Jaspreet Singh, J.

1. Heard Shri Anchal Mishra, learned counsel for the appellants and Shri Dinesh Kumar, learned counsel, who has put in appearance on behalf of the respondent No.3.

2. The record indicates that this Court by means of the order dated 03.07.2023 had required the Registrar of this Court to serve a copy of the order dated 03.07.2023 on the respondent No.3 - Company, because despite the service, none had appeared which was causing the delay in disposal of the appeal which is pending since 2010. In furtherance thereof, Shri Dinesh Kumar, learned counsel has put in appearance along with Shri Prashant Gaur, Legal Executive of the respondent No.3.

3. The Court has heard learned counsel for the parties and perused the material on record.

4. The instant appeal has been preferred under Section 173 of the Motor Vehicles Act, 1988 seeking enhancement of the award dated 06.09.2010 passed by the MACT/Additional District Judge, Court No.5, Gonda in Claim Petition No.62/2008 wherein in a death case, a sum of Rs.4,17,500/- alongwith 6% interest has been awarded in favour of the appellantsclaimants.

5. The submission of the learned counsel for the appellants is that the Tribunal has not appropriately considered the income of the deceased which was stated to be Rs.5,000/- per month rather the Tribunal has erred in adopting the notional income of Rs.3,000/- per month.

6. It is further submitted that the deduction has also been made incorrectly towards personal expenses as there were six dependents, the deduction should have been of 1/4 rather the deduction made by the Tribunal is 1/3 which is also erroneous. No provision for future prospects have been made nor adequate compensation has been granted for nonconventional heads towards consortium, loss of estate and funeral expenses. It is thus, urged that the amount as awarded by the Tribunal is grossly inadequate, hence, the appeal.

7. Learned counsel for the appellants has also pointed out that the Tribunal while apportioning the awarded sum has only awarded 50,000/- to the widow of the deceased whereas the remaining sum has been distributed amongst the children. It is urged that this aspect also require reconsideration.

8. Shri Dinesh Kumar, learned counsel for the respondent No.3 on the other hand submitted that though the appellants had stated that the deceased was earning of Rs.5,000/- per month from the business, but there was no adequate and cogent evidence to establish the aforesaid fact. In the aforesaid circumstances, there was no option but to treat the case as of notional income and the Tribunal has adequately taken a sum of Rs.3,000/- per month which is most proper and requires no interference. However, he could not dispute the fact that insofar as the future prospects and consortium and other non-conventional heads are concerned, the amount awarded is quite inadequate and contrary to the settled principles as laid down by the Apex Court in National Insurance Company Ltd. vs. Pranay Sethi and others, reported in (2017) 16 SCC Page 680. However, he has pointed out that that insofar as the multiplier which has been adopted by the Tribunal is concerned, considering the age of the deceased as 35 years, the multiplier appropriate is 16, but the Tribunal has adopted the multiplier of 17 which has also enhanced the compensation and barring the grant of compensation towards non-conventional heads, there is not much difference for grant of compensation and accordingly this Court may not interfere in this matter.

9. The Court has considered the rival submissions and before adverting to the same, certain brief facts giving rise to the appeal are being noticed hereinafter.

10. A claim petition No.62/2008 was filed before the Motor Accident Claims Tribunal, Gonda in respect of the death of Shri Prem Chandra Yadav which occurred on 16.06.2008 while he was travelling on his bicycle from his home to Mankapur. It is said that as soon as the deceased reached Mankapur, a bus bearing No.UP-75-A-5412, which was coming from the side of Saddula Nagar was driven rashly and negligently and hit the bicycle from behind, as a result, the deceased received grievous and died on the spot. It is in this context that a claim petition was filed which was contested by the respondents.

11. Upon exchange of the pleadings, the Tribunal had framed five issues and after noticing the evidence led by the parties, the Tribunal recorded a finding that the accident occurred on account of rash and negligent driving of the bus bearing No.UP-75-A-5412. It is also found that the bus duly insured with the respondent No.3 and the driver of the bus apart from other various relevant documents possessed a valid and subsisting driving licence. Consequently, it went on to consider the issue of quantum and noticing that the deceased had left behind his wife and five children and taking it a case to be that of notional income, applying the multiplier and adding certain amounts towards non-conventional heads, the Tribunal awarded a sum of Rs.4,17,500/- along with 6% interest by means of the award dated 06.09.2010 which is under challenge in the instant appeal.

