(Prayer:Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, to set-aside the order dated 02.11.2010 made in M.C.O.P.No.276 of 2008, on the file of the Motor Accidents Claims Tribunal, Karur (in the Court of the District Judge, Karur) in so far as it rejects the claim of the appellant herein to 50% of the share in the compensation.)

1. The appellant / third respondent has preferred the present appeal against the judgment and decree passed in M.C.O.P.No.276 of 2008, on the file of the Motor Accidents Claims Tribunal, District Judge, Karur.

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

The petitioners, who are the mother and sister of the (deceased) Mahadevan have filed the claim in M.C.O.P.No.276 of 2008, claiming compensation of a sum of Rs.10,00,000/- from the respondents for the death of the said Mahadevan in a motor vehicle accident. It was submitted that on 30.12.2007, at about 06.30 a.m., when the (deceased) Mahadevan was travelling in the first respondents tractor and when it was near Thirukaduthurai Thanthara Medu Thottam cart track, the (deceased) mahadevan fell down from the tractor and the tractor ran over him. At the time of accident, the deceased was aged 27 years and he was working as a painter at Maruthi Coach Builders Private Limited, Karur and also carried out agricultural operations and earning Rs.10,000/- per month. Hence, the petitioners have filed the claim against the respondents 1 to 3. The first and second respondents are the owner and insurer of the tractor bearing registration No.TN-47-F-4335 and the third respondent is the father of the deceased Mahadevan.

3. The first respondent, in his counter has denied the averments in the claim that the accident had taken place due to the rash and negligent driving of tractor by the first respondent. It was submitted that as the tyre of the tractor had entered in a pit, the tractor fell inside a pit and the deceased Mahadevan had slipped and fallen from the mudguard and the rear wheel of the tractor ran over him. The averments in the claim regarding income of the deceased was not admitted. It was submitted that as the first respondents tractor had been insured with the second respondent at the time of accident, only the second respondent is liable to pay compensation.

4. The second respondent, in his counter has submitted that the seating capacity of the tractor was only for one person and that the deceased had travelled on the mudguard, which is in violation of policy conditions. The manner of accident, as averred in the claim was also not admitted. It was submitted that the petitioners have to prove that the driver of the tractor had a valid driving licence at the time of accident. It was submitted that the petition has to be dismissed for non-joinder of the driver of the tractor as a necessary party in the claim. The averments in the claim regarding age, income and occupation of the deceased was also not admitted. It was submitted that the claim was excessive.

5. The third respondent in his counter did not dispute the age, income and occupation of the deceased and manner of accident. He stated that he is the father of the deceased Mahadevan and as such, he is entitled to claim compensation for the death of his son.

6. On the petitioners side, two witnesses were examined and ten documents were marked as Exs.P1 to P10, viz., Ex.P1-copy of F.I.R., Ex.P2-copy of postmortem certificate, Ex.P3-copy of Motor Vehicle Inspectors Report, Ex.P4-copy of rough sketch, Ex.P5-copy of charge sheet, Ex.P6-legal-heirship certificate, Ex.P7-xerox copy of ration card for the year 1998-2003, Ex.P8-xerox copy of ration card for the year 2005-2009, Ex.P9-School T.C. and Ex.P10-certified copy of judgment. On the respondents side, two witnesses were examined and one document, viz., copy of policy relating to vehicle No.TN-47-F-4335 was marked as Ex.R1.

7. The Motor Accidents Claims Tribunal had framed three issues for consideration in the case, viz.,

"(i) Whether the accident took place due to the rash and negligent driving by the driver of the first respondents tractor

(ii) Whether the insurance company is liable to pay compensation to the petitioners

(iii) Whether the petitioners are entitled to get compensation"

8. P.W.2, Vivekanandan had adduced evidence that on 30.12.2007, at about 5 p.m., when he was walking from south to north, after finishing his agricultural work in his field, he had seen the first respondents tractor bearing registration No.TN-47-F-4335, driven rashly and negligently by its driver, as a result of which, the left front wheel of the tractor slipped into a pit and the person who travelled in the mudguard of the tractor fell down and the rear tyre of the tractor ran over him and he died on the spot.

9. R.W.1, Ramasubramanian has adduced evidence that as per the policy conditions, coverage is available only for the driver of the tractor and in support of his evidence, he had marked Ex.R1. He deposed that the deceased Mahadevan also carried out agricultural coolie work besides doing painting work at Maruthi Coach Body Building Company. The Tribunal observed on scrutiny of Ex.R1 that the schedule of payment would show that for own damage and for liability, separate amount has been collected and for liability, the Insurance Company is liable to pay compensation to the owner and driver or to any other employee. It is also seen that apart from the driver, the Insurance Company is liable to pay compensation to one of the employee for whom coverage was extended. Hence, the Tribunal, on scrutiny of oral and documentary evidence held that the second respondent is liable to pay compensation to the petitioners.

10. P.W.1, Chandramathi had adduced evidence that she is the mother of the deceased and that the second petitioner is the sister of the deceased and the third respondent is the father of the deceased and that the deceased was unmarried. She deposed that the third respondent is living separately and that he was not depending upon the income of the deceased. She deposed that the second petitioner is now married and living separately.

