 38 years and at the relevant time was employed in the Malaria Department, Govt., of Rajasthan. He was at the relevant time drawing salary of Rs. 552/- per month. The learned Tribunal awarded a sum of Rs. 1,25,000/- (Rs. one lack twenty-five thousand only) to the appellants by way of compensation. Dissatisfied with the aforesaid award, the appellants have preferred this appeal for enhancement of the compensation.
2.The submission of the learned Counsel for the appellants is that the learned Tribunal has erred in adopting the multiplier of 12 whereas as per the guidelines which are available in the II Schedule of the Motor Vehicles Act, 1988, in the cases of persons in the age group of 34 to 40 years, the multiplier of 16 ought to have been applied, as the deceased was 38 years of age. This fact with regard to the age of the deceased is not in dispute.
3. Their Lordships of the Hon’ble Supreme Court in the case of Abati Bezbaruah v. Dy. Director General, Geological Survey of India and Anr. I (2003) ACC 352 : 2003 (2) WLC (SC) Civil 149, where in para 11 Their Lordships have held that the provisions contained in II Scheduled of the Motor Vehicles Act, 1988 are a guideline and accordingly this case may also be dealt with under the provisions of the II Schedule of the M.V. Act, 1988.
4. In the facts and circumstances of the present case, the dependency of the family after deducting the amount for personal expenses has been determined by the Tribunal as Rs. 9,000/- per year. In the instant case, in place of multiplier of 12 which was adopted by the Tribunal, a multiplier of 16, as prescribed under the M.V. Act, 1988 for person in the age group of 30-40 years is hereby applied and, consequently, the amount of compensation is enhanced under the head of loss of earning and is calculated as Rs. 9000 x 16 = 1,44,000/- (Rs. one lac forty-four thousand only). The appellants would consequently be entitled to receive the enhanced amount of compensation as Rs. 1,44,000/- in place of Rs. 1,08,000/- (Rs. one lac eight thousand only) for the loss of earning. However, it is made clear that the amount of Rs. 15,000/- as awarded for loss of consortium remains unchanged in this appeal.
5. Learned Counsel for the respondent Insurance Company had earlier submitted that in the instant case, the service of notice on the respondent Nos. 1 and 2 were dispensed with and, consequently, this appeal should not be heard in their absence.
6. Suffice it to say that in the instant case, no objection was raised on behalf of the respondent Insurance Company at the time when the order for dispensing with the service of the respondents was passed by the Court on 8.2.2002. Despite the fact that the respondents were given a copy of the application which was moved for this purpose. Moreover the respondents even did not choose to appear before the Court on 8.2.2002. At this stage in this appeal of the year 1994, this objection cannot be entertained and, consequently, the same is rejected. It is further made clear that the objection if at all cannot be raised by the Counsel appearing on behalf of the respondent No. 3 because the respondent No. 3 is the Insurance Company and has already been represented by his Counsel in Court. This objection consequently being devoid of force and the same is hereby rejected. Moreover, no prejudice is being caused to the respondent No. 3 who has raised this objection before this Court as they have been afforded full opportunity to defend their case and the only change being made as indicated above is that the multiplier as has been provided in the statute as applicable to the age group of 35 to 40 years of age has been applied. In the facts and circumstances of the present cases, the objection raised by the learned Counsel for the respondents have no merit and is rejected.
7. Learned Counsel for the respondents has also submitted that the liability of the Insurance Company cannot be enhanced and the Insurance Company cannot be made liable to make the entire payment. It is settled law that the liability of the Insurance Company is joint and several along with the owner and the driver. Their Lordships of the Hon’ble Supreme Court in the case of Oriental Insurance Co. Ltd. v. Cheruvakkara Nafessu and Ors. I (2001) ACC 335 (SC) : 2001 WLC (SC) Civil 121, have held that the claimants are entitled to recover the entire amount of the Insurance Company which paid amount in excess of the statutory liability and it is free of recover the same from the owner and the driver. A similar view has been taken in a recent judgment rendered in the case of National Insurance Co. Ltd. v. Swaran Singh and Ors. , where in para 99 (Conclusion) of the judgment Their Lordships of the Supreme Court (three Judges Bench) have held as under:
Para 99. It is, therefore, evident from the discussions made hereinbefore that the liability of the Insurance Company satisfy the decree at the first instance and to recover the awarded amount from the owner or driver thereof has been holding the field for a long time.
8. In this view Of the matter the submission of the learned Counsel for the Insurance Company is devoid of merit and hence rejected. It is, however, made clear that in case the insurer is made to pay any amount in excess of its statutory liability the insurer is freg to recover the same from the owner and driver.
9. Consequently, this appeal is allowed to the extent that under the head of loss of income the amount determined by the Tribunal as Rs. 1,08,000/- (Rs. one lac eight thousand only) is enhanced to Rs. 1,44,000/- (Rs. one lac forty-four thousand only) an additional amount of Rs. 36,000/- (Rs. thirty six thousand only). In all the Tribunal awarded the compensation amounting to Rs. 1,25,000/- (Rs. one lac twenty-five thousand only) to the appellants. The appellants would be entitled to Rs. 1,25,000/- + Rs. 36,000/- (Rs. thirty-six thousand only) i.e., in all Rs. 1,61,000/- (Rs. one lac sixty-one thousand only). In case, the respondents pay or deposit the amount of Rs. 1,25,000/- (Rs. one lac twenty-five thousand only) or any other amount, the same shall be liable to be deducted out of the amount of Rs. 1,61,000/- (Rs. one lac sixty-one thousand only) and the balance amount is liable to be paid by the respondents jointly and severally to the appellants with interest. In case, the respondents deposit or pay to the appellants the enhanced and the balance amount as indicated above, within a period of three months w.e.f. the furnishing of the certified copy of this judgment by the appellants to the respondents, the same shall be paid or deposited with interest @ 6% per annum from the date of filing of this appeal i.e., 27.9.1994. In case, the respondents fail to pay or deposit the said amount within a period of three months as indicated above, the appellants shall be entitled to recover the same from the respondents with interest @ 9% per annum. w.e.f. the date of filing of the claim petition i.e., 27.8.1984.
The parties shall bear their own costs.