The main legal point established in the judgment is that the appellant cannot take advantage of its own lack of pleading or issue raised before the lower tribunal and that the determination of compensation must be in consonance with the parameters prescribed by the various precedents of the Hon’ble Apex Court as well as the provisions of the Motor Vehicle Act.

JUDGMENT :

(Sharad Kumar Sharma, J.)

Heard learned counsel for the parties.

2. The challenge in the instant Appeal from Order is to the award dated 27.04.2017, as it was rendered by the learned Motor Accident Claim Tribunal, in Motor Accident Claim Petition No.272 of 2016, “Smt. Shobha Devi and Others Vs. Shri Mangal Singh and Others”.

3. As per the facts, which are involved in the case, are that, on 26.06.2016, late husband of the applicant/claimant no.1, had met with the sad demise, on account of the accident, which has chanced at about 7:00 p.m. at Rishikesh Bazar, when the deceased was returning to his home on a cycle, he was dashed by the rashly driven offending vehicle bearing Registration No.UK-08-TA-4007, which was insured with the present appellant.

4. It was contended by the claimants that the deceased was employed with THDC and he was having an earning of Rs.77,690/- per month. At the time of accident, he was of 49 years 8 months and 18 days old and thus, pray for a compensation to be paid of an amount of Rs.93,31,000/-. The claim petition was opposed by the opposite party no.3 i.e. the insurance-appellant herein, who has filed written statement paper no.26B contending therein, that the claim petition, as preferred by the claimants would be barred by the provisions contained under Section 149(2) and Section 170(2) of the Motor Vehicle Act, which leaves it upon for the Insurance Company to take all the defence of their case in relation to the provisions of the insurance policy and with regards to the insurance cover provided to the offending vehicle.

5. The learned Motor Accident Claim Tribunal after exchange of pleading has formulated the following questions:-

^^1- D;k fnukad 26-06-2016 dks le; lka; yxHkx 07%00 cts LFkku _f"kds'k fgj}kj okbZikl ij ,ŒvkjŒVhŒvksŒ dk;kZy; _f"kds'k ds ikl esa okgu laŒ ;wŒdsŒ&08 VhŒ,Œ&4007 ds pkyd }kjk mDr okgu dks rsth o ykijokgh ls pykdj e`rd lksgu yky }kjk pyk;h tk jgh lkbZfdy esa VDdj ekj nh x;h ftlds ifj.kkeLo:i vk;h xaHkhj pksVksa ds dkj.k e`rd lksgu yky dh e`R;q gks x;h\

2- D;k nq?kZVuk ds le; okgu laŒ ;wŒdsŒ&08 VhŒ,Œ&4007 oS/k MªkbZfoax ykbZlsal o oS/k izi=ksa ds lkFk pyk;k tk jgk Fkk\

3- D;k ;kph i{k okafNr vuqrks"k ikus ds vf/kdkjh gSa] ;fn gka rks fdl i{kdkj ls\^^

6. The parties led their respective oral and documentary evidence. As per the statements which were recorded by PW1 Shobha Devi, PW2 H.S.Negi and PW3 Devkrishan Semwal, to establish the factum of the accident having been chanced on 26.06.2016 and consequently, the act of negligence and cause of death was on account of rash and negligent driving of the vehicle bearing registration no.UK-08-TA-4007.

7. The second question, which was required to be considered, was as to whether what adequate compensation the claimants would be entitled to receive. The said questions have been decided by the learned Tribunal while deciding issue no.3. While deciding the same, the Court has determined the income, which was based on the income, which accrued to the deceased by determining that the annual income accruing to the deceased would be Rs.9,32,280/- per annum and thus, after making a deduction of 1/4 of the income, the learned Motor Accident Claim Tribunal, after applying the multiplier of 13, had determined the compensation to be made payable to the tune of Rs.1,09,78,210/-

8. The learned counsel for the appellant has argued the matter though, without a pleading being raised either in the statement or even without a ground being taken in the present appeal from order to the effect that the entire proceedings before the learned Motor Accident Claim Tribunal, would be vitiated, in view of the provisions contained in the first proviso to Section 166 of the Motor Vehicle Act, which makes it incumbent that all the legal representatives of the deceased should have been joined as a party to the application for claim of compensation.

9. The plea of non-joining of all the heirs or legal representatives of the deceased, were the plea availabl