National Insurance Company Limited, Vs. 1.Amudha - Court Judgment

Excerpt:
before the madurai bench of madras high court dated:08. 03/2013 coram the honourable mr.justice c.s.karnan c.m.a.(md)no.60 of 2009 national insurance company limited, through its branch manager, 2a, thirumakkulam north street, thallakulam, madurai ”002. ... appellant vs. 1.amudha 2.viji 3.sujitha (r-2 and r-3 declared major and guardian discharged vide order dated 18.02.2010 made in m.p.nos.4 and 5 of 2009 in c.m.a.(md)no.60 of 2009) 4.ponraj ... respondents prayer civil miscellaneous appeal is filed under section 173 of the motor vehicles act, to set-aside the order dated 01.08.2007 made in m.c.o.p.no.945 of 2005, on the file of motor accidents claims tribunal, principal district judge, tirunelveli. !for appellant ... mr.s.srinivasa raghavan ^for respondents... mr.t.selvakumaran - - - :judgment the appellant / second respondent has preferred the present appeal against the judgment and decree passed in m.c.o.p.no.945 of 2005, on the file of motor accidents claims tribunal, principal district judge, tirunelveli.2. the short facts of the case are as follows:- the petitioners, who are the wife and minor children of the deceased narayanaswamy have filed the claim in m.c.o.p.no.945 of 2005, claiming compensation of a sum of rs.15,00,000/- from the respondents for the death of the said narayanaswamy in a motor vehicle accident. it was submitted that on 23.06.2005, when the (deceased) narayanaswamy was travelling in the tata indica car bearing registration not tn-69-w-2678, along with another passenger, viz., thangavel, from tirunelveli to kovilpatti and about 1.30 p.m., when the said car was proceeding just north of petrol bunk at gangaikondan, on tirunelvel-madurai main road, and driven by its driver, viz., the (deceased) arokiaraj at a slow speed from south towards north, the first respondent's lorry bearing registration not tn-51-7815, coming from the opposite direction and driven by its driver at a high speed and in a rash and negligent manner, all of a sudden, came to wrong side beyond the median. the driver of the tata indica car, tried to stop the car on the left side of the road, but in spite of this, the lorry dashed against the car due to which, the car was pushed back to a few yards and smashed into pieces. in the accident, the driver of the car, viz., arockiaraj and the (deceased) passenger narayanaswamy died on the spot itself. the other passenger viz., thangavel sustained severe injuries. at the time of accident, the deceased was aged 46 years and was an ex-serviceman and after his retirement from the army, he was employed as security in the indian oil corporation and drawing a salary of rs.4,200/-. further, he was drawing rs.5,440/- per month as pension. in addition to this, the (deceased) was working as a sales representative of one ajantha health care products and was earning a sum of rs.10,000/- per month. hence, the petitioners have filed the claim against the first and second respondents, who are the owner and insurer of the lorry bearing registration not tn-51-7815.3. the second respondent, in his counter has denied the averments in the claim regarding the age, income and occupation of the (deceased) narayanaswamy. the averments in the claim that the petitioners were the legal- heirs of the deceased and that they were dependents on the income of the deceased was also not admitted. it was submitted that the driver of the tata indica car bearing registration not tn-69-w-2678 had driven the car in a rash and negligent manner and dashed it against the lorry and as such, the accident had occurred due to composite negligence on the part of both the drivers. it was submitted that as the petitioners have not impleaded the owner and insurer of the tata indica car, the claim is bad for non-joinder of necessary parties. it was submitted that the claim was excessive.4. the motor accidents claims tribunal had framed three issues for consideration in the case, viz., (i) whether the accident was caused by the rash and negligent driving by the driver of the first respondent's lorry? (ii) whether the petition is bad for non-joinder of necessary parties? and (iii) whether the petitioners are entitled to get compensation? if so, what is the quantum of compensation and who is liable to pay the compensation?" 