N.M. Kasliwal, J.

1. All these appeals are disposed of by one single judgment as they arise out of the same accident and common judgment given by Motor Accidents Claims Tribunal, Jaipur dated December 30, 1987.

2. Briefly stated the facts are that on October 10, 1981, an accident took place between truck No. RSF 327 and a car No. RSM 4513 near village Palu Khurd bus stand on Jaipur-Ajmer National Highway. In the accident Jagdish Narain Pandey, who was driving the car as well as Ram Bharose and Nathu Lal, who were accompanying Jagdish Narain in the car died. The truck was insured by the New India Assurance Co. Ltd. The claimants in respect of Jagdish Narain Pandey filed Claim Petition No. 76 of 1982 and prayed for a compensation of Rs. 8,80,000/ -. In respect of Ram Bharose the claimants filed Claim Petition No. 77 of 1982 and claimed compensation of Rs. 4,15,800/ -. In case of Nathu Lal the claimants filed Claim Petition No. 78 of 1982 and prayed for compensation of Rs. 4,41,000/ -. According to the claimants the accident took place on account of rash and negligent driving of the truck by its driver Succha Singh. The Tribunal in the Claim Petition No. 76 of 1982 found that deceased Jagdish Narain Pandey was doing business in the name of Pandey Murti Museum. According to the returns of income this firm was having the annual income of Rs. 34,740/ -. According to the statement of Lalita Devi, Jagdish Narain used to pay Rs. 2,500/ - p.m. to her. Out of the aforesaid amount she used to spend Rs. 200/ - p.m. on guests and the remaining Rs. 2,300/ - p.m. remained with her for meeting the household expenses. The Tribunal after adjusting one-third of the aforesaid amount being spent by Jagdish Narain on himself calculated Rs. 1,500/ - as loss to the family. Taking the age of the deceased as 41 years, the Tribunal took a multiple of 17 years for calculating the compensation and according to this held the claimants to be entitled for an amount of 1500 X 12 X 17 = Rs. 3,06,000/ -. As regards the loss of consortium an amount of Rs. 5,000/ -and an amount of Rs. 2,000/ - each for loss of love and affection to the claimant Nos. 3 to 7 amounting to Rs. 10,000/ - was also awarded. The Tribunal also awarded Rs. 14,000/ - for the damage of the car in the above accident and thus in all awarded a compensation of Rs. 3,35,000/ -.

3. In the Claim Petition No. 77 of 1982, the Tribunal found that deceased Ram Bharose was employed as 'Munim' with Jagdish Narain Pandey and was getting a salary of Rs. 700/ - p.m. Out of this amount one-third was adjusted as being spent on Ram Bharose himself and the loss to the family was calculated as Rs. 470/ - p.m. Taking the age of deceased as 28 years a multiple of 30 years was taken into consideration and an amount of 470 X 12 X 30 = Rs. 1,69,200/ - was awarded by way of compensation. Rs. 5,000/ - were allowed by way of loss of consortium to Sushila and Rs. 2,000/ - each to the four children for the loss of love and affection. The Tribunal thus in all awarded a compensation of Rs. 1,82,000/ - to the claimants.

4. In Claim Petition No. 78 of 1982, the Tribunal found that deceased Nathu Lal was also employed with Jagdish Narain Pandey at the rate of Rs. 700/ - p.m., and after adjusting one-third for the expenses of Nathu Lal himself, calculated Rs. 470/ - p.m. as loss to the family. The age of Nathu Lal was taken as 30 years and taking the multiple of 28 years an amount of 470 X 12 X 28 = Rs. 1,57,920/ -was awarded by way of compensation. Four children were allowed compensation at the rate of Rs. 2,000/ - each for the loss of love and affection and Rs. 5,000/ - to Chandra Kala w/o Nathu Lal for the loss of consortium. The Tribunal thus in all awarded a sum of Rs. 1,70,920/ - as compensation.

5. Three appeals have been filed by the claimants for enhancement of the compensation while 3 other appeals have been filed by the driver, owner and the New India Assurance Co. Ltd., who was the insurer of truck No. RSF 327.

6. I have heard Mr. G.C. Mathur for the claimants and Mr. Hari Mohan Bhargava on behalf of the driver, owner and the insurer.

7. I may first deal with the preliminary objection raised by Mr. Mathur that appeal Nos. 80, 81 and 82 of 1988 filed by the driver, owner and the insurer are not maintainable. It was argued that so far as driver and owner are concerned, they do not fall within the meaning of aggrieved persons inasmuch as the liability to pay the compensation has been fixed on the insurance company. As regards the insurance company it is submitted that it can only raise such grounds which are permissible under Section 96(2) of the Motor Vehicles Act, 1939 (hereinafter called 'the Act'). It is submitted that the insurance company has no right to contest the claim petition nor to challenge the award in appeal except on the grounds available under the statute. Mr. Mathur in support of his contention placed reliance on the following authorities:

(1) Kantilal and Bros. v. Ramarani Debi , 1980 ACJ 501 (Calcutta).

