Judgment The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree, dated 16.06.2004, made in M.C.O.P.No.1204 of 2000, on the file of the Motor Accidents Claims Tribunal, Additional District Court and Fast Track Court No.V, Coimbatore at Tiruppur, awarding a compensation of Rs.8,16,000/- with 9% interest per annum from the date of the petition to till the date of deposit of the compensation. 2. Aggrieved by the above said award, the appellant/United India Insurance Co., Ltd., has preferred the above appeal to set aside the order. .3. The short facts of the case are as follows: .On 04.06.2000, at about 1.30 a.m. the deceased was driving the van bearing registration No.TN39 J6035, near Urappanoor. At that time, the lorry bearing registration No.TDM 9469, driven in a rash and negligent manner, dashed against the van and as a result, the deceased died due to the injuries sustained in the accident. The accident was due to the rash and negligent driving of the driver of the lorry in the course of the employment under the first respondent, the owner of the lorry. The lorry is insured with the second respondent. The van bearing registration No.TN39 J6035 is owned by the third respondent and is insured with the fourth respondent. So, all the respondents are jointly and severally liable to pay the compensation to the petitioners, who are the legal heirs of the deceased. 4. The deceased was a hale and healthy man of 38 years old at the time of the accident. He was a van driver and agriculturist and was earning a sum of Rs.7,000/-per month. He could have lived for another 25 years had he not died due to the accident. The petitioners have spent a sum of Rs.20,000/-for the funeral expenses and a sum of Rs.10,000/- for transporting body to native place. In total, the petitioners have claimed a compensation of Rs.15,00,000/-with 18% interest from the respondents, under Sections 163(A) and 166 of the Motor Vehicles Act. 5. The Thirumangalam Police Station has registered a criminal case in crime No.582/2000. .6. In total, the petitioners have claimed a compensation of Rs.15,00,000/-with 18% interest from the respondents, under Sections 163(A) and 166 of the Motor Vehicles Act. 5. The Thirumangalam Police Station has registered a criminal case in crime No.582/2000. .6. The second respondent in his Counter has resisted the claim stating that the alleged accident had happened only due to the carelessness of the deceased, while driving van and that even if it is found by the Tribunal that the accident was caused by both the drivers of the lorry and the van, the award should be apportioned. The respondent has further denied that the driver of the lorry drove the vehicle in a rash and negligent manner. Further, the age, income and occupation of the deceased was not admitted. Further, it was submitted that the claim made in the petition was exaggerated and very high. Further, it was denied that the petitioners were the legal heirs of the deceased. Further, the first respondent has not given any particulars regarding the accident and the claim and it was further submitted that the driver of the first respondent did not have valid driving licence at the time of the accident. As such, the second respondent had prayed for dismissal of the claim petition. 7. The first and third respondents did not enter appearance and no counters have been filed by them regarding the said claim. 8. The fourth respondent/The New India Assurance Co., Ltd., Udumalpet in its Counter has resisted the claim stating that only the driver of the lorry bearing registration No.TDM 9469 had driven the vehicle at highspeed and in a rash and negligent manner and caused the accident. Further, as it has not been stated in the claim that the van driver had driven the van in a rash manner, the third and fourth respondents are not liable to pay any compensation. Further, the age, income and occupation of the deceased was not admitted. It was also not admitted that the petitioners were the legal heirs of the deceased. Further, the claim in the petition was highly excessive. As such, the fourth respondent had prayed for dismissal of the claim petition. 9. The Motor Accident Claims Tribunal framed two issues for the consideration namely: .(i) Who was responsible for the accident? Are the petitioners entitled to receive compensation? If so, who is liable to pay the compensation? Further, the claim in the petition was highly excessive. As such, the fourth respondent had prayed for dismissal of the claim petition. 