S. SUJATHA, J.

1. The insurer as well as the claimants are before this Court challenging the impugned judgment and order passed by the Motor Accident Claims Tribunal, Chitradurga (the ‘Tribunal’ for short) in MVC No. 159/2010.

2. Briefly stated the facts are:-

The claimants are the parents of the deceased Praveen who died in the road traffic accident which occurred on 6.2.2009 involving the vehicle-struck bearing Regn.No.KA-17-A-6478 and truck bearing Regn.No.TN-28-L-9657. It is the case of the claimants that the deceased was proceeding in the truck bearing No. KA-17-A-6478 as a cleaner and the said accident occurred due to the actionable negligence of the driver of the truck bearing Regn.No.TN-28-L-9657. It transpires that the deceased suffered severe fatal injuries and succumbed to the injuries in the course of treatment. The claim petition was instituted by the claimants based on these facts claiming compensation. The Tribunal after evaluating the evidence on record awarded compensation of Rs.6,26,000/- with interest @ 6% p.a. Being aggrieved, the insurer is before this Court challenging the liability as well as the quantum being excessive. The claimant is before this Court seeking enhancement of the compensation.

3. The learned counsel appearing for the insurer would contend that the vehicle in question was not covered with the wider coverage; no additional premium to cover the risk of the cleaner was paid; the insurance policy marked at Ex.R.1 covered the basic third party liability besides the coverage for paid driver and owner cum driver. In such circumstances, the Tribunal had no jurisdiction to entertain the case. The order passed by the Tribunal without any jurisdiction is void ab initio and deserves to be set-aside. Utmost, the claimants would have invoked the provisions of the Workmen’s Compensation Act, 1923 (W.C. Act for short) seeking compensation. In support of his contention, the learned counsel placed reliance on the following judgments:-

(1) NATIONAL INSURANCE CO. LTD. vs. PREMBAI PATEL AND OTHERS, 2005 (6) SCC 172

(2) SMT. BHIMAVVA AND OTHERS vs. SHANKAR @ ADYA AND OTHERS, ILR 2003 Kar. 3538

The learned counsel in order to establish his case would rely on paragraph 9 of the objections filed by the appellant before the Tribunal.

As regards the quantum of compensation awarded, it is contended that the Tribunal erred in considering the income of the deceased at Rs.4500/- per month without any cogent evidence placed on record by the claimants. It is submitted that the Tribunal further erred in deducting 1/3 of the income towards the personal expenses of the deceased which ought to have been at 50% in view of the law laid down by the Apex Court in SARLA VERMA AND OTHERS vs. DELHI TRANSPORT CORPORATION AND ANOTHER case reported in 2009 (6) SCC 121.

4. The learned counsel appearing for the claimants would contend that no plea was made by the insurer as regards the jurisdiction of the Tribunal in adjudicating the matter. Neither the objection filed by the insurer nor the evidence discloses the objection regarding lack of jurisdiction of the Tribunal vis-a-vis terms and conditions of the liability envisaged in the insurance policy at Ex.R.1. It is submitted that no such ground is taken by the appellant in the grounds of appeal memorandum. It is for the first time at the arguments stage, the learned counsel appearing for the insurer is canvassing a new ground, which cannot be entertained. The learned counsel would further contend that the insurer is making an attempt to transfer the liability of satisfying the award on the owner albeit the service of notice being dispensed with, to the owner, at the instance of the insurer. The insurer is acquiesced from taking a new ground that no additional premium was paid by the owner towards the coverage of risk of the cleaner. It was for the insurance company to establish