5. in the same accident, two other claims have been filed in m.c.o.p.no.1129 of 2005 and m.c.o.p.no.1133 of 2005, viz., thangavel had claimed compensation for the injuries sustained by him in the accident and the petitioners in m.c.o.p.no.1133 of 2005, who are the legal-heirs of the (deceased) arockiaraj have claimed compensation for the death of the said arockiaraj in the accident.6. on a joint memo filed by the counsels for their respective parties, joint trial was conducted and common evidence recorded in m.c.o.p.no.945 of 2005. the first petitioner in m.c.o.p.no.945 of 2005, amudha was examined as p.w.1 and the petitioner in m.c.o.p.no.1129 of 2005, thangavel was examined as p.w.3 and the first petitioner in m.c.o.p.no.1133 of 2005, tmt. reetha mary was examined as p.w.3. thiru.ramaguru, professor, tirunelveli medical college hospital, tirunelveli was examined as p.w.4 and thiru.solaiappan, insurance surveyor was examined as p.w.5 and 41 documents were marked as exs.p1 to p41, viz., ex.p1-certified copy of f.i.r. in crime no.89 of 2005 of gangaikondan police station, dated 23.06.2005, ex.p2-certified copy of final report dated 27.07.2005, ex.p3-certified copy of motor vehicle inspector's report, ex.p4-certified copy of motor vehicle inspector's report dated 24.06.2006, ex.p5-certified copy of observation mahazar dated 23.06.2005, ex.p6- xerox copy of training certificate issued by indian army, ex.p7-xerox copy of identity card, ex.p8-xerox copy of order for payment for pension, ex.p9-copy of state bank account, ex.p10-account and challan particulars of u.t.i. bank, ex.p11-indian overseas bank pass book, ex.p12-xerox copy of pension certificate, ex.p13-certificate issued by positive production dated 28.06.2005, ex.p14-copy of weekly account of ajantha company, ex.p15-prospectus coy of ajantha company, ex.p16-certified copy of wound certificate, ex.p17-discharge summary issued by shree sudharson hospitals, exs.p18 to p20-hospital bills issued by shree sudharson hospitals, ex.p21-bill issued by physiotherapist, ex.p22-hospital bill issued by nellai ortho aids dated 24.06.2005, ex.p23-hospital bill issued by k.g.hospital, dated 18.03.2006, ex.p24-c.t.scan bill dated 30.06.2005, ex.p25-x- rays bills, ex.p26-medical bills, ex.p27-prescription sheet, ex.p28-x-rays, ex.p29-postmortem certificate dated 24.06.2005, ex.p30-permit, ex.p31-order regarding transfer of permit, ex.p32-copy of policy, ex.p33-r.c.book, ex.p34- sale agreement, ex.p35-survey report dated 27.10.2005, ex.p36-photos and negatives, ex.p37-documents relating to lorry with registration not tn69-z-6676, ex.p38-copy of driving licence, ex.p39-central bank of india account, ex.p40- disability certificate issued by p.w.4 dated 17.06.2006, ex.p41-x-rays (5 in numbers), ex.r2-x-ray bill. on the side of the respondents, two witnesses were examined and five documents were marked as exs.r1 to r5, viz., ex.r1-copy of policy, ex.r2-xerox copy of rough sketch, ex.r3-investigation report, dated 21.11.2005, ex.r4-certified copy of judgment in c.c.no.147 of 2006 on the file of judicial magistrate-iii, tirunelveli, dated 31.07.2006, ex.r5-xerox copy of judgment in c.c.no.147 of 2005, on the file of judicial magistrate-iii, tirunelveli, dated 31.07.2006.7. p.w.2, thangavel, the petitioner in m.c.o.p.no.1129 of 2005 had adduced evidence that on 23.06.2005, when he and others were travelling in the tata indica car bearing registration not tn-69-w-2678, when the said car was proceeding from south to north on the tirunelveli-madurai amin road, and nearing a petrol bunk at gangaikondan, the first respondent's lorry bearing registration not tn-51-7815, coming from the opposite direction and driven in a rash and negligent manner by its driver, dashed against the car in which they were travelling and caused the accident. he deposed that three persons travelling in the said car died on the spot itself, and that he had sustained fracture of bones in his body.8. on scrutiny of ex.p1, f.i.r., it is seen that the complaint regarding the accident had been given by one xavier, who is the brother of the (deceased) arockiaraj, who died in the accident. in this complaint, it has been stated that at about 01.30 p.m., when the car, which was driven by the deceased arockiaraj was nearing gangaikondan on the kanyakumar-madurai national highways, the first respondent's lorry bearing registration no. tn-51-7815, coming