9. The Motor Accident Claims Tribunal framed two issues for the consideration namely: .(i) Who was responsible for the accident? Are the petitioners entitled to receive compensation? If so, who is liable to pay the compensation? .(ii) What is the quantum of compensation payable to the petitioners? 10. The second respondent has filed a petition bearing No.IA 721 of 2003, dated 07.08.2003, before the Tribunal under Section 170 of the Motor Vehicles Act to plead the case for the owner of the lorry bearing registration No.TDM 9469. As such, the Tribunal ignored the arguments advanced by the second respondent that the said lorry was not insured with it. 11. On the petitioners side, two witness were examined as PW1 and PW2 and five documents as Exs.P1 to P5 were marked. On the respondents side, there were no oral or documentary evidence advanced. 12. Further, the Tribunal held that there was no dispute regarding the occurrence of the accident as was seen from the Counter given by the second and fourth respondent. The first petitioner, the wife of the deceased, on being examined as PW1 has stated in her evidence that on 04.06.2000, at about 1.30 a.m. when the deceased was driving the van bearing registration No.TN39 J6035, in a slow and steady manner on the road near Kiyavarappunur, the lorry bearing registration No.TDM 9469, coming in the opposite direction was driven at a highspeed and in a rash and negligent manner and dashed against the said van thereby causing the accident and subsequent injuries to the deceased. As a result of the injuries, the deceased had died. As such, the first petitioner had stated in her evidence that only the driver of the first respondent was responsible for the accident. 13. As the first respondent had not witnessed the accident, one Palanisami, the eye witness of the accident, was examined as PW2. The PW2, in his evidence has stated that on 04.06.2000, at about 1.30 a.m. as he was proceeding on the road, on which the accident had occurred, in his motorcycle bearing registration No.TN33 S5455, the said van driven by the PW1s husband was proceeding on the same road 100 feet in front of it. The PW2, in his evidence has stated that on 04.06.2000, at about 1.30 a.m. as he was proceeding on the road, on which the accident had occurred, in his motorcycle bearing registration No.TN33 S5455, the said van driven by the PW1s husband was proceeding on the same road 100 feet in front of it. At that time, the lorry bearing registration No.TDM 9469, coming in the opposite direction and driven at a highspeed and in a rash and negligent manner, dashed against the said van and thereby caused the accident. As such, the PW2 has stated that the accident had occurred only due to the fault of the driver of the lorry. Even on cross-examination, the evidence given by the PW2 could not be refuted or found untrue. 14. Further, even in the FIR filed about the accident as Ex.P1, it has been stated that the accident was only due to the fault of the driver of the lorry bearing registration No.TDM 9469. Even on cross-examination, the evidence as per Exs.P1 and P2, the Post-mortem Report could not be refuted for found untrue. The PW1, further had marked the Death Certificate of the deceased as Exs.P3 and P5, the driving licence of her deceased husband. On the petitioners side, it has been clearly established as to who was the cause for the accident, but on the respondents side there were no oral or documentary evidence to counter the same. Even, the driver of the first respondent has not adduced evidence to prove that he is no responsible for the accident. As such, the Tribunal held that the accident had been caused only due to the fault of the driver of the lorry belonging to the first respondent. Further the Tribunal, on considering the legal opinion given in 2002 ACJ Page 407, 2001 ACJ Page 428 and 2002 ACJ Page 1571 in Para No.7, held the first and second respondents liable to pay the compensation to the petitioners and dismissed the claim as against the third and fourth respondents. 