S.G.Pandit, J. - Appellants/Claimants are before this Court, being not satisfied with the quantum of compensation awarded under the judgment and award dated 14.12.2009 passed by the II Additional Civil Judge and 6th Additional MACT, Davanagere (hereinafter referred to as the Tribunal for short) in MVC No.539/2008.

2. The claimants are wife, mother and children of deceased Hanumanthappa. They filed claim petition under Section 166 of the Motor Vehicles Act, 1989 claiming compensation for the death of Hanumanthappa in the road traffic accident occurred on 10.01.2008, while the deceased was traveling in a paddy loaded lorry bearing registration No.KA-01/6669 as a cleaner, driver of the lorry drove the same in a high speed and in a rash and negligent manner and failed to control the said lorry, thereby caused the accident. Due to the said accident, the deceased died on the spot. It is stated that the deceased was aged about 40 years at the time of death and said to be earning salary of Rs.4,000/- p.m. and Rs.100/- as daily batta.

3. Respondent No.3/insurance company appeared before the Tribunal and filed their objections denying the petition averments. It is also stated that the accident had not taken place due to rash and negligent driving of the offending lorry. It is also contended by the insurance company that the deceased was not a cleaner in the offending lorry, but was traveling as a passenger in the goods vehicle and the insured entrusted the vehicle to the driver who did not possess the valid and effective driving license, thereby violated the terms and conditions of the policy.

4. In order to prove the case of claimants, first claimant got herself examined as P.W.1 and marked the documents as Ex.P1 to Ex.P7.

5. The Tribunal, based on the material on record awarded total compensation of Rs.2,84,000/- with interest at the rate of 6% p.a. The claimants being not satisfied with the quantum of compensation are before this Court in this appeal seeking enhancement of compensation.

6. Heard the learned counsel for the appellants and learned counsel for the third respondent/insurance company. Perused the appeal papers.

7. Learned counsel for the appellants/claimants would submit that the Tribunal committed an error in taking the monthly income of the deceased at Rs.3,900/- for determining loss of dependency which is on the lower side. He submits that minimum of Rs.4,500/- ought to have been taken as monthly income of the deceased. It is also submitted that the compensation awarded on conventional heads is also on the lower side. It is submitted that the deceased was working as a cleaner and aged about 40 years at the time of death. Further, the claimants would be entitled to 25% of additional income towards future prospects. Thus, he prays for allowing the appeal.

8. Per contra, learned counsel for the third respondent/ insurance company would submit that the compensation awarded by the Tribunal is just and proper which needs no interference. It is also contended that the Tribunal could not have entertained the claim petition since deceased was working with respondent No.2 and there was employer and employee relationship, which falls under Workmens Compensation Act.

9. The accident occurred on 10.01.2008 involving the lorry bearing registration No.KA-01/C-6669 and the accidental death of deceased Hanumanthappa is not in dispute in this appeal. The claimants have sought for enhancement of compensation on the ground that they lost the bread earner of the family and they have suffered mental agony due to untimely death of the deceased. The contention of the respondent/insurer that there was relationship of employeremployee between the deceased and respondent No.2 and falls under Workmens Compensation Act is liable to be rejected. The claimant was working as cleaner and has option to claim compensation either under the Motor Vehicles Act or Workmens Compensation Act. More over the insurer has not challenged the judgment and award. It is submitted that the notional income of Rs.3,900/- p.m., taken by the Tribunal is on the lower side. This Court and Lok Adalaths, while determining the compensation for the accidents of the year 2008 would normally reckon the notional income of Rs.4,500/- p.m. in the absence of proof of income. Accordingly, it would meet the ends of justice to assess the monthly income of the deceased Hanumanthappa at Rs.4,500/- for determination of loss of dependency.

10. The deceased was aged about 40 years as on the date of accident. The Honble Supreme Court in the case of NATIONAL INSURANCE COMPANY LIMITED v/s PRANAY SETHI AND OTHERS, (2017) 16 SCC 680 [LQ/SC/2017/1578] has held that where the deceased is aged more than 40 years, the claimants would be entitled to 25% additional income to be taken towards future prospects. Accordingly, in the case on hand also, the claimants would be entitled to 25% additional income under the head future prospects, as the deceased was aged about 40 years at the time of death. Thus, the claimants would be entitled to modified compensation of Rs.6,75,000/- towards loss of dependency (4500 + 25% = 5625 1/3 = 3750 x 12 x 15 = 6,75,000/-). The claimants are also entitled to a sum of Rs.70,000/- as against Rs.50,000/- awarded by the Tribunal towards conventional heads. Thus, the claimants are entitled to total compensation of Rs.7,45,000/- as against Rs.2,84,000/- as awarded by the Tribunal, with interest at the rate of 6% p.a.

11. Accordingly, the appeal is allowed in part. The impugned judgment and award dated 14.12.2008 passed in MVC No.539/2008 on the file of the II Additional Civil Judge (Sr.Dn.) and VI Additional MACT at Davanagere is modified. The appellants/claimants are entitled to compensation of Rs.7,45,000/- as against Rs.2,84,000/- awarded by the Tribunal, with interest at the rate of 6% p.a. The apportionment and deposit would be as ordered by the Tribunal.