from the opposite direction, i.e., from north to south and driven by its driver rashly and negligently, dashed against the car, head on, as a result of which, the car was turned towards south and that when the said xavier visited the accident spot, he could see his brother arockiaraj, another passenger narayanaswamy and yet another passenger viz., alwar lying dead and could see one thangavel and rajmohan had sustained injuries.9. r.w.2, iyappan, the driver of the first respondent's lorry had adduced evidence that on the date of accident, he was driving his lorry on the left side of the road and that the tata indica car had come from the opposite direction, and dashed against his lorry.10. the tribunal, observed that r.w.2 had not stated in his evidence, whether he was driving the lorry slowly and carefully and had also not stated whether he was acquitted by the criminal court on the ground that the accident was due to the rash driving on the part of the tata indica car and he had also not stated in his evidence whether the tata indica car was driven by its driver in a rash and negligent manner.11. though it was contended on the side of the respondents that as per ex.r5, the copy of the judgment of criminal court, the second respondent has proved that the accident was due to the negligence or rashness on the part of r.w.2 and that it was only due to the negligence of the driver of the tat indica car, the tribunal opined that ex.r5, cannot be used for the purpose of deciding the cause of the accident. the tribunal further opined that the rough sketch marked as ex.r2, and the report of the investigator of the second respondent marked as ex.r3, do not have any evidentiary value as regards the question of determining how the accident had taken place.12. hence, the tribunal on scrutiny of ex.p1 and the evidence of p.w.2 and on scrutiny of the oral and documentary evidence held that the accident had been caused by the negligence of the first respondent's lorry driver. the tribunal, on opining that it is the prerogative of the petitioner to claim compensation against the person, who according to the petitioners were responsible for the tort and on observing that they have thought it fit to only file the claim against the owner and insurer of the lorry, held that the petition is not bad for non-joinder of necessary parties.13. on scrutiny of copy of postmortem certificate, it is seen that the deceased narayanaswamy died of complications of multiple injuries sustained in the accident. hence, the tribunal held both the respondents liable to pay compensation to the petitioners and held the second respondent, being the insurer of the first respondent's lorry liable to indemnify the first respondent.14. p.w.1, in her evidence had deposed that her husband was an ex- serviceman and that after his retirement from the army, he was employed as security in the indian oil corporation and was drawing a monthly salary of rs.4,200/-. she further deposed that he was drawing rs.5,440/- as pension and that in addition to this, the deceased was earning rs.10,000/- per month through his work as a sales representative in one ajantha health care products.15. on scrutiny of ex.p13, it is seen that the deceased was paid rs.4,125/- per month as total emoluments. from scrutiny of ex.p4, it is seen that the deceased was earning a commission of rs.4,000/- to rs.5,000/- per month through his work as a sales representative. the tribunal opined that the deceased could have earned an average of rs.2,000/- per month through his sales representative job. hence, the tribunal held that the monthly income of the deceased could be taken as rs.6,000/- per month. the tribunal, on deducting 1/3rd of this income for his personal expenses and on adopting a multiplier of '13' awarded a compensation of a sum of rs.6,24,000/- to the petitioners under the head of 'loss of income' (6000 x 2/3 x 12 x 13); rs.10,000/- was awarded to each of the first, second and third petitioners under the head of loss of love and affection; rs.10,000/- was awarded to the first petitioner under the head of 'loss of consortium' and rs.5,000/- was awarded towards funeral expenses. in total, the tribunal awarded a sum of rs.6,69,000/- as compensation to the petitioners and directed the second respondent to deposit the said sum together with interest at the rate of 6% per