15. Further, the respondents had contended that as the deceased had died at the time of his employment, the petitioners claim was valid only when it was made under the Workmen Compensation Rules and not valid under the Motor Accident Claims Tribunal. This contention was rejected by the Tribunal citing Judgment of cases in 2004(2) Law Weekly Page-95, Madras High Court, Md. This contention was rejected by the Tribunal citing Judgment of cases in 2004(2) Law Weekly Page-95, Madras High Court, Md. Haneffa Vs. United India Insurance Company Ltd., and 2000 (3) Supreme Court 698, Rula Devi and Another Vs. New India Assurance Company Ltd., 16. The Tribunal, on examination of Ex.P5, the driving licence of the deceased van driver, came to the conclusion that the deceased was a driver before the said accident. The PW1 has also stated the same in her evidence. Further, on examination of Ex.P4, the Legal Heirship Certificate issued by the Tahsildar, Palladam, decided that the petitioners are the legal heirs of the deceased. Further, in the petition, it has been claimed that the deceased was aged about 38 years and a driver and earning a sum of Rs.7,000/- per month. This was also confirmed on scrutiny of the Counter of the fourth respondent. Further, the PW2, in his evidence has stated that he knew that the deceased was employed as a van driver under one Eswaran and that he was earning a sum of Rs.5,000/- per month as he had personally seen this when the petitioner received salary. The Tribunal, also considered the fact that the drivers, at that time, at Palladam and Tiruppur were earning a monthly salary of Rs.5,000/-. But, the owner of the van ie. the employer of the deceased did not come forward to give evidence on the income of the deceased. As such, the Tribunal considered that the salary of the deceased could be taken as Rs.4,000/-per month. As no evidence, has been put forth to prove that the petitioner had also earned money being an agriculturist, the Tribunal decided that no income could be taken under this. 17. Further, the Tribunal after considering the evidence of PW1 and after scrutiny of the Ex.P2 Post-mortem Report, decided that the age of the deceased was 38 years. There was no contrary facts established by the respondents on this. So, the Tribunal took the age of the deceased as 38 years. 17. Further, the Tribunal after considering the evidence of PW1 and after scrutiny of the Ex.P2 Post-mortem Report, decided that the age of the deceased was 38 years. There was no contrary facts established by the respondents on this. So, the Tribunal took the age of the deceased as 38 years. But, on the petitioners side, it was contended that the appropriate multiplier should be selected only after taking into account the age of the first petitioner (35 years), age of the second petitioner (14 years) and age of the third petitioner (12 years) as well as the appropriate multiplier for the age of the deceased and has referred a legal opinion expressed in 2002 ACJ Page 1166, in support of this argument. Accordingly, the Tribunal after considering this, took the appropriate multiplier as 16. 18. At this stage, the learned counsel appearing for the petitioners had argued that the future prospects of the deceased should be considered before determining the compensation to be paid to the petitioners and in support of this argument he has pointed out rulings of the Judgment made in cases as follows: 1994 ACJ Page 1 1999 ACJ Supreme Court Page 1400 2002 ACJ Page 1601 Para 6 1996 ACJ Page 581 AIR 1998 Supreme Court Page 3036 1998 ACJ Page 920 2004 ACJ Page 222 The Tribunal, on consideration of the above said rulings, decided that it was in consonance with the present case, and further considering that the salary earned by the deceased at the time of the accident was Rs.4,000/-took his future enhanced income as Rs.8,000/-. Taking the average of the salary at the time of the accident and the future salary, the Tribunal held that the average salary, which the deceased would have earned will be Rs.4,000/- + Rs.8,000 / 2 = Rs.6,000/-per month. As such, the Tribunal calculated the loss of income to the petitioners due to the death of the deceased as Rs.6,000 X 12 X 16 X 2/3 = Rs.7,68,000/-. 19. Further, the Tribunal awarded a sum of Rs.10,000/-to the first petitioner as compensation for loss of consortium and a sum of Rs.10,000/-each to the first, second and third petitioners as compensation for loss of love and affection. If awarded a compensation of Rs.5,000/- for loss of love and affection to the fourth petitioner, the mother of the deceased. For funeral expenses, it awarded a compensation of Rs.3,000/-. If awarded a compensation of Rs.5,000/- for loss of love and affection to the fourth petitioner, the mother of the deceased. For funeral expenses, it awarded a compensation of Rs.3,000/-. In total, a sum of Rs.8,16,000/- was granted by the Tribunal as compensation. Further, it directed the first and second respondents to pay the above said compensation and dismissed the claim as against the third and fourth respondents. 