The court's decision was influenced by the application of the criteria of minimum wages, the judgment of the Supreme Court in Sarla Dixit Vs. Balwant Yadav and Ors, 1996, III AD SC 13, and other relevant judgments in determining the deceased's income and addressing the insurer's payment and recovery.

KAILASH GAMBHIR, J.

( 1 ) THE appellants have filed the present appeal under Section 173 of the Motor Vehicles Act 1988, feeling aggrieved with the order dated 21. 2. 2004 passed by the Motor Accident Claim Tribunal. The appellants are primarily aggrieved on two counts; firstly that the Tribunal has not taken into consideration the monthly income of the deceased which was stated to be rs. 2,500/- per month, secondly the Tribunal has not given directions to the insurer to pay the award amount and thereafter to recover the same from the owner of the offending vehicle.

( 2 ) IN support of his first contention counsel for the appellants has relied upon the statement of PW-2, father of the deceased who has categorically stated in examination-in-chief that the deceased was earning Rs. 2,500/- per month at the time of his accident. The submission of the counsel for the appellants is that once the clear cut deposition was made by the witness, the tribunal ought not to have taken any other income to be the salary of the deceased.

( 3 ) I do not find any force in the submission of the counsel for the appellant as in the cross-examination of PW-2 the witness has stated that he was not in a position to show any proof that the deceased was earning Rs. 2,500/- per month. The Tribunal in these circumstances has taken into consideration the criteria of minimum wages which at the relevant time was applicable for an unskilled labour and has accordingly taken the income of the deceased at rs. 1545/- per month. The Tribunal has clearly held that there is no documentary evidence supporting the earnings of the deceased and therefore the Tribunal applied the criteria of minimum wages in the instant case. The Tribunal has also taken into consideration not only the said income of the deceased at the time of his death but his assumed increased income with the passage of time, had he survived the accident. The Tribunal after applying the ratio of the judgment of the Supreme Court in Sarla Dixit Vs. Balwant Yadav and Ors, 1996, III AD SC 13, has arrived at Rs. 18,540/- towards the total yearly loss of dependency to the claimants. The Tribunal has also made applicable the multiplier of 18 after taking guidance from the Second schedule of the Motor Vehicles Act and accordingly granted Rs. 3,33,720/-towards the loss of dependency of the claimants/appellants. I, therefore, do not find any infirmity with the findings of the tribunal on this aspect.

( 4 ) NOW coming to the second contention of the appellant that the interest of the appellants could have been better served had the insurer given directions to pay the amount at the first instance and thereafter, the same could have been directed to be recovered from the insured, owner of the offending vehicle. In support of his contention, the counsel for the appellants has relied upon the judgment of the Supreme Court in National Insurance Co. Ltd. Vs. Baljit Kaur and Ors. , 2004 ACJ 428.

( 5 ) THE contention of the appellant is that although the Tribunal has referred to the said judgment in the impugned order but at the same time missed its sight from the main operative part of the same whereby the Supreme Court has held that the interest of the claimants can be best served if the directions are given to the Insurance Company to satisfy the award at the first instance and for recovery the insurer can take steps against the insured. On the other hand counsel for the respondent has argued that the present case is clearcut case of violation of the insurance policy, relevant provisions of Motor Vehicles Act as well as terms of permit as the insured has permitted the deceased to travel on a goods vehicle. The counsel for the respondent has relied upon the decision of the Full Bench of the Supreme Court in the case of M. V. Jayadevappa and Anr. Vs. Oriental Fire and Genl. Ins. Co. Ltd and Ors. , 2005, ACJ 1801, wherein the Supreme Court had held that passengers were gratuitous passengers and the vehicle being the