annum from the date of filing the petition till the date of payment of compensation within three months with costs from the date of its order.16. aggrieved by the award passed by the tribunal, the second respondent / national insurance company has preferred the present appeal.17. the learned counsel for the appellant / insurance company has contended in his appeal that the tribunal ought to have appreciated that the accident in question took place as a result of a head on collision of two vehicles. it was contended that the tribunal ought to have found that the claimants have not chosen to implead the owner and insurer of the car bearing registration not tn-69-w-2678 in which they were travelling at the time of accident. it was contended that the tribunal ought to have found that there was no negligence on the part of the driver of the lorry bearing registration not tn- 51-7815 and a perusal of exs.r4 and r5 would prove the absence of guilt on the part of the driver of the lorry and also would prove that the competent magistrate court had acquitted the driver of the lorry from the criminal prosecution alleging negligence on the part of the driver of the lorry. it was contended that the tribunal ought to have found that the accident had taken place as a result of the negligence on the part of the driver of the car bearing registration not tn-69-w-2678 only and at the worst, it is a composite negligence and as such, the tribunal ought not to have fastened the entire liability on the owner and insurance copy of the lorry involved in the accident. it was contended that the tribunal ought to have found that the witnesses examined on the part of the insurance company. r.w.s.1 and 2 would clearly prove the absence of negligence on the part of the driver of the driver of the lorry. it was also contended that the tribunal was not justified in discarding the evidentiary value of exs.r4 and r5 and that the oral testimony of r.w.1 and r.w.2 and the scope and ambit of judgment of the magistrate court, which had acquitted the driver of the lorry. it was submitted that the award was excessive and hence, it was prayed to set-aside the award passed by the tribunal.18. the learned counsel for the claimants submitted that the claimants are three in numbers and that they are young widow and two children and that the deceased was aged 46 years and was earning a sum of not less than rs.10,000/- through his employment at i.o.c. and through sales representative work. but, the tribunal had only taken the income of the deceased as rs.6,000/- per month for assessing compensation under the head of 'loss of income' which is on the lower side. the award granted under the head of loss of love and affection and funeral expenses are also on the lower side. the learned counsel has further submitted that the negligence had been contributed by the driver of the first respondent's vehicle and the same had been proved through rough sketch and f.i.r. the quantum of compensation has been assessed on the basis of salary certificate and pension particulars. therefore, there is no lacuna in the award passed by the tribunal.19. on verifying the facts and circumstances of the case and arguments advanced by the highly competent counsels and on perusing the impugned award of the tribunal, this court does not find any discrepancy in the conclusions arrived at regarding liability and quantum of compensation. therefore, this court declines to interfere with the award passed by the tribunal. as per court records, it is seen that the appellant / insurance company has already been deposited the entire compensation amount.20. now, it is open to the claimants to withdraw their apportioned share of the award amount, with accrued interest, thereon, lying in the credit of m.c.o.p.no.945 of 2005, on the file of motor accidents claims tribunal, principal district judge, tirunelveli, after filing a memo, along with a copy of this order, subject to deduction of withdrawals made by the claimants, as per this court's earlier orders.21. in the result, the above appeal is dismissed. consequently, the order passed in m.c.o.p.no.945 of 2005, on the file of motor accidents claims tribunal, principal district judge, tirunelveli, dated 01.08.2007 is confirmed. there is no order as to costs. r n s to the principal district judge, motor accidents claims tribunal, tirunelveli.

