ORDER

1. By this common order MA No. 267/2017, which has been filed by the claimants, and M.A. No.296/2017, which has been filed by the Insurance Company, shall be decided.

2. Both the Miscellaneous Appeals have been filed against the award dated 22.11.2016 passed by Fifth Additional Motor Accident Claims Tribunal, Gwalior in Claim Case No.191/2014. M.A. No. 267/2017 has been filed by the claimants for enhancement of compensation amount, whereas M.A. No. 296/2017 has been filed by the Insurance Company challenging the award passed by the Claims Tribunal. The claimants have valued the appeal at Rs. 2,00,000/-.

3. The necessary facts for disposal of the present appeals in short are that on 19.5.2008 the deceased Jaipratap alias Akash was traveling in a Maruti car bearing registration No. MP 07 CA 2351 along-with other persons. The said car was being driven by Bijendra Singh. When the car reached near Dholagarh Gate, AB Road, at that time the, driver of the offending Truck namely Harprasad by driving the truck No. HR 38 A 2837, which was owned by respondent No. 2, in a rash and negligent manner dashed the car, as result of which, the deceased Jaipratap alias Akash suffered serious injuries and expired on the spot. It is undisputed fact that the deceased Jaipratap alias Akash was aged about 9 years and was the student of K.G. Children School. Accordingly, the appellants/claimants filed a claim petition under section 166 of the Motor Vehicles Act for grant of compensation amount of Rs.10,00,000/-.

4. The Claims Tribunal by the impugned award dated 22.11.2016 came to a conclusion that the respondent No.1, namely, Harprasad was driving the offending truck No. HR 38 H 2837 in a rash and negligent manner and was responsible for causing the accident. Further, the age of the deceased Jaipratap alias Akash was assessed as 9 years and accordingly, held that her notional income would be Rs.15,000/- per year and after deducting 1/3rd towards the personal expenses, assessed that the annual loss of dependency would be Rs. 10,000/- and applied the multiplier of 15 and further awarded Rs. 25,000/- towards loss of estate and Rs. 25,000/- towards funeral expenses.

5. Challenging the impugned award passed by the Claims Tribunal, it is submitted by the counsel for the Insurance Company that although the driver of the offending vehicle had expired during the pendency of the claim petition, however, his legal representatives were not brought on record and the name of Harprasad was deleted and as the owner of the offending vehicle is vicariously liable for the act of his employee and since the claim petition had abated against the driver, therefore, the Insurance Company is not liable to indemnify the owner. Further, by order dated 8.11.2016 the application filed by the Insurance Company for summoning the owner with driving license was wrongly rejected and the owner of the offending truck did not appear before the Court and under section 134 of the Act it is mandatory on the part of the owner of the offending vehicle to cooperate with the Insurance Company and by order dated 16.11.2016 the Claims Tribunal had wrongly closed the rights of the Insurance Company to lead evidence.

6. In reply, it is submitted by the counsel for the claimants that in fact the driving license of the driver of the offending vehicle was seized by the police. Furthermore, it was for the Insurance Company to prove that the driver of the offending truck was not having any driving license and since the Insurance Company has failed to prove the same, therefore, the Insurance Company cannot be exonerated. It is further submitted that several other claim petitions were also filed, i.e. Claim Case No. 38/2009 and 39/2009 before the Court of 6th Additional Motor Accident Claims Tribunal and in those claim petitions, it was held that the Insurance Company has failed to prove that the driver of the offending truck was driving the vehicle without having any valid driving license. It is s