11. Hence, the Tribunal, on considering the oral and documentary evidence held that the first and second petitioners are alone entitled to get compensation. On scrutiny of Ex.P2, it is seen that the deceased was aged 26 years at the time of accident. As no documentary evidence had been let in to prove the income of the deceased, the Tribunal held the notional income of the deceased as Rs.4,000/- per month. The Tribunal, on adopting a multiplier of 14, as was relevant to the age of the mother of deceased (45 years) and on deducting half of his income for his personal expenses awarded a sum of Rs.3,36,000/- as compensation to the petitioners under the head of loss of earning (Rs.4,000/- x 1/2 x 12 x 14); Rs.10,000/- was awarded to the first petitioner under the head of loss of love and affection and Rs.5,000/- was awarded to the second petitioner under the head of loss of love and affection; Rs.10,000/- was awarded for funeral expenses. In total, the Tribunal awarded a sum of Rs.3,56,000/- as compensation to the petitioners and directed the second respondent to deposit the said sum together with interest at the rate of 7.5% per annum from the date of filing the claim petition till date of payment of compensation, with costs, within three months from the date of its order. The Tribunal, on observing that the third respondent is living separately held that the third respondent is not entitled to claim compensation.

12. Aggrieved by the award passed by the Tribunal, the third respondent / Veluchamy has preferred the present appeal.

13. The learned counsel for the appellant has contended in his appeal that the Tribunal ought to have held that the appellant herein as the father of the deceased Mahadevan is entitled to a share in the compensation awarded in the M.C.O.P. It was contended that the Tribunal ought to have seen that the appellant was depending on his son for purchase of medicines and treatment and ought to have seen that the deceased Mahadevan was regularly paying for the appellants maintenance for his livelihood. It was contended that the Tribunal ought to have seen the fact that the first petitioner and the third respondent were living separately is irrelevant consideration for the purpose of determining the issue of dependency, since the deceased was a major at the time of accident. It was also contended that the Tribunal ought to have seen that Jyothimani had already been given in marriage and therefore, she was not entitled to a share in the compensation. It was contended that the Tribunal ought to have seen that a person can live separately and yet be dependant on others. Hence, it was prayed to set-aside the order passed by the Tribunal, in so far as it rejects the claim of the appellant herein to 50% of the share in the compensation.

14. The learned counsel for the respondents 1 and 2 has submitted that there is no relationship between the deceased son and his father Veluchamy, the appellant herein. Further, he had never taken any care of the deceased right from childhood and that immediately after the birth of the deceased, the appellant herein had deserted them and living separately. as such, the appellant is not entitled to get compensation for the death of the deceased Mahadevan.

15. The highly competent counsel for the United India Insurance Company has submitted that the second claimant is the married sister of the deceased and she is not dependant on the income of the deceased. Further, the deceased was sitting on the mudguard of the tractor and while the tractor was proceeding, the deceased had lost his balance and fallen down and succumbed to his injuries. Therefore, the negligence rests squarely on the side of the deceased, but the Tribunal had erroneously fastened the negligence on the driver of the tractor and fixed the liability on the Insurance Company, which is not appropriate in the instant case.

16. 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 awarded by the Tribunal is on the lower side, since the deceased was aged about 27 years and was involved in the agricultural operations. Further, the accident took place in the end of the year 2007. Hence, this Court is inclined to grant additional compensation of a sum of Rs.75,000/- with interest at the rate of 7.5% per annum from the date of filing the claim till date of payment of compensation, as it is found to be appropriate in the instant case. This Court is of the view that the deceased was born through wedlock of the appellant with the first claimant. In the claim petition, the first claimant i.e., mother of the deceased had indicated that she is the wife of Veluchamy. It is also evident that the name of Veluchamy would have been mentioned as father of the deceased in the postmortem report. Further, there is no specific findings by the Tribunal that the said Veluchamy has no right to receive any benefits pertaining to his deceased son, after his lifetime. Further, it is also seen that the relationship between the deceased and his biological father, viz., Veluchamy has not been questioned by the first claimant. Further, this Court is of the view that the said Veluchamy has not been disqualified, by any Court findings, from receiving any monetary benefits through his deceased son, Mahadevan. This Court is of the view that from the evidence of the first claimant, it has been mentioned the appellant herein, viz., Veluchamy had not been a dutiful father to the deceased Mahadevan. However, this Court on holding that the appellant is the rightful father of the deceased and on observing that the relationship between the deceased Mahadevan and the appellant Veluchamy exists as son and biological father, holds the appellants claim as valid. Further, as per the Hindu Succession Act, the appellant / father has been classified as Class-I legal-heir. Hence, this Court awards the additional compensation of Rs.75,000/- with interest at the rate of 7.5% per annum, from the date of filing the petition, till date of payment of compensation, to the appellant herein, viz., Veluchami, as it is found to be appropriate in the circumstances of the case. This Court directs the United India Insurance Company, the fourth respondent herein to deposit the additional compensation amount, as ordered by this Court, as well as initial compensation amount, as per the Tribunals findings (if not deposited already), into the credit of M.C.O.P.No.276 of 2008, on the file of the Motor Accidents Claims Tribunal, District Judge, Karur, after filing a Memo along with a copy of this order. For clarity, this Court observes that the first and second claimants are entitled to receive the initial compensation of a sum of Rs.3,56,000/- with accrued interest thereon as per the ratio fixed by the Tribunal. The appellant herein, viz., Veluchamy is entitled to receive a sum of Rs.75,000/- with interest as per this Courts order, after filing a separate Memo.

17. In the result, the above appeal is partly allowed with the above modifications. Consequently, the order and decree passed in M.C.O.P.No.276 of 2008, on the file of the Motor Accidents Claims Tribunal, District Judge, Karur, dated 02.11.2010, is modified. There is no order as to costs. Consequently, connected miscellaneous petition is closed.