Judgment:
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:

08. 03/2013 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN C.M.A.(MD)No.60 of 2009 National Insurance Company Limited, Through its Branch Manager, 2A, Thirumakkulam North Street, Thallakulam, Madurai ”

002. ... Appellant Vs. 1.Amudha 2.Viji 3.Sujitha (R-2 and R-3 declared major and guardian discharged vide order dated 18.02.2010 made in M.P.Nos.4 and 5 of 2009 in C.M.A.(MD)No.60 of 2009) 4.Ponraj ... Respondents PRAYER Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, to set-aside the order dated 01.08.2007 made in M.C.O.P.No.945 of 2005, on the file of Motor Accidents Claims Tribunal, Principal District Judge, Tirunelveli. !For Appellant ... Mr.S.Srinivasa Raghavan ^For Respondents... Mr.T.Selvakumaran - - - :JUDGMENT The appellant / second respondent has preferred the present appeal against the judgment and decree passed in M.C.O.P.No.945 of 2005, on the file of Motor Accidents Claims Tribunal, Principal District Judge, Tirunelveli.

2. The short facts of the case are as follows:- The petitioners, who are the wife and minor children of the deceased Narayanaswamy have filed the claim in M.C.O.P.No.945 of 2005, claiming compensation of a sum of Rs.15,00,000/- from the respondents for the death of the said Narayanaswamy in a motor vehicle accident. It was submitted that on 23.06.2005, when the (deceased) Narayanaswamy was travelling in the Tata Indica Car bearing registration not TN-69-W-2678, along with another passenger, viz., Thangavel, from Tirunelveli to Kovilpatti and about 1.30 p.m., when the said car was proceeding just north of petrol bunk at Gangaikondan, on Tirunelvel-Madurai Main Road, and driven by its driver, viz., the (deceased) Arokiaraj at a slow speed from south towards north, the first respondent's lorry bearing registration not TN-51-7815, coming from the opposite direction and driven by its driver at a high speed and in a rash and negligent manner, all of a sudden, came to wrong side beyond the median. The driver of the Tata Indica Car, tried to stop the car on the left side of the road, but in spite of this, the lorry dashed against the car due to which, the car was pushed back to a few yards and smashed into pieces. In the accident, the driver of the car, viz., Arockiaraj and the (deceased) passenger Narayanaswamy died on the spot itself. The other passenger viz., Thangavel sustained severe injuries. At the time of accident, the deceased was aged 46 years and was an ex-serviceman and after his retirement from the army, he was employed as security in the Indian Oil Corporation and drawing a salary of Rs.4,200/-. Further, he was drawing Rs.5,440/- per month as pension. In addition to this, the (deceased) was working as a sales representative of one Ajantha Health Care Products and was earning a sum of Rs.10,000/- per month. Hence, the petitioners have filed the claim against the first and second respondents, who are the owner and insurer of the lorry bearing registration not TN-51-7815.

3. The second respondent, in his counter has denied the averments in the claim regarding the age, income and occupation of the (deceased) Narayanaswamy. The averments in the claim that the petitioners were the legal- heirs of the deceased and that they were dependents on the income of the deceased was also not admitted. It was submitted that the driver of the Tata Indica Car bearing registration not TN-69-W-2678 had driven the car in a rash and negligent manner and dashed it against the lorry and as such, the accident had occurred due to composite negligence on the part of both the drivers. It was submitted that as the petitioners have not impleaded the owner and insurer of the Tata Indica Car, the claim is bad for non-joinder of necessary parties. It was submitted that the claim was excessive.

4. The Motor Accidents Claims Tribunal had framed three issues for consideration in the case, viz., (i) Whether the accident was caused by the rash and negligent driving by the driver of the first respondent's lorry? (ii) Whether the petition is bad for non-joinder of necessary parties? and (iii) Whether the petitioners are entitled to get compensation? If so, what is the quantum of compensation and who is liable to pay the compensation?" 5. In the same accident, two other claims have been filed in M.C.O.P.No.1129 of 2005 and M.C.O.P.No.1133 of 2005, viz., Thangavel had claimed compensation for the injuries sustained by him in the accident and the petitioners in M.C.O.P.No.1133 of 2005, who are the legal-heirs of the (deceased) Arockiaraj have claimed compensation for the death of the said Arockiaraj in the accident.

