Compensation claims under the Motor Vehicles Act are not rendered non-maintainable by the absence of the vehicle's driver as a party.

1. Heard the learned advocate Mr. Vibhuti Nanavati for the appellant insurance company in these two appeals.

2. By filing these appeals, appellant has challenged award made by the M.A.C.T., Jamnagar in Claim Case Nos. 16 and 49 of 2007 dated 30.8.2008 wherein Claims Tribunal has awarded compensation of Rs.6,35,000 and Rs.7,02,000 respectively with 9 per cent interest thereon in favour of claimants for the accident which occurred on 30.12.2006 wherein two persons died, one Dosmohamad Jusabbhai Sodha and second Amad Dosmohamad Movar and third person received injury.

3. The learned advocate, Mr. Nanavati raised contention before this court that the driver of offending truck was not joined as a party in claim petitions filed by claimants. He submitted that driver is necessary party and because of negligence on the part of driver, vicariously, owner is becoming liable and the insurance company has to indemnify owner, therefore, according to him in absence of driver question of negligence cannot be examined by the Claims Tribunal. He submitted that specific application, Exh. 72, was preferred by appellant before the Claims Tribunal that the driver should be joined as a party to claim petitions but that application was rejected by Claims Tribunal. As per his submission, said contention was also specifically raised by appellant in its written arguments, Exh. 76, but Claims Tribunal has not considered it and in doing so, Claims Tribunal has committed an error and, therefore, interference of this court is required. He relied upon Apex Court decision in case of Oriental Insurance Co. Ltd. v. Meena Variyal , 2007 ACJ 1284 (SC). He read before this court para 9 of said judgment and pointed out that driver is must, in absence of driver, negligence question cannot be examined and, therefore, Claims Tribunal has committed an error in deciding issue of negligence in absence of driver. He also raised specific contention on merits in respect to Dosmohamad. He submitted that Claims Tribunal has committed gross error in considering income from two sources, one from the source of providing labour contract to employer and also having income from agricultural land for supervision, receiving two crops in a season. He submitted that Claims Tribunal has considered income of Rs.5,100 without any cogent evidence from side of claimants. He submitted that looking to age of deceased 42 to 43 years, multiplier of 15 applied by Claims Tribunal is on higher side and Claims Tribunal ought to have applied multiplier of 10 or 12 at the most and thus, according to him award made by the Claims Tribunal is on higher side.

4. As regards case of deceased Amad Dosmohamad, according to him he was working as fisherman having income of Rs.3,000 and considering future prospective income also at Rs.3,000 (Rs. 3,000 x 3 = Rs.9,000 less Rs.4,500 = Rs.4,500 less 1/3rd = Rs.3,000 p.m.), the Claims Tribunal has applied multiplier of 17 by considering age 24/25 which is on higher side and multiplier of 15 ought to have been applied by Claims Tribunal and thus, according to him award made by Claims Tribunal is on higher side. He has relied upon decision of Apex Court in the case of Oriental Insurance Co. Ltd. v. Meena Variyal , 2007 ACJ 1284 (SC) and except that, no other decision has been referred to and relied upon by him before this court.

5. I have considered submissions made by learned advocate Mr. Nanavati before this court. I have also perused impugned award in both claim petitions. Accident occurred on 30.12.2006 at any time prior to 10.00 hou