(Prayer : Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 to set aside the award of the Motor Accident Claims Tribunal cum Special District Judge, Tiruchirapalli made in MCOP No.1285 of 2015 dated 28.01.2020 and allow the appeal.)

P. Dhanabal, J.

1. This Civil Miscellaneous Appeal has been filed as against the award dated 28.01.2020, passed in M.C.O.P.No.1285 of 2015 by the Motor Accident Claims Tribunal cum Special District Judge, Tiruchirapalli.

2. The appellant is the second respondent in the claim petition and the respondents 1 to 4 are the claimants who filed a petition for compensation for a sum of Rs.2 Crores for the death of one Rengarajan. The Tribunal awarded a sum of Rs.84,94,334/- as compensation. Aggrieved by the said award, the second respondent/Insurance Company has preferred this appeal.

3. Before the Tribunal, the respondents 1 to 4 have filed a claim petition alleging that the deceased Rengarajan was working as Senior Accounts Officer in BHEL, Trichy and earning a sum of Rs.1,00,000/- and other income totalling a sum of Rs.1,30,000/-. While so, on 12.06.2015, in the midnight at about 00.15 hrs, while the deceased was riding his two wheeler bearing Registration No.TN-45-BD-2001 near Trichy- Pudukkottai main road near Trichy Airport outside gate opposite towards northern direction, at that time, a TATA 407 bearing Registration No.TN-55-L-8167 belonging to the first respondent and insured with the second respondent came from the opposite direction dashed against the rider of the two wheeler and thereby, the deceased sustained severe injuries and died on 23.06.2015. The deceased was aged about 58 years and incurred a sum of Rs.4 lakhs towards medical expenses. The accident took place due to the negligence on the part of the driver of the first respondent. A criminal case was also registered as against the driver of the first respondent in Crime No.166 of 2015 for the offences under Sections 279, 337 and 304(A) of IPC. The first petitioner is the wife and the petitioners 2 and 3 are the daughters and the fourth petitioner is the mother of the deceased. Therefore, they have filed a claim petition seeking compensation of Rs.2 Crores as against the second respondent.

4. The second respondent filed counter denying the averments made in the petition. The accident had not happened as alleged in the petition. The first respondent driver is no way responsible for the accident and the accident took place due to negligence on the part of the rider of the two wheeler. The second respondent denied the manner of accident, age, income of the deceased and the petitioners are also put to strict proof of the income of the dependency of the deceased and therefore, the petition is liable to be dismissed.

5. Based on the above said pleadings, the Tribunal framed the following points for determination:

                     a) Whether the accident took place due to rash and negligent driving of the driver of the first respondent TATA 407 van bearing Reg.No.TN-55-L-8167?

                     b) Whether the petition is bad for non-joinder of necessary parties?

6. Before the Tribunal, on the side of the petitioners, P.W.1 to P.W. 3 were examined and exhibits Ex.P 1 to P13 were marked. On the side of the respondents, two witnesses R.W.1 and R.W.2 were examined and three documents Ex.R1 to R3 were marked.

7. After careful analysis of the evidence adduced on both sides, the Tribunal allowed the petition in part and awarded a sum of Rs.84,94,334/- with interest @ 7.5% per annum by directing the second respondent insurer of the vehicle to deposit the amount within a period of two months. Aggrieved by the said award the present appeal has been filed.

8. For the sake of convenience and brevity, the parties hereinafter will be referred to as per their status/ ranking in the trial court.

9. The learned counsel appearing for the appellant would submit that the claimants are respondents 1 to 4 herein and they have filed a petition for compensation seeking compensation of Rs.2 Crores and the accident had happened due to the negligence on the part of the deceased and the first respondent driver is no way responsible for the accident and the deceased also contributed negligence, but the Tribunal has failed to appreciate the evidence of R.W.1. The deceased was riding the two wheeler from Trichy Airport and crossed from north to south in Trichy to Pudukkottai main road and at that time, he dashed against the first respondent vehicle. P.W.3 is not an eyewitness to the occurrence and he also admitted that the deceased was coming out from Airport and while crossing the road, he met with the accident. The Tribunal failed to consider Ex.P.3/Rough sketch. As per the rough sketch, at the time of crossing the road, the accident had happened and therefore, the rider of the two wheeler is responsible for the accident however without taking into consideration the negligence on the part of the deceased the tribunal awarded compensation. The Tribunal also awarded a sum of Rs.1,00,000/- towards love and affection in addition to the consortium awarded for a sum of Rs.40,000/-. Therefore, the award passed by the Tribunal is liable to be set aside and the appeal is to be allowed.