6. On a joint memo filed by the counsels for their respective parties, joint trial was conducted and common evidence recorded in M.C.O.P.No.945 of 2005. The first petitioner in M.C.O.P.No.945 of 2005, Amudha was examined as P.W.1 and the petitioner in M.C.O.P.No.1129 of 2005, Thangavel was examined as P.W.3 and the first petitioner in M.C.O.P.No.1133 of 2005, Tmt. Reetha Mary was examined as P.W.3. Thiru.Ramaguru, Professor, Tirunelveli Medical College Hospital, Tirunelveli was examined as P.W.4 and Thiru.Solaiappan, Insurance Surveyor was examined as P.W.5 and 41 documents were marked as Exs.P1 to P41, viz., Ex.P1-certified copy of F.I.R. in Crime No.89 of 2005 of Gangaikondan Police Station, dated 23.06.2005, Ex.P2-certified copy of final report dated 27.07.2005, Ex.P3-certified copy of Motor Vehicle Inspector's report, Ex.P4-certified copy of Motor Vehicle Inspector's report dated 24.06.2006, Ex.P5-certified copy of observation mahazar dated 23.06.2005, Ex.P6- xerox copy of training certificate issued by Indian Army, Ex.P7-xerox copy of identity card, Ex.P8-xerox copy of order for payment for pension, Ex.P9-copy of state bank account, Ex.P10-account and challan particulars of U.T.I. Bank, Ex.P11-Indian Overseas Bank pass book, Ex.P12-xerox copy of pension certificate, Ex.P13-certificate issued by positive production dated 28.06.2005, Ex.P14-copy of weekly account of Ajantha company, Ex.P15-prospectus coy of Ajantha company, Ex.P16-certified copy of wound certificate, Ex.P17-discharge summary issued by Shree Sudharson Hospitals, Exs.P18 to P20-Hospital bills issued by Shree Sudharson Hospitals, Ex.P21-bill issued by Physiotherapist, Ex.P22-Hospital bill issued by Nellai Ortho Aids dated 24.06.2005, Ex.P23-Hospital bill issued by K.G.Hospital, dated 18.03.2006, Ex.P24-C.T.Scan bill dated 30.06.2005, Ex.P25-X- rays bills, Ex.P26-medical bills, Ex.P27-prescription sheet, Ex.P28-X-rays, Ex.P29-postmortem certificate dated 24.06.2005, Ex.P30-permit, Ex.P31-order regarding transfer of permit, Ex.P32-copy of policy, Ex.P33-R.C.Book, Ex.P34- sale agreement, Ex.P35-Survey Report dated 27.10.2005, Ex.P36-Photos and negatives, Ex.P37-documents relating to lorry with registration not TN69-Z-6676, Ex.P38-copy of driving licence, Ex.P39-central bank of India account, Ex.P40- disability certificate issued by P.W.4 dated 17.06.2006, Ex.P41-X-rays (5 in numbers), Ex.R2-X-ray bill. On the side of the respondents, two witnesses were examined and five documents were marked as Exs.R1 to R5, viz., Ex.R1-copy of policy, Ex.R2-xerox copy of rough sketch, Ex.R3-investigation report, dated 21.11.2005, Ex.R4-certified copy of judgment in C.C.No.147 of 2006 on the file of Judicial Magistrate-III, Tirunelveli, dated 31.07.2006, Ex.R5-Xerox copy of judgment in C.C.No.147 of 2005, on the file of Judicial Magistrate-III, Tirunelveli, dated 31.07.2006.

7. P.W.2, Thangavel, the petitioner in M.C.O.P.No.1129 of 2005 had adduced evidence that on 23.06.2005, when he and others were travelling in the Tata Indica car bearing registration not TN-69-W-2678, when the said car was proceeding from south to north on the Tirunelveli-Madurai Amin Road, and nearing a petrol bunk at Gangaikondan, the first respondent's lorry bearing registration not TN-51-7815, coming from the opposite direction and driven in a rash and negligent manner by its driver, dashed against the car in which they were travelling and caused the accident. He deposed that three persons travelling in the said car died on the spot itself, and that he had sustained fracture of bones in his body.

