(Prayer: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree dated 07.11.2006, made in M.C.O.P.No.34 of 2005, on the file of the Motor Accident Claims Tribunal, Sub Court, Sankagiri.)

1. The appellants / claimants have preferred the present appeal against the judgment and decree dated 07.11.2006, made in M.C.O.P.No.34 of 2005, on the file of the Motor Accident Claims Tribunal, Sub Court, Sankagiri.

2. The short facts of the case are as follows:-

The petitioners, who are the wife, minor daughter and minor son and mother of the deceased Thirumalai had filed a claim petition in M.C.O.P.No.34 of 2005, on the file of the Motor Accident Claims Tribunal, Sub Court, Sankagiri, claiming a sum of Rs.20,06,000/- as compensation from the respondents for the death of the said Thirumalai in a motor vehicle accident.

3. It was submitted that on 29.01.2005, at about 05.15 a.m., when the deceased Thirumalai was proceeding on his cycle, on Sankagiri-Erode Main Road, near Balaji I.T.I., Unchakorai, the first respondents lorry bearing registration No.TN38 V5781, coming on the same road and driven at a high speed and in a rash and negligent manner, had dashed against the deceased and caused the accident. As a result, the deceased Thirumalai had sustained grievous injuries and died on the spot. At the time of the accident, the deceased was aged about 45 years and was working at India Cements, Sankagiri and earning a sum of Rs.9,000/- per month. Hence, the petitioners had filed the claim petition.

4. The second respondent Insurance Company, in their counter statement, had stated that the petitioners should prove the age, income and occupation of the deceased and also prove that they are the legal heirs of the deceased through documentary evidence. It was also submitted that the petitioners should prove that the driver of the first respondents lorry had a valid licence and that the lorry was covered under a valid policy of insurance with the second respondent, through documentary evidence. It was also submitted that the accident had not been caused due to rash and negligent driving of the driver of the first respondents lorry as alleged in the claim petition. It was also submitted that the claim was excessive.

5. On considering the averments of both sides, the Tribunal had framed two issues namely:

i. Whether the accident had occurred due to the rash and negligent driving of the first respondents driver and

ii. If so, what is the quantum of compensation, which the petitioners are entitled to get

6. On the petitioners side three witnesses were examined as P.Ws.1 to 3 and nine documents were marked as Exs.P1 to P9 namely FIR, charge sheet, rough sketch, M.V.Is report, postmortem report, salary slip of the deceased, family card, death certificate and legal heir certificate. On the respondents side no witness was examined and no document was marked.

7. P.W.1 wife of the deceased had adduced evidence, which is corroborative of the statements of the claim petition regarding manner of accident and in support of her evidence, she had marked Exs.P1 to P9.

8. P.W.2 Ansar, eye-witness of the accident, had adduced evidence that on 29.01.2005, at about 05.15 a.m., when he and the deceased Thirumalai were proceeding separately on their cycles, towards Sankagiri and when they were proceeding near Unchakorai, the first respondents van coming from Sankagiri and driven at a high speed and in a rash and negligent manner had dashed against the deceased Thirumalai and that the deceased Thirumalai was dragged along with his cycle for some distance before the van was stopped. He deposed further that the deceased had sustained head injuries and died on the spot. Further, he had deposed that he had informed the family members of the deceased regarding the accident and also given the complaint at the Sankagiri Police Station.

9. The Tribunal had observed that no oral or documentary evidence had been let in by the respondents to rebut the claim of the petitioners regarding manner of accident. On scrutiny of Exs.P1 and P2, it is seen that the Police after investigation had filed the charge sheet against the driver of the first respondents vehicle. On scrutiny of Ex.P4, it is seen that the accident had not been caused due to any mechanism failure of the vehicle. Hence, the Tribunal on scrutiny of Exs.P1 to P5, held that the accident had been caused by the rash and negligent driving by the driver of the first respondents vehicle.

10. P.W.1 had adduced evidence that at the time of accident, her husband was aged about 45 years and that he was working at India Cements, Sankagiri and earning Rs.9,000/- per month. She had deposed that if her husband had been alive, he would have got promotion and increased salary and that due to his death, she and her minor children and mother of the deceased have been put into hardship.