20. Further, 50% of the award granted was apportioned to be paid to the first petitioner and the second and third petitioners were apportioned 20% each of the award amount and the fourth petitioner was apportioned 10% of the award. It further directed the first and second respondents to deposit the above said award with 9% interest from the date of filing the petition to the till date of payment of compensation into the credit of the M.C.O.P.No.1204 of 2000, on the file of the Motor Accidents Claims Tribunal, Additional District Court and Fast Track Court No.V, Coimbatore at Tiruppur, within a period of one month from the date of its Order. Further, the award deposited in the Court should be deposited in a Nationalised Bank for a period of three years and the interest on such deposit can be withdrawn by the petitioners, once in six months. Further, the apportioned award of the minors-second and third petitioners would have to be retained in the bank as deposit till they attain the age of major. The petitioners were directed to pay the Court fee for the award within a period of one month from the date of its Order. 21. The learned counsel appearing for the appellant has argued in his appeal that the Tribunal has erred in considering monthly income of the deceased as Rs.6,000/-per month without acceptable proof and only on the basis of the evidence given by the claimants. Further, the multiplier adopted is high and the finding on negligence and quantum of compensation is also erroneous. As such, the learned counsel appearing for the appellant has prayed for setting aside the Order. 22. The learned counsel appearing for the respondent argued that the Original Claim made ie. Rs.15,00,000/- reasonable, but the Tribunal had awarded only a sum of Rs.8,16,000/- with 9% interest only on the basis of oral and documentary evidence. As such, the learned counsel appearing for the appellant has prayed for setting aside the Order. 22. The learned counsel appearing for the respondent argued that the Original Claim made ie. Rs.15,00,000/- reasonable, but the Tribunal had awarded only a sum of Rs.8,16,000/- with 9% interest only on the basis of oral and documentary evidence. Further, the deceased was the only breadwinner of the family and all the four claimants were depending on the income of the deceased. At the time of accident, the deceased was aged about 38 years and his monthly salary was Rs.7,000/-. But, the Tribunal calculated the future income and present income and the average of the both was taken as Rs.6,000/- and then the compensation was calculated. So, the Tribunal had awarded a sum of 7,68,000/- as compensation towards loss of income to the petitioners, which is reasonable. The compensation awarded on other heads are also fair. As such, the Tribunal Order has been a well considered one, after trial. Supporting his case, the respondent counsel pointed out a Judgments in, Sarla Dixit Vs. Balwant Yadav, wherein it has been mentioned as follows: "Deceased in the present case, as seen above, was earning gross salary of Rs.1,543/-per month. Rounding it up to figure of Rs.1,500/-and keeping in view all the future prospects which the deceased had in stable military service in the light of his brilliant academic record and performance in the military service spread over 7 years, and also keeping in view the other imponderable like accidental death while discharging military duties and the hazards of military service, it will not be unreasonable to predicate that his gross monthly income would have shot up to at least double than what he was earning at the time of his death, ie. up to Rs.3,000/-per month had he survived in life and had successfully completed his future military career till the time of superannuation. The average gross future monthly income at the time of death, namely, Rs.1,500/-per month to the maximum which he would have otherwise got had he not died a premature death, ie. Rs.3,000/- per month and dividing that figure by two. Thus the average gross monthly income spread over his entire future career, had it been available, would work out to Rs.4,500/- divided by 2, ie. Rs.2,200/-. Rs.3,000/- per month and dividing that figure by two. Thus the average gross monthly income spread over his entire future career, had it been available, would work out to Rs.4,500/- divided by 2, ie. Rs.2,200/-. Rs.2,200/-per month would have been the gross monthly average income available to the family of the deceased had he survived as a bread winner. From that gross monthly income at least 1/3rd will have to be deducted by way of his personal expenses and other liabilities like payment of income-tax etc. That would roughly work out of Rs.730/-per month but even taking a higher figure of Rs.750/- per month and deducting the same by way of average personal expenses of the deceased from the average gross earning of Rs.2,200/- per month balance of Rs.1,450/- which can be rounded up to Rs.1,500/-per month would have been the average amount available to the family of the deceased ie. his dependents, namely appellants herein." 