8. On scrutiny of Ex.P1, F.I.R., it is seen that the complaint regarding the accident had been given by one Xavier, who is the brother of the (deceased) Arockiaraj, who died in the accident. In this complaint, it has been stated that at about 01.30 p.m., when the car, which was driven by the deceased Arockiaraj was nearing Gangaikondan on the Kanyakumar-Madurai National Highways, the first respondent's lorry bearing registration No. TN-51-7815, coming from the opposite direction, i.e., from north to south and driven by its driver rashly and negligently, dashed against the car, head on, as a result of which, the car was turned towards south and that when the said Xavier visited the accident spot, he could see his brother Arockiaraj, another passenger Narayanaswamy and yet another passenger viz., Alwar lying dead and could see one Thangavel and Rajmohan had sustained injuries.

9. R.W.2, Iyappan, the driver of the first respondent's lorry had adduced evidence that on the date of accident, he was driving his lorry on the left side of the road and that the Tata Indica Car had come from the opposite direction, and dashed against his lorry.

10. The Tribunal, observed that R.W.2 had not stated in his evidence, whether he was driving the lorry slowly and carefully and had also not stated whether he was acquitted by the Criminal Court on the ground that the accident was due to the rash driving on the part of the Tata Indica Car and he had also not stated in his evidence whether the Tata Indica Car was driven by its driver in a rash and negligent manner.

11. Though it was contended on the side of the respondents that as per Ex.R5, the copy of the judgment of Criminal Court, the second respondent has proved that the accident was due to the negligence or rashness on the part of R.W.2 and that it was only due to the negligence of the driver of the Tat Indica Car, the Tribunal opined that Ex.R5, cannot be used for the purpose of deciding the cause of the accident. The Tribunal further opined that the rough sketch marked as Ex.R2, and the report of the investigator of the second respondent marked as Ex.R3, do not have any evidentiary value as regards the question of determining how the accident had taken place.

12. Hence, the Tribunal on scrutiny of Ex.P1 and the evidence of P.W.2 and on scrutiny of the oral and documentary evidence held that the accident had been caused by the negligence of the first respondent's lorry driver. The Tribunal, on opining that it is the prerogative of the petitioner to claim compensation against the person, who according to the petitioners were responsible for the tort and on observing that they have thought it fit to only file the claim against the owner and insurer of the lorry, held that the petition is not bad for non-joinder of necessary parties.

13. On scrutiny of copy of postmortem certificate, it is seen that the deceased Narayanaswamy died of complications of multiple injuries sustained in the accident. Hence, the Tribunal held both the respondents liable to pay compensation to the petitioners and held the second respondent, being the insurer of the first respondent's lorry liable to indemnify the first respondent.

14. P.W.1, in her evidence had deposed that her husband was an ex- serviceman and that after his retirement from the army, he was employed as Security in the Indian Oil Corporation and was drawing a monthly salary of Rs.4,200/-. She further deposed that he was drawing Rs.5,440/- as pension and that in addition to this, the deceased was earning Rs.10,000/- per month through his work as a Sales Representative in one Ajantha Health Care products.

15. On scrutiny of Ex.P13, it is seen that the deceased was paid Rs.4,125/- per month as total emoluments. From scrutiny of Ex.P4, it is seen that the deceased was earning a commission of Rs.4,000/- to Rs.5,000/- per month through his work as a Sales Representative. The Tribunal opined that the deceased could have earned an average of Rs.2,000/- per month through his sales representative job. Hence, the Tribunal held that the monthly income of the deceased could be taken as Rs.6,000/- per month. The Tribunal, on deducting 1/3rd of this income for his personal expenses and on adopting a multiplier of '13' awarded a compensation of a sum of Rs.6,24,000/- to the petitioners under the head of 'loss of income' (6000 x 2/3 x 12 x 13); Rs.10,000/- was awarded to each of the first, second and third petitioners under the head of loss of love and affection; Rs.10,000/- was awarded to the first petitioner under the head of 'loss of consortium' and Rs.5,000/- was awarded towards funeral expenses. In total, the Tribunal awarded a sum of Rs.6,69,000/- as compensation to the petitioners and directed the second respondent to deposit the said sum together with interest at the rate of 6% per annum from the date of filing the petition till the date of payment of compensation within three months with costs from the date of its order.

