Judgment :- 1. The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree, dated 31.03.2003, made in M.C.O.P.No.511 of 2002, on the file of the Motor Accident Claims Tribunal, Sub-Ordinate Court, Thiruvallur, awarding a compensation of Rs.12,17,000/- together with 9% interest per annum, from the date of filing petition till the date of payment of compensation. 2. Aggrieved by the said Award and Decree, the appellant/second respondent has filed the above appeal praying to scale down the award and decree passed by the Tribunal. 3. The short facts of the case are as follows: on 17.02.2002, at about 05.30 p.m. the deceased D.Simson was standing with his friend in G.N.T.road, Athipedu bus stand, at that time the first respondents Swaraj Mazda Mini Lorry bearing registration No.TAC7177, coming from north to south, in a rash and negligent manner by its driver dashed against the deceased and caused his death. The accident had occurred only due to the rash and negligent driving of the driver of the first respondent. The first respondent is the owner of the vehicle and the second respondent is the insurer of the vehicle. The first petitioner is the widow of the deceased and the second and third petitioners are the parents of the deceased. As such, the petitioners claimed a compensation of Rs.24,00,000/- before the Tribunal. 4. The second respondent, in their Counter, had resisted the claim petition, which reads as follows: "In any event this respondent is unable to admit there was valid policy for the mini lorry with registration No.TAC 7177. This respondent is unable to admit that D.Balakrishnan who allegedly drove the mini lorry had valid licence. This respondent is unable to admit that the deceased D.Simson was a labour contractor or that he was making Rs.30,000/-per month. This respondent is unable to admit that the deceased was an income tax assesse, or that any tax deduction was made. Without admitting that the deceased suffered any tax deduction at source this respondent submits that the T.B.S.amount cannot be taken as the clear index of the actual income earned. If it is ultimately shown that the individual need not pay any income tax then amount collected by way of T.D.S. is responsible. Without admitting that the deceased suffered any tax deduction at source this respondent submits that the T.B.S.amount cannot be taken as the clear index of the actual income earned. If it is ultimately shown that the individual need not pay any income tax then amount collected by way of T.D.S. is responsible. Since, the claim is for hefty sum of Rs.24,00,000/- the claimants should be directed to produce Income tax returns submitted by the deceased for the period of five years immediately prior to the accident and the income tax payment chalan. It is respectfully submitted that only taxable income as declared by the I.T. Officials can be taken into account. Further, it is a settled legal position that income tax liability has to be deducted while computing the income. This respondent is unable to admit that the deceased Simson was aged about 30 only at the time of the accident. It has to be proved by proper documentary evidence. In any event the quantum claimed is excessive. The claim is liable to be dismissed with costs." The second respondent prayed accordingly. 5. The learned Motor Accident Claims Tribunal framed two issues for the consideration namely: (i)Whether the accident had occurred due to the rash and negligent driving of the driver of the first respondents vehicle? (ii)Whether the petitioners are entitled to get compensation? If so, what is the quantum of compensation? 6. On the petitioners side, the first claimant, the widow of the deceased was examined as PW1 and one Lamuel, eye witness of the accident was examined as PW2 and seven documents were marked as Exs.P1 to P7 namely Ex.P1-Xerox copy of the First Information Report, Ex.P2-Xerox copy of the Post-Mortem Report, Ex.P3-Xerox copy of the Rough Sketch, Ex.P4-Xerox copy of the Charge Sheet, Ex.P5-Xerox copy of the Lower Court Judgment, Ex.P6-T.D.S.Certificates and Letters, Ex.P7-Legal heir Certificate. On the respondents side no one was examined and no documents were marked. 7. The PW1, widow of the deceased, had adduced evidence stating that the second and third claimants are the parents of the deceased. Further, she adduced evidence stating that on 17.02.2002, she was told that her husband had met with an accident and died on the spot. Further, she stated that the accident had happened due to the rash and negligent driving of the vehicle by its driver. Further, she adduced evidence stating that on 17.02.2002, she was told that her husband had met with an accident and died on the spot. Further, she stated that the accident had happened due to the rash and negligent driving of the vehicle by its driver. Further, she had adduced evidence stating that her husbands income was Rs.35,000/-per month and he was 30 years old at the time of accident. In order to prove the income of the deceased, she had marked Ex.P6-TDS Certificate and corresponding letters. In order to prove the legal heirs of the deceased she had marked Ex.P7-Legal Heirs Certificate. 8. PW2, one Lamuel, eye witness of the accident, had adduced evidence stating that the deceased was his brother, who and one Govindaraj were standing on the GST road nearly and at the point of time the first respondents lorry bearing registration No.TAC7177 was coming from Andhra towards Chennai, in a rash and negligent manner and dashed against the deceased. In the result, he succumbed to his injuries and died. The case was registered by the Investigating Wing, after registering the complaint. To prove the accident, Ex.P1-First Information Report, Ex.P3-Rough Sketch, Ex.P4-Charge sheet and Ex.P5-Judgment copy of the lower Court were marked. 