(Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act,1988, against the judgment and Award dated 24.01.2025 made in MCOP No.89 of 2023, on the file of the Motor Accidents Claims Tribunal (Principal District Court), Ariyalur.)

1. This Appeal, under Section 173 of Motor Vehicles Act, has been filed by the appellant / 3rd respondent in MCOP No.89 of 2023, on the file of the Motor Accidents Claims Tribunal (Principal District Court), Ariyalur, for enhancement of the sum awarded and assailing the apportionment made by the claims tribunal.

2. The deceased Prabhakaran was earning Rs.95,000/- per month by way of owner-cum-driver of lorry and was also doing agriculture. On 29.01.2023, at about 9.45 p.m. the deceased was driving the Splender Plus two wheeler bearing Registration No.TN 49 L 3146 and while proceeding on the Sathamangalam-Thirumannur NH Road, a Tractor attached with tipper bearing Registration No. TN 32 T 3188 owned by the 1st respondent and driven by its driver in a rash and negligent manner, dashed against the deceased vehicle, as a result of which the said Prabhakaran died on the spot. At the relevant point of time, the said vehicle was insured with the 2nd respondent. The legal representatives of the deceased preferred a claim petition for awarding them a total sum of Rs.50,00,000/- as compensation for the loss caused to them due to the death of deceased Prabhakaran, claiming them to be dependants of the deceased. By the impugned Award, the learned Tribunal has accepted the claim of the claimants in part and awarded a total sum of Rs.13,53,170/- in favour of the claimants against the respondents, after deducting 30% for deceased's contributory negligence. Further, the learned Tribunal, in the total award amount apportioned a sum of Rs.53,170/- to the appellant / 3rd respondent. Aggrieved by this, the appellant / 3rd defendant is on appeal.

3. Mr.P. Mani, the learned counsel for the appellant / 3rd respondent submits that the learned Tribunal erroneously fixed the monthly income of the deceased notionally at Rs.15,000/- per month in spite sufficient evidence was produced to prove the avocation and the income of the deceased. His further contention is that the alleged accident took place solely due to the negligence of the driver of the 1st respondent's vehicle who parked the vehicle at no parking area without any indicator and that the accident took place during the night hours. He would submit that once the substantive evidence before the Motor Accident Claims Tribunal established that the offending vehicle had been parked on the road at night without any reflectors, the Motor Accident Claims Tribunal cannot proceed on the basis of conjecture in arriving at a finding of contributory negligence. To support his contention he has relied on the following judgments:

                   1. Judgment dated 20.11.2024 of the High Court of Delhi in MAC APP.469 of 2023 (Meenu Attery & others vs. United India Insurance Co. Ltd., and others)

                   2. Judgment of the Hon’ble Supreme Court dated 11.12.2019 in Civil Appeal No.9343 of 2019 (Jumani Begum vs. Ram Narayan & others.

                   3. Judgment of the High Court of Judicature for Rajasthan Bench at Jaipur dated 29.03.2022 made inS.B. Civil Miscellaneous Appeal No.2778/2019 (Smt. Bharosi Bai Alias Ram Bharosi Bai and others vs. Radhey Shyam and others)

He would further contend that the learned Tribunal erred in awarding a paltry sum of Rs.53,170/- towards the appellant's share out of the total compensation of Rs.13,53,170/-. He would also contend that the tribunal failed to award compensation towards future prospects.

4. On the other hand, the learned counsel appearing for the 3rd respondent / Insurance Company would submit that the learned Tribunal has deducted 30% as contributory negligence of the deceased not only on the basis of dashing against the parked vehicle but also on the ground that the deceased had no valid license to drive the two wheeler at the time of accident. Hence, fixing 30% contribution on the side of the deceased towards his negligence is factually and legally correct, which requires any interference by this Court.

5. The learned counsel for the 1st respondent / claimant would submit that if there is any enhancement in the award passed by the Tribunal, the same can be apportioned towards the appellant's share.

6. Heard on both sides. Records perused.

7. It is not in dispute that the offending vehicle was parked on the road without any reflectors and the alleged accident took place during night hours. As rightly pointed by the learned counsel for the appellant, the learned Claims Tribunal erroneously proceeded on the basis of conjectures in arriving at findings of contributory negligence. There is nothing on record to show that the deceased was negligent to any extent. Therefore, I accept the submissions made by the learned counsel for the appellant / 3rd respondent in this regard. Admittedly, the deceased had no driving license to drive a two wheeler at the time of the alleged accident. Therefore, in such circumstances, this Court fixes 10% contribution on the side of the deceased for not having proper driving license at the time of the accident. Moreover, on perusal of the impugned award of the Claims Tribunal, it is seen that no amount was granted towards future prospects. Therefore, considering the age of the deceased and applying the principles laid down in National Insurance Co. vs Pranay sethi and others reported in 2017 (2) TNMAC 601, 40% is added towards future prospects. The Tribunal has rightly fixed the notional income of the deceased at Rs.15,000/- since there is no proof of income and the same does not require any interference. Hence, the loss of dependency is calculated as under:

                   Calculation

                   Notional Income = Rs.15,000/-

                   40% Future Prospects = Rs.21,000/-

                   After 1/3 deduction = Rs.14,000/-

                   Loss of dependency

                   = Rs.14,000/- x 12 x 15

                   = Rs.25,20,000/-

8. Considering the facts and circumstances of the case, the compensation awarded by the Tribunal, under various heads, is modified by this Court as follows:

                  

9. In the result,

                   i.The Civil Miscellaneous Appeal is partly allowed. No costs. Consequently connected miscellaneous petition is closed.

                   ii.The quantum of compensation awarded by the Tribunal is enhanced to Rs.23,62,050/- from Rs.13,53,170/-.

                   iii.The appellant is directed to pay court fee for the enhanced compensation amount, if any, and the Registry is directed to draft the decree only after receipt of Court fee.

                   iv.The 3rd respondent/Insurance company is directed to deposit a sum of Rs.23,62,050/-(less the amount already deposited) with interest at the rate of 7.5% per annum from the date of claim petition till the date of deposit, within a period of four weeks from the date of receipt of a copy of this order, in the first instance, to the credit of M.C.O.P. No.89 of 2023 on the file of the Motor Accident Claims Tribunal, Principal District Court, Ariyalur, and then recover the same from the owner of the vehicle under the same cause of action.

                   v.The enhanced compensation amount is apportioned to the share of the appellant apart from the amount apportioned to him in the Tribunal.

                   vi.On such deposit being made, the appellant and the 1st respondent / claimant are at liberty to withdraw their share with costs and interest, after filing a proper petition for withdrawal.