(2) United India Fire and Genl. Ins. Co. Ltd. v. Lakshmi Shori Ganjoo , 1982 ACJ 470 (J and K).

(3) United India Fire and General Ins. Co. Ltd. v. Gulab Chandra Gupta , 1985 ACJ 245 (Allahabad).

(4) P.K. Krishnan Nair v. K. Karukaran Nair , 1986 ACJ 41 (Kerala).

(5) National Insurance Co. Ltd. Jaipur v. Smt. Tulsi Devi , 1988 ACJ 962 (Rajasthan).

8. On the other hand, it was submitted by Mr. Bhargava that if a right is reserved in the policy then insurance company is entitled to contest the claim petition and to file appeal also on all the grounds which are available to the insured. It was also submitted by Mr. Bhargava that even if the liability was fixed jointly and severally on the insurer, so far as the driver and owner of the vehicle are concerned, they certainly come within the purview of aggrieved persons and are thus entitled to challenge the award given against them. Mr. Bhargava in support of his contention placed reliance on the following authorities:

(1) Fateh Narain Hajela v. Rawal Singh , 1978 ACJ 345 (MP).

(2) United India Fired Genl Ins. Co. Ltd. v. Ayisa , 1979 ACJ 526 (Madras).

(3) Vellayya Gounder v. N. Ramnathan , 1982 ACJ 251 (Karnataka).

9. Israni, J. in Tulsi Devi's case , 1988 ACJ 962 (Rajasthan), has already considered the above question in detail and held that the insurance company is permitted by the statute to raise only such defences which are permitted under the provisions of Section 96(2) of the Act and nothing more can be added to the same.

10. A Division Bench of the Allahabad High Court in Gulab Chandra Gupta's case , 1985 ACJ 245 (Allahabad), placed reliance on the decision of the Calcutta High Court in Kantilal and Bros.' case , 1980 ACJ 501 (Calcutta), as well as the decision of their Lordships of the Supreme Court in British India General Insurance Co. v. Itbar Singh 1958 65 ACJ 1 (SC). It was held that the nature of the grounds taken by the owner would be different from those taken by the insurer. Thus, it would not be open to the insurer to challenge the award on the same grounds as are open to the owner of the vehicle. There are two exceptions to this rule. Firstly, where the right to contest is reserved in the policy in favour of the insurer and second, where the person against whom the claim had been made, has failed to contest the claim, a right has been granted to the insurer under Section 110-C(2-A)(ii) of the Act to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made. It was thus held that a joint appeal by the insurer and the owner of the vehicle is not maintainable. It was further held that so far as the insurer is concerned, it can only take such defence in an action under Section 110-A of the Act as is available to it under Section 96(2) of the Act. The same view has been taken in the other cases cited by Mr. Mathur, learned Counsel for the claimants.

11. Now, as regards the cases cited by Mr. Bhargava in Fateh Narain Hajela's case , 1978 ACJ 345 (MP), the appeal was filed by the claimants for enhancement of the amount of compensation awarded by the Tribunal. A preliminary objection was raised that there can be no appeal against the quantum of compensation only. The above preliminary objection was decided against the Respondents and it was held that an appeal against the quantum of compensation is maintainable. The above case thus is entirely different and is of no assistance at all to the contention raised by Mr. Bhargava.

12. In Ayisa 's case , 1979 ACJ 526 (Madras), United India Fire and Genl. Ins. Co. Ltd. had filed the appeal and the following two contentions were urged:

(i) That as the driver of the car did not have a valid licence at the time of accident, the insurance company is not liable to meet the claim of compensation made in the above two cases; and

(ii) In any event, the compensation granted by the Tribunal is excessive.

13. As regards the second contention, it was held that in view of earlier decision in United India Fire and General Insurance Co. Ltd. v. Parvathy , 1979 ACJ 101 (Madras), the insurer was not entitled to question the quantum of compensation without bringing in the insured as co-Appellant. The High Court of Madras itself in Parvathy's case (supra) had already taken the view that defences open to an insurer are restricted to those specified in Section 96 of the Act. It was further observed that the mere fact that the insured has not filed an appeal does not mean that there is collusion between the insured and the claimants. Thus, the view taken by the Madras High Court also does not support the contention sought to be raised by Mr. Bhargava.

14. The Karnataka High Court in Vellayya Gounder's case , 1982 ACJ 251 (Karnataka), did not agree with the view taken by the Calcutta High Court in Kantilal and Bros' case , 1980 ACJ 501 (Calcutta). However, I do not agree with the above view and agree with the view of the Calcutta High Court as well as Allahabad, Jammu and Kashmir and the view already taken by Israni, J. of this Court.

15. Mr. Bhargava also placed reliance on Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmed , AIR 1976 SC 578 and contended that the expression 'aggrieved person' has been considered and following observations in this regard have been made by their Lordships of the Supreme Court in the above case:

In order to have the locus standi to invoke certiorari jurisdiction, the Petitioner should be an 'aggrieved person'. The expression 'aggrieved person' denotes an elastic, and, to an extent, an elusive concept. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the Petitioner's interest, and the nature and extent of the prejudice or injury suffered by him.

