(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, against the Decree and Judgment dated 16.07.2019 made in MCOP No.1982 of 2017, on the file of the Motor Accident Claims Tribunal, I Additional District Court, Tiruppur.)
1. This appeal has been filed by the Insurance Company against the Award passed by the Motor Accident Claims Tribunal (I Additional District Court), Tiruppur in MCOP No.1982 of 2017 dated 16.07.2019.
2. The 1st claimant is the wife and the 2nd claimant is the daughter of the deceased Palaniswamy. The case of the claimants is that, on 02.06.2017, the deceased was riding a bicycle at Tiruppur-Mangalam Road and at about 11 a.m., near HP Petrol Bunk, the offending vehicle which was a car was driven in a rash and negligent manner and it dashed on the bicycle. As a result of which, the deceased was thrown away from the bicycle and he sustained fatal injuries and he succumbed to the injuries on 10.06.2017. An FIR came to be registered in Crime No.229 of 2017 against the driver of the offending vehicle. It is under these circumstances, the claim petition came to be filed before the Tribunal.
3. The appellant Insurance Company filed a counter and took a stand that the driver of the offending vehicle did not possess a valid driving licence. The appellant Insurance Company also took a stand that the 2nd claimant, who is the daughter was not a dependent in this case. Under such circumstances, the Insurance Company is not liable to pay the compensation.
4. The Tribunal on considering the facts and circumstances of the case and on appreciation of oral and documentary evidence, came to a conclusion that the accident had taken place only due to the rash and negligent driving on the part of the driver of the offending vehicle.
5. The Tribunal having rendered the above finding came to a conclusion that the Insurance Company has not proved that the driver of the offending vehicle did not possess a valid driving licence and therefore, they alone are liable to pay the compensation amount.
6. Having rendered the above finding, the Tribunal fixed the total compensation at Rs.17,37,196/- under the various heads as follows:
| Compensation awarded under the head | Amount (in Rs.) |
| Loss of Income | 15,84,036 |
| Medical Bills | 53,160 |
| Loss of Consortium | 80,000 |
| Funeral Expenses | 15,000 |
| Transport Expenses | 5,000 |
| Total | 17,37,196 |
| 10% contributory negligence | 1,73,720 |
| Total | 15,63,476 |
8. Aggrieved by the same, the present appeal has been filed before this Court.
9. Heard the learned counsel for the appellant and the learned counsel appearing on behalf of the 1 and 2nd respondents.
10. The first grievance expressed on the side of the appellant Insurance Company is regarding the failure on the part of the Tribunal in not applying the principle of pay and recover.
11. It is seen from the records that the owner of the offending vehicle did not contest the case and remained ex-parte. The Insurance Company took efforts to examine the Regional Transport Officer as RW1. He has specifically stated that the driver of the offending vehicle in spite of being called upon to produce the licence did not produce the driving license. He has also further submitted that driver of the offending vehicle did not possess a valid driving license. The same has also been noted in the MVI Report which was marked as EX.P3.
12. In spite of the above evidence available on record, the Tribunal went wrong in fastening the entire liability on the Insurance Company without ordering for pay and recover. Such a finding is perverse and the same is liable to be set aside by this Court. This is a case where the driver of the offending vehicle did not possess a valid driving licence and the same has been proved by the Insurance Company and therefore, the principle of pay and recover has to be applied in this case.
13. The next issue pertains to the quantum of compensation fixed by the Tribunal. The Tribunal while fixing the monthly income relied upon the Salary Certificate that was marked as EX.P13 through PW3. This Court carefully went through the evidence of PW3 and also the Salary Certificate that was marked as EX.P13. Except for the Salary Certificate which curiously contains a TIN Number in the year 2017 when GST had just come into force on 01.07.2017, the Tribunal ought to have called for registers/other records in order to establish that the deceased was earning a sum of Rs.20,000/- per month. The Tribunal merely acted upon the Salary Certificate and fixed the monthly income at Rs.20,000/-. The same cannot be sustained. This Court is inclined to fix the notional monthly income at Rs.17,000/- per month. Consequently, the compensation under the head of loss of income/dependency is calculated as follows: Rs.18,700/- (Rs.17,000/- + Rs.1,700(10%)) x 12 x 9 x 1/3 = Rs.13,46,400/-
14. The Tribunal has not fixed any compensation under the head of loss of estate and this Court is inclined to fix Rs.15,000/- under that head.
15. The Tribunal had deducted 10% from the total compensation from the total compensation under the ground that driver of the offending vehicle did not posses a valid driving license. This finding suffers from perversity and the same is hereby set aside.
16. In the light of the above discussion, the compensation awarded by the tribunal is modified as follows:
| Compensation awarded under the head | Amount (in Rs.) |
| Loss of Income | 13,46,400 |
| Medical Bills | 53,160 |
| Loss of Consortium | 80,000 |
| Loss of Estate | 15,000 |
| Funeral Expenses | 15,000 |
| Transport Expenses | 5,000 |
| Total | 15,14,560 |
18. In the result, this Civil Miscellaneous Appeals is partly allowed in the above terms. No costs. Consequently, connected miscellaneous petition is closed.