J.K. Ranka, J.The instant appeal is directed against the award dated 17.10.2008 passed by Motor Accident Claims Tribunal, Tonk, in Claim Petition No.418/2007.

2. Brief facts noticed are that Kamlesh Kumar had gone to the river on tractor no.RJ26 RA 1741 with respondent No.1 at about 2:30 P.M., and it is alleged that since the height of the pal at the river was quite high, Kamlesh Kumar got down from the tractor and started walking side by side, and subsequent to that the tractor became imbalanced and overturned, and consequent to overturning of the tractor, Kamlesh Kumar came under the tractor as a result of which he died on account of severe head injury. FIR was lodged bearing no.8/2007 and after challan, charge-sheet was filed against respondent No.1 Rati Ram, who was driver of the tractor. It is stated that at the time of incident, deceased was of 21 years of age and was a student of IInd year engineering (B.E.). A claim of Rs. 79,25,000/- came to be lodged by the claimants, father and other relatives, and the Tribunal after considering the entire material and facts, allowed claim to the extent of Rs. 2,50,000/-, and while allowing the claim, the owner of the tractor was held liable for making good the amount allowed by the Tribunal and the Insurance Company was exonerated.

3. Learned counsel for the appellants contended that the amount allowed at Rs. 2,50,000/- is grossly low and contended that the deceased was a brilliant student, who was a student of IInd year engineering (B.E.) and since he was brilliant student, he was admitted in the engineering course and had a bright future. He contended that the amount ought to have been raised suitably in the light of judgment rendered by the Honble Apex Court in Radhakrishna & Another v. Gokul & Others (Civil Appeal No.9858/2013 decided on 31.10.2013).

4. Per contra, Mr. Om Prakash Jain, counsel for respondent No.2, owner of the tractor, contends that the liability inflicted on the owner is wholly unjust and perverse and even before the Tribunal he was not heard as no notice was received by the owner in this regard. He contended that an application was moved before the Tribunal about non service of notice, which was also rejected. He further contended that cross-objection was also filed to this effect in the instant appeal raising this controversy. He further contended that the eye-witness clearly contends that Kamlesh Kumar was walking side by side and, therefore, when the deceased was walking side by side, there was no involvement of the tractor at all, and a story has been made up just to implicate the owner of the tractor in this regard. He contended that when the tractor was duly insured, the liability of the Insurance Company was equally there, and there is no reason for exonerating the Insurance Company in this regard, and contended that the claim insofar as the respondent owner is concerned, deserves to be reversed.

5. Learned counsel for the Insurance Company Mr. Amarnath Pareek, contended that the Tribunal has rightly exonerated the Insurance Company as nothing was against the Insurance Company and liability has rightly been inflicted on the owner because the owner of the vehicle was in a rash and negligent manner driving the tractor. Admittedly, Kamlesh Kumar was sitting on the tractor and at that particular time when he was sitting on the tractor, the incident happened. The claim was lodged by father of the deceased Kamlesh Kumar and, therefore, averments made or facts narrated in the FIR is to be taken on its face value. In the alternative he also contended that the amount allowed at Rs. 2,50,000/- is not at all required to be interfered with as the Tribunal has taken into consideration the notional income and other factors and the claim now raised, is based on judgments delivered by the Honble Apex Court, much later to the controversy in issue. He relied upon the judgments rendered in the case of National Insurance Company Ltd. v. Korlamoti & Others, 2005 (1) T.A.C. 588 (Ori.), Mithlesh & Others v. Brijendra Singh Baghel & Others 2007 ACJ 10, and Oriental Insurance Co. Ltd. v. Premlata Shukla & Others 2007 ACJ 1928, and contended that the order of the Tribunal is just and proper and deserves to be affirmed.

6. I have considered the arguments advanced by the parties and in my view the finding reached by the Tribunal insofar as the negligence of owner is concerned, has attained finality and has not been challenged by the owner either by way of cross appeal or otherwise, therefore, in my opinion, the claim raised by the counsel for the owner, Mr. Jain, is to be out rightly rejected.

6.1. Admittedly, as per his own version, Mr. Om Prakash Jain, counsel, moved an application for recalling of the order of the Tribunal, which too, as according to him, was rejected, but then that order has also become final as that controversy was not raised before this court. Equally important is the fact that he filed a cross-objection arising out of this appeal which, too, came to be dismissed on 6.11.2013. Therefore, the finding reached by the Tribunal in its order having become final, recalling/rectification application, too, having been dismissed and which, too, having not been assailed, and cross-objection, too, having been dismissed separately, therefore, raising of the claim that the driver was not driving the vehicle in a rash and negligent manner, in my view, is against the facts and the finding of fact reached is required to be affirmed. In my view, the liability has been correctly levied on the owner for the fault of the driver of the tractor, namely Rati Ram.

7. In my view, the amount allowed at Rs. 2,50,000/- is on the lower side and considering the judgment in the case of Radhakrishna v. Gokul (supra) and other facts and material, and after taking into consideration the age factor of parents, father and mother of the deceased, in my view it would be appropriate to enhance the claim to Rs. 4,50,000/-. Accordingly, the claim is enhanced by Rs. 2,00,000/- and interest as granted by the Tribunal, would remain the same.

8. Consequently, the appeal is partly allowed.