23. For the foregoing reasons, and on consideration of the facts and circumstances of the case and arguments advanced by the learned counsels for their respective parties and after going through citation cited by the learned counsel for the respondent, the Court is of the view that the Tribunals award, under the head of loss of earning, wherein he had taken the average of the present and future salary and calculated the loss of earning, is erroneous for the following reason. In the instant case, the deceased was a driver working under a private individual and the employer had not been examined, so, his employment cannot be considered to be a permanent one. As such, the citation, cited by the learned counsel for the respondents is not applicable as in that case, the deceased was a captain in the Indian Army. So, this Court considers that there is need for interference in the findings of the Tribunal. .24. This Court admits that the deceased was working as a driver as per Ex.P5, which is the driving licence of the deceased. There has been no proof regarding the income earned by the deceased and the manner of employment cannot be said to be of a permanent nature. Hence, the Court has come to a conclusion that the deceaseds income could be taken as Rs.4,000/-only and future prospects cannot be considered. There has been no proof regarding the income earned by the deceased and the manner of employment cannot be said to be of a permanent nature. Hence, the Court has come to a conclusion that the deceaseds income could be taken as Rs.4,000/-only and future prospects cannot be considered. As the claimants are 4 in number, the Court considers that 1/4th of the income of the deceased could be taken as his personal expenses and resultantly computes the compensation as under. .Rs.3,000 X 12 X 16 = Rs.5,76,000/- .25. For consortium, the Court awards a sum of Rs.20,000/- instead of Rs.10,000/-as awarded by Tribunal. The award of Rs.10,000/-given to the first petitioner for loss of love and affection is set aside as not pertinent. The award of Rs.10,000/- each granted by the Tribunal to the second and third petitioners for loss of love and affection is confirmed. The fourth petitioner has been given an award of Rs.5,000/- for loss of love and affection, by the Tribunal and this Court enhances this award to Rs.10,000/-. The .Tribunal had awarded a sum of Rs.3,000/-for funeral expenses. This Court enhances the same to Rs.10,000/-. 26. In effect, this Court has scaled down the award of Rs.8,16,000/- given by the Tribunal to Rs.6,36,000/-, together with interest at the rate of 9% per annum from the date of filing the claim petition to till the date of payment, which this Court feels is equitable, fair and prudent too. 27. This Court hereby directs the appellant/United India Insurance Co., Ltd., to deposit the award of Rs.6,36,000/- granted by this Court together with interest at the rate of 9% per annum from the date of filing the petition to till date of payment into the credit of the M.C.O.P.No.1204 of 2000, on the file of the Motor Accidents Claims Tribunal, Additional District Court and Fast Track Court No.V, Coimbatore at Tiruppur, within a period of six weeks from the date of receipt of this Order. If the appellant has already deposited the entire compensation with accrued interest and costs, the appellant/United India Insurance Co., Ltd., is permitted to receive the balance amount from the Motor Accident Claims Tribunal, in the manner known to law. 28. If the appellant has already deposited the entire compensation with accrued interest and costs, the appellant/United India Insurance Co., Ltd., is permitted to receive the balance amount from the Motor Accident Claims Tribunal, in the manner known to law. 28. In the result, the Civil Miscellaneous Appeal is allowed in the above terms, consequently the award passed in the M.C.O.P.No.1204 of 2000, on the file of the Motor Accidents Claims Tribunal, Additional District Court and Fast Track Court No.V, Coimbatore at Tiruppur, is modified. No costs.