In the above case the question of aggrieved person was considered in the context of a person having the locus standi to invoke certiorari jurisdiction. Thus, the above case apart from being totally different, interpretation made to the expression 'aggrieved person' even does not help the insurance company in holding the owner as an aggrieved person under the Motor Vehicles Act.

16. As a result of the discussion made above the preliminary objection raised by Mr. Mathur prevails and the Appeal Nos. 80, 81 and 82 of 1988 filed by the driver, owner and insurer are held to be not maintainable.

17. Now, I shall examine the appeals filed by the claimants.

18. As regards Appeal Nos. 67 and 68 of 1988 the contention raised by the claimants is that the compensation on account of loss of consortium should be increased from Rs. 5,000/ - to Rs. 15,000/ -. Another contention is that the Tribunal wrongly calculated the span of life upto 58 years only and it ought to have been awarded upto the age of 65 years and as such the multiple should be increased for 7 years more.

19. In Tulsi Devi's case, , 1988 ACJ 962 (Rajasthan),/gran/, J. had awarded Rs. 15,000/ - on account of loss of consortium keeping in view the age of widow. In both the cases before Israni, J., the age of Shanti Devi (widow in one case) was 22 years and that of Tulsi Devi (widow in another case) was 34 years. In the present case, the age of Sushila w/o Ram Bharose is 23 years while that of Chandra Kala w/o Nathu Lal is 27 years. Thus, looking to the young age of these widows I am also of the view that both of them are entitled to compensation of Rs. 15,000/ - on account of loss of consortium. Now, so far as the span of life is concerned, Israni, J., has taken it as 60 years and I also agree with the same view. In view of these circumstances both the claimants in the above two cases are entitled to an increase of the multiple for two years. Thus, in the case of Appeal No. 67 of 1988 the compensation would be increased and calculated as 470x12x32 = Rs. 1,80,480/ - and also Rs. 15,000/ - instead of Rs. 5,000/ - on account of loss of consortium plus Rs. 8,000/ - already awarded to the children for loss of love and affection. Thus, the total amount of compensation would be Rs. 2,03,480/ -.

20. In Appeal No. 68 of 1988 the compensation would be increased and calculated as 470 x 12 x 30 = 1,69,200 and also Rs. 15,000/ - instead of Rs. 5,000/ - on account of loss of consortium plus Rs. 8,000/ - already awarded to the children for loss of love and affection. Thus, the total amount of compensation would be Rs. 1,92,200/ -.

21. As regards Appeal No. 204 of 1988, it was contended by Mr. Mathur that the Tribunal committed a mistake in treating the benefit of income to the family only at the rate of Rs. 1,500/ - p.m. It was submitted that the same should have been calculated as two-third of Rs. 2,500/ - p.m. and which comes to Rs. 1,666/ - p.m. It was also submitted that span of life should have been considered as 65 years and the amount on account of loss of consortium should have been awarded as Rs. 15,000/ -. On the other hand, Mr. Bhargava contended that Jagdish Narain Pandey deceased was running the business in the name of Pandey Murti Museum and the income of such concern was not on account of the personal skill of the deceased. It is submitted that even after the death of Jagdish Narain Pandey the business of Pandey Murti Museum is run by his son and according to the returns of income filed after the death of Jagdish Narain Pandey the income from Pandey Murti Museum has increased. Mr. Bhargava in support of his contention placed reliance on Ishwari Devi v. Union of India , 1968 ACJ 141 (Delhi) and Mewa Devi v. State of Orissa (1987) 1 ACC 67.

22. The Tribunal had considered the loss of dependency at the rate of Rs. 1,500/ - p.m. taking in view that Rs. 200/ - p.m. were spent on the guests and thereafter one-third of the income was reduced as having been spent on Jagdish Narain Pandey deceased himself and the balance two-third was taken at the rate of Rs. 1,500/ - p.m. I, therefore, see no ground to increase this amount to Rs. 1,666/ - p.m. as contended by Mr. Mathur. Apart from no mistake committed by the Tribunal in taking the loss of dependency at the rate of Rs. 1,500/ - p.m. I see force in the contention of Mr. Bhargava that this amount is not liable to be increased as the income from the concern Pandey Murti Museum has not reduced after the death of Jagdish Narain Pandey. Now, so far as the span of life is concerned, as already held in the case of Claim Petition Nos. 67 and 68 of 1988, the span of life has to be considered as 60 years. The amount on account of loss of consortium shall also be increased to Rs. 15,000/ - instead of Rs. 5,000/ -. Thus, the amount of compensation would be calculated 1500 x 12 x 19 = Rs. 3,42,000/ -. The amount on account of loss of consortium shall also be increased from Rs. 5,000/ - to Rs. 15,000/ -. Thus, adding Rs. 10,000/ - for children and Rs. 14,000/ - for car, the total amount of compensation would be Rs. 3,81,000/ -.

23. In the result, Appeal Nos. 80, 81 and 82 of 1988 are dismissed and the Appeal Nos. 67, 68 and 204 of 1988 are allowed in part in the manner indicated above.