16. Aggrieved by the award passed by the Tribunal, the second respondent / National Insurance Company has preferred the present appeal.

17. The learned counsel for the appellant / Insurance Company has contended in his appeal that the Tribunal ought to have appreciated that the accident in question took place as a result of a head on collision of two vehicles. It was contended that the Tribunal ought to have found that the claimants have not chosen to implead the owner and insurer of the car bearing registration not TN-69-W-2678 in which they were travelling at the time of accident. It was contended that the Tribunal ought to have found that there was no negligence on the part of the driver of the lorry bearing registration not TN- 51-7815 and a perusal of Exs.R4 and R5 would prove the absence of guilt on the part of the driver of the lorry and also would prove that the competent Magistrate Court had acquitted the driver of the lorry from the criminal prosecution alleging negligence on the part of the driver of the lorry. It was contended that the Tribunal ought to have found that the accident had taken place as a result of the negligence on the part of the driver of the car bearing registration not TN-69-W-2678 only and at the worst, it is a composite negligence and as such, the Tribunal ought not to have fastened the entire liability on the owner and insurance copy of the lorry involved in the accident. It was contended that the Tribunal ought to have found that the witnesses examined on the part of the insurance company. R.W.s.1 and 2 would clearly prove the absence of negligence on the part of the driver of the driver of the lorry. It was also contended that the Tribunal was not justified in discarding the evidentiary value of Exs.R4 and R5 and that the oral testimony of R.W.1 and R.W.2 and the scope and ambit of judgment of the Magistrate Court, which had acquitted the driver of the lorry. It was submitted that the award was excessive and hence, it was prayed to set-aside the award passed by the Tribunal.

18. The learned counsel for the claimants submitted that the claimants are three in numbers and that they are young widow and two children and that the deceased was aged 46 years and was earning a sum of not less than Rs.10,000/- through his employment at I.O.C. and through Sales Representative work. But, the Tribunal had only taken the income of the deceased as Rs.6,000/- per month for assessing compensation under the head of 'loss of income' which is on the lower side. The award granted under the head of loss of love and affection and funeral expenses are also on the lower side. The learned counsel has further submitted that the negligence had been contributed by the driver of the first respondent's vehicle and the same had been proved through rough sketch and F.I.R. The quantum of compensation has been assessed on the basis of salary certificate and pension particulars. Therefore, there is no lacuna in the award passed by the Tribunal.

19. On verifying the facts and circumstances of the case and arguments advanced by the highly competent counsels and on perusing the impugned award of the Tribunal, this Court does not find any discrepancy in the conclusions arrived at regarding liability and quantum of compensation. Therefore, this Court declines to interfere with the award passed by the Tribunal. As per Court records, it is seen that the appellant / Insurance Company has already been deposited the entire compensation amount.

20. Now, it is open to the claimants to withdraw their apportioned share of the award amount, with accrued interest, thereon, lying in the credit of M.C.O.P.No.945 of 2005, on the file of Motor Accidents Claims Tribunal, Principal District Judge, Tirunelveli, after filing a Memo, along with a copy of this order, subject to deduction of withdrawals made by the claimants, as per this Court's earlier orders.

21. In the result, the above appeal is dismissed. Consequently, the order passed in M.C.O.P.No.945 of 2005, on the file of Motor Accidents Claims Tribunal, Principal District Judge, Tirunelveli, dated 01.08.2007 is confirmed. There is no order as to costs. r n s To The Principal District Judge, Motor Accidents Claims Tribunal, Tirunelveli.