11. P.W.3 Mr.Thiruvadivel had adduced evidence that the deceased was working as a Compressor Operator in their firm and that prior to his death, he was earning Rs.8,005/- per month and in support of his evidence he had marked Ex.P6 salary certificate for the month of December 2005. Further, he had deposed that the deceased used to get a bonus of Rs.6,000/- per month and Rs.4,800/- for leave travel allowance.

12. The Tribunal, on scrutiny of Ex.P6, had observed that the deceased was earning a sum of Rs.4,500/- per month. The Tribunal on adopting a multiplier of 13, as was relevant to the age of the deceased (45 years as per Ex.P5 postmortem report), awarded a sum of Rs.4,68,000/- as compensation to the petitioners under the head of loss of income (4500 X 2/3 X 13), Rs.2,000/- was awarded for transport expenses, Rs.2,000/- was awarded for funeral expenses and Rs.10,000/- was awarded to each of the petitioners 1 to 4 under the head of love and affection, Rs.5,000/- was awarded to the first petitioner under the head of consortium. In total, the Tribunal had awarded a sum of Rs.4,87,000/- as compensation to the petitioners and directed the respondents to deposit the said amount, jointly or severally, together with interest at the rate of 7.5% per annum, from the date of filing the claim petition till the date of payment of compensation with costs, within a period of one month from the date of its order.

13. Not being satisfied by the Award passed by the Tribunal, the petitioners have preferred the present civil miscellaneous appeal.

14. The learned counsel appearing for the appellants has contended in the appeal that the Tribunal had failed to consider that the deceased was working as a Compressor Operator at Sankagiri India Cement Company, which is a well known and reputed Cement Company in Tamil Nadu and drawing a monthly salary of Rs.8,000/- per month as per the evidence of P.W.3 and Ex.P6 salary slip and as such the Tribunal had erred in taking the income of the deceased at Rs.4,500/- per month without any basis.

15. Further, it is contended that the Tribunal had failed to take into consideration the future promotion prospects of the deceased, since he would have been in service for another 13 years, if he had been alive. It is also contended that the multiplier of 13 adopted by the Tribunal was erroneous. Hence, it is prayed for grant of additional compensation of a sum of Rs.4,00,000/-.

16. The highly competent counsel for the Insurance Company has submitted that the deceased had invited the said accident, since he had driven his cycle in a negligent manner. Further, the Tribunal had granted adequate compensation under the relevant heads. Therefore, the above appeal for additional compensation is not maintainable.

17. On verifying the factual position of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the Tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding negligence and liability. However, the quantum of compensation is on the lower side. The claimants had produced salary certificate of the deceased for the month of December, 2005, wherein it had been mentioned that the deceased was getting Rs.8,500/- per month. Therefore, this Court takes the nett income of the deceased as Rs.7,500/- per month and reassesses the compensation as follows:

i. Rs.7,80,000/- is awarded under the head of loss of earning (7500 X 1/3 X 2 X 12 X 13),

ii. Rs.10,000/- is awarded for the loss of consortium to the first petitioner,

iii. Rs.10,000/- is awarded to each of the petitioners 2 and 3 under the head of loss of love and affection,

iv. Rs.10,000/- is awarded for funeral expenses, and

v. Rs.10,000/- is awarded for transport expenses.

In total, this Court awards a sum of Rs.8,30,000/- as compensation, as it is found to be appropriate to the instant case. After deducting the initial compensation amount of Rs.4,87,000/- fixed by the Tribunal, this Court grants a sum of Rs.3,43,000/- as additional compensation and this amount will carry interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation.

18. This Court directs the second respondent Insurance Company to comply with this Courts Order, within a period of four weeks from the date of receipt of a copy of this order, by way of depositing the compensation amount, to the credit of M.C.O.P.No.34 of 2005, on the file of the Motor Accident Claims Tribunal, Sub Court, Sankagiri.

19. After such a deposit having been made, it is open to the claimants to withdraw their apportioned compensation share amount with accrued interest thereon equally, lying in the credit of M.C.O.P.No.34 of 2005, on the file of the Motor Accident Claims Tribunal, Sub Court, Sankagiri, after filing a memo along with a copy of this Order

20. In the result, this civil miscellaneous appeal is partly allowed and the Judgment and decree dated 07.11.2006, made in M.C.O.P.No.34 of 2005, on the file of the Motor Accident Claims Tribunal, Sub Court, Sankagiri, is modified. Consequently, connected miscellaneous petition is closed. There is no order as to costs.