10. The learned counsel appearing for the respondents 1 to 4 would submit that the accident had occurred due to the negligence on the part of the driver of the offending vehicle i.e., Appellant/1st respondent. PW.3 who is the eyewitness in the occurrence had categorically deposed about the negligence on the part of the first respondent van driver. In fact, the deceased came out from the exit gate of the Airport and thereafter, he crossed the main road and the accident had taken place at the extreme western end of the road. The petitioner side evidences would show that the first respondent who came from south to north dashed against the rear side of the two wheeler and the front portion of the vehicle van of 1st respondent got damaged and the motor vehicle inspection report also reveals the same. Therefore, the petitioner has proved the negligence on the part of the driver of the first respondent. As per the evidence of RW.1, the deceased dashed against the back side of the vehicle but the Motor Vehicle inspection report shows that the first respondent vehicle was damaged on its front Bumper. Therefore, the evidence of R.W.1 is not trustworthy and in order to escape from the liability, he gave false evidence and thereby, the Tribunal after elaborate discussion fixed the liability on the side of the first respondent driver. So far as quantum is concerned, the Tribunal awarded fair compensation and the Tribunal also awarded a sum of Rs. 1 lakh under the head of loss of love and affection and therefore, the award passed by the Tribunal is fair and just compensation and thus, the appeal is liable to be dismissed.

11. Heard both sides and perused the materials available on record.

12. In this case, there is no dispute in respect of the accident and the involvement of the vehicles. According to the claimants, the accident occurred due to the negligence on the part of the driver of the first respondent. According to the second respondent, the accident had taken place due to negligence on the part of the rider of the two wheeler/deceased. In order to prove the case of the claimants, the petitioners have examined P.W.1 to P.W.3 and marked exhibits Exs.P 1 to P13. On the side of the respondents, two witnesses R.W.1 and R.W.2 were examined and three documents Ex.R1 to R3 were marked. The First Information Report was also registered as against the driver of the first respondent vehicle for his negligent act. P.W.3 who is eye witness has categorically deposed about the manner of accident and rough sketch also shows that the deceased after crossing road while passing towards north-south at the extreme end of the western side of the road, the accident had happened and the front left side of the vehicle was damaged. RW.1 also admitted the accident but according to him, the deceased only dashed against the rear side of the vehicle, but the rough sketch and the motor vehicle report clearly shows that the front side portion of the first respondent vehicle was damaged and thereby, the evidence of RW.1 is not trustworthy and the evidence of P.W.3 and Ex.P1 and P3 proved the negligence on the driver of the first respondent. The Tribunal also after analysis, fixed the negligence on the driver of the first respondent. Therefore, the findings of the Tribunal in fixing the liability on the 1st respondent does not suffer infirmity and sustainable.

13. So far as quantum is concerned, the deceased was employed in BHEL, Tirchy as a Senior Accounts Officer and his salary certificate was marked as Ex.,P.12. In order to prove the same, they have examined PW.2, Grade-I Assistant in Welfare Section of Human Resource Management Department of BHEL, Trichy. According to his evidence and Ex.P.11, the deceased's monthly salary was Rs.97,791.20. The age of the deceased was 58 years on the date of accident and therefore, 15% future prospectus has to be included in the salary of the deceased and thereby, the salary of the deceased would come to Rs.1,12,460/-, thereby the annual income of the deceased would come to Rs.13,49,520/-. Considering the income of the deceased, approximately 10% of the income (Rs.1,34,952/-) has to be deducted for Income tax and after deducting the same, the annual income would come to Rs.12,14,568/-. Considering the dependency of the deceased, 1/4th amount (Rs. 3,03,642/-) has to be deducted for his travel expenses and thereby, the annual income of the deceased would come to Rs.9,10,926/-.

14. Considering the age of the deceased, multiplier of 9 is adopted and thereby, the award amount comes to Rs.81,98,334/- (Rs.9,10,926/- X 9). Further, each of the petitioners are entitled to Rs.40,000/- towards consortium, and they are entitled to Rs.15,000/- towards loss of estate and also Rs.15,000/- towards funeral expenses. Further, the Tribunal also correctly arrived at compensation by adopting correct multiplier method and therefore the said head need not be interfered with. So far as consortium is concerned, the Tribunal only awarded consortium to the first petitioner but the second and third petitioners are also entitled for consortium and thereby this Court awards consortium to the tune of Rs.40,000/- each to the petitioners.

15. The Tribunal has awarded a sum of Rs. 1 lakh towards love and affection. As per the judgment of the Hon’ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others reported in 2017 ACJ 2700, the petitioners are entitled for funeral expenses, consortium and loss of estate and thereby awarding separate amount for love and affection is unsustainable and the same is liable to be set aside. Further, the Tribunal also awarded transport expenses and there is no specific evidence for the transport expenses. Already the Tribunal awarded under the head of funeral expenses and thereby once again, compensation under the head of transport expenses need not be awarded and thereby the award under the head of travel expanses is also liable to be set aside. The Tribunal also awarded Rs. 15,000/- towards loss of estate and the same need not be interfered with. Accordingly the award passed by the Tribunal is modified to the effect that the petitioners 1 to 4 are entitled to a sum of Rs.83,88,334/- and rounded off to Rs.84,00,000/-. The total compensation awarded by this Court is as follows: