JUDGMENT

A. S. NAIDU, J. : M.A.C.A. No. 806/2005 has been filed by the United India Insurance Co. Ltd. under Section 173 of the Motor Vehicles Act assailing the award dtd. 31st March, 2005 passed by the Second Motor Accident Claims Tribunal, Cuttack in Misc. Case No. 8/2003. The same judgment is also assailed by the claimants as appellants in M.A.C.A. No. 758/2005.

2. The facts and points of law involved in both these cases being same, with consent of learned counsel for the par¬ties, the same were heard together.

3. The scenario of facts reveals that on 31st December, 2002 one Laxmidhar Nayak was standing near Jankia Police Station in the district of Khurda on the left side of the road. At that juncture, a truck bearing Regn. No. OR-07-D-9691 driven in a rash and negligent manner came in a high speed and knocked him down. Consequently, he sustained serious injuries on the head and other parts of his body. He was moved to Khurda Hospital and then to Capital Hospital before he succumbed to the injuries. It is stated that the deceased was aged about 38 years and was working as a Farash in G.A. Department, Government of Orissa. It is further alleged that a sum of Rs. 30,000/- was spent towards his treatment. His widow, minor son and old parents filed a petition under Section 166 of the Motor Vehicles Act claiming compensa¬tion.

4. After receiving notice the owner of the offending Truck appeared and filed his written statement denying all the averments made in the claim petition except admitting the ownership further taking the stand that the Truck was duly in¬sured.

5. The Insurance Company in its written statement vaguely denied all the averments and called upon the petitioner-appellants to strict proof of their case by adducing substantial evidence. Validity of insurance policy and driving licence of the driver of the offending truck was also disputed.

6. The Tribunal on the basis of the pleadings framed as many as four issues. In order to substantiate their case the petitioner-appellants got three witnesses examined and exhibited nine documents. The Insurance Company got examined only one witness and exhibited a letter of the R.T.O., Ganjam as Ext. A. The Tribunal after discussing the evidence in extenso and relying upon the F.I.R. and other materials came to the conclusion that the death of Laxmidhar Nayak was caused due to rash and negligent driving of the driver of the offending vehicle. The Tribunal arrived at the conclusion that the driver had a valid driving licence and the offending vehicle was duly insured. Taking into consideration his gross salary to be Rs. 4,408/- and his age to be 40 years, the Tribunal, awarded a compensation of Rs. 4,61,000/- with interest thereon @ 9% per annum from 25.2.2004 till realization.

7. The said award is assailed by the petitioner-appellants in M.A.C.A. No. 758/2005 mainly on the ground that the Tribunal acted illegally and with material irregularity in not taking the amount spent for medical treatment into consideration and that the Tribunal committed an error in applying a lower multiplier inasmuch as after determining the age of the deceased to be 40 years, the correct multiplier ought to have been “15” instead of “13”. According to the petitioner-appellants the amount awarded should be enhanced suitably.

8. The Insurance Company, on the other hand, assailed the award mainly on the ground that the driver of the offending vehicle was not possessing a valid driving licence and that the Tribunal acted illegally and with material irregularity in as¬sessing the compensation taking into consideration the gross salary, though law is well settled that the calculation should be made on the basis of the net salary of an employee and not the gross salary. According to learned counsel for the Insurance Company the Tribunal also committed an error in applying “13” multiplier and as such the amount awarded has been excessive and also the rate of interest awarded has been higher and it is a fit ca