12. At the outset, it may be noted that the Insurance Company or the respondents No.1 and 2 have not filed any appeal nor raised any objection under Order 41 Rule 22 CPC. As a consequence, the findings regarding the accident, negligence as well as the liability of the insurance to subrogate the award are not under challenge and consequently are accepted by the Court.

13. In the aforesaid backdrop, the only issue that needs consideration in the instant appeal is as to whether the Tribunal has awarded a just and fair compensation in the given facts and circumstances also in light of the submissions made by the respective counsel for the parties.

14. Having taken note of the aforesaid first and foremost it is to be seen as to whether the appellants have been able to establish the income of the deceased appropriately.

15. It was pleaded that the deceased was earning a sum of Rs.5,000/- per month from dairy business, but apart from this bald averment there is nothing on record to corroborate or to establish the aforesaid fact. A reference was made to certain entries in the pass-book which has been brought on record, however, it does not disclose as to whether the amount which is lying in deposit in the said account was an outcome of the earnings from the business and was an income generated thereform. There are no material particular regarding the dairy business and thus in the aforesaid circumstances, the Tribunal did not consider it worthwhile to treat the income of the deceased as Rs.5,000/- but took the case of notional income was Rs.3,000/- which this Court is of the opinion cannot be said to be incorrect in the given facts and circumstances. Consequently, this part of the findings is affirmed.

16. Having noticed the aforesaid, this Court further is of the opinion that apparently the issue regarding the future prospect has escaped the attention of the Tribunal.

17. Considering the age of the deceased as 35, the appropriate multiplier as approved by the Apex Court in the case of Pranay Sethi (supra) is 16 to which 40% ought to be added towards the future prospect.

18. Since, there are six dependents, accordingly, the deduction towards personal expenses ought to be 1/4. This Court further finds that the Tribunal grossly erred in considering the issue of consortium and other non-conventional heads. The record indicates that the deceased has left behind his wife and five children. The wife is entitled to spouse consortium whereas every child is entitled to parental consortium. This Court is fortified in its view in the decision of the Apex Court in the case of Magma General Insurance Company Ltd., v. Nanu Ram 2018 SCC OnLine SC 1546.

19. Considering the aforesaid, this Court is of the firm opinion that the award requires relook and accordingly the Court recomputes the compensation as under:-

"Income = Rs.3,000/- per month.

Add: Future Prospect @ 40% = Rs.1,200/- per month.

Net Income: = Rs.4,200/- per month.

Income after deduction of 1/4 = Rs.3,150/-.

Age = 35.

Multiplier = 16.

Thus compensation payable = Rs.3150 x 12 x 16 = 6,04,800/-.

Add: Loss of Estate = Rs.15,000/-.

Add: Funeral expenses = Rs.15,000/-.

Add: spouse consortium (the appellants No.1) = Rs.40,000/-.

Parental consortium for appellants No.2 to 6 Rs.40,000/- each [Rs.40,000 x 5 = 2,00,000/-] = Rs.2,00,000/-.

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Thus, total compensation payable shall be = Rs.8,74,800/-.

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20. Considering the facts and circumstances, the appellants-claimants shall be entitled to a total sum of Rs.8,74,800/- along with interest @ 6% per annum from the date of the application till the date of payment. Any amount already paid shall be deducted from the aforesaid amount. The remaining amount shall be paid by the respondent No.3 to the appellantsclaimants within sixty days from the date a copy of this judgment and order is placed before the authority concerned.

21. This Court is further of the view that the manner in which the award has been apportioned is not just and appropriate inasmuch as the wife (the widow of the deceased) is also entitled to a share. She was being the mother and guardian of all other children including one who has now attained majority during pendency of the proceedings and their interest also has to be seen. Accordingly, this Court finds that the appellant No.1 shall be entitled to 50% of the awarded amount and the remaining 50% shall be equally apportioned in favor of the appellant No.2 to 6. The amount so determined relating to the minor children shall be placed in an interest bearing account and shall be made payable and receivable by them on attaining the age of majority.

22. Thus, in the facts and circumstances, the appeal is partly allowed. There shall be no order as to costs. The record of the Tribunal shall be remitted expeditiously.