9. After considering the evidence of PW1 and, PW2 and documents, which were marked as exhibits, the learned Tribunal had come to the conclusion that the accident had occurred only due to the rash and negligent driving of the driver of the first respondents vehicle, therefore the second respondent/United India Assurance Co., Ltd., is liable to pay compensation and awarded the compensation as follows: i. Rs.11,52,000/- under the head of loss of income, on the basis of the deceaseds income was Rs.9,000/- per month and his age was 30 years, the multiplier 16 was accordingly calculated, ii. Rs.5,000/- under the head of funeral expenses, iii. Rs.20,000/- under the head of consortium to the first claimant, iv. Rs.20,000/- under the head of mental shock, v. Rs.20,000/- under the head of loss of love and affection, In total, the Tribunal awarded a sum of Rs.12,17,000/-as compensation to the petitioners, together with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation. Rs.20,000/- under the head of mental shock, v. Rs.20,000/- under the head of loss of love and affection, In total, the Tribunal awarded a sum of Rs.12,17,000/-as compensation to the petitioners, together with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation. Further, the Tribunal directed the second respondent to deposit the compensation amount of Rs.12,17,000/- together with interest at the rate of 9% per annum from the date of filing the claim petition till the date of payment of compensation, within a period of one month from the date of its order. In turn, the said amount to be deposited, under a fixed deposit scheme, in a nationalised bank for a period three years. Further, the Tribunal apportioned a sum of Rs.6,08,500/-and Rs.3,04,250/- each to the second and third petitioners. Accordingly ordered. 10. Aggrieved by the said Award and Decree, the appellant/second respondent has filed the above appeal praying to scale down the award and decree passed by the Tribunal. 11. The learned counsel appearing for the appellant argued that the Tribunal had fixed the monthly income of the deceased as Rs.9,000/- without any income tax assessment record. As such, the compensation amount of Rs.12,17,000/- is erroneous. Further, the learned counsel argued that the rate of interest is also on higher side. 11. The learned counsel appearing for the appellant argued that the Tribunal had fixed the monthly income of the deceased as Rs.9,000/- without any income tax assessment record. As such, the compensation amount of Rs.12,17,000/- is erroneous. Further, the learned counsel argued that the rate of interest is also on higher side. The learned counsel for the appellant in support of his appeal has cited the following Judgments made in 2009 (1) TN MAC 30, The Manager, Valparai Estate v. Smt.Alamelu, the relevant head notes of which are as follows: "WORKMENS COMPENSATION ACT, 1923, Ss.3 & 30 – PLANTATION LABOUR ACT, 1951, Ss.15 & 16-A – Appeal against order of compensation – Deceased workman, a plantation worker attacked by wild elephant while residing in house provided by employer/Estate – Deceased was attacked when he came out of residence on hearing noise from outside – Whether Accident occurred out of and in course of employment – Residing in residential quarters provided to worker by employer as per Plantation Act incidental to employment – Worker stays in house provided by employer only on account of nature of employment – Therefore, no impediment for Court to infer that staying in house provided by employer got nexus with employment – And, deceased worker was exposed to risk, not out of his imprudent act but as the common man of diligence when he came out from house to know what happened outside – Employer, therefore, liable to pay compensation as accident occurred out of and in course of employment." 2009 (1) TN MAC 346 (SC), Mallikarjuna G.Hiremath v.B.M., Oriental Ins.Co. Ltd. & anr. Ltd. & anr. the relevant head notes of which are as follows: "WORKMENS COMPENSATION ACT, 1923, S.3(1) – Maintainability of claim of Compensation under – Deceased, a driver in Truck, went to Gurugunta from Siraguppa on direction of insured/Appellant, where he went to a Temple and was sitting on steps of pond in Temple and slipped and fell in water and died due to drowning – Whether death occurred out of and in course of employment – Ingredients essential for attracting provisions of S.3 – (i) Causal connection between injury and accident and work done in course of employment – (ii)Proof of fact that work and resulting strain contributed/aggravated injury – (iii)Work contributing to causing of personal injury – An accident may lead to death, but that accident had taken place must be proved – Only because death taken place during and in course of presumption, that accident had occurred – In a case of this nature to prove that accident has taken place factors to be established; (2)nature of employment; and (3) injury aggravated due to stress & strain – In view of principles as laid above, facts and circumstances of case, held, not sufficient to fasten liability on either Insurer or insured – High Court not justified in holding insured/Appellant liable to pay compensation. 12. The learned counsel for the first respondent/first claimant argued that the Tribunal had properly assessed the compensation after considering the income, age, dependants of the deceased. Further, the learned counsel argued that the award amount under the head of funeral expenses is also on lower side. The original claim was Rs.24,00,000/-, but the Tribunal awarded a sum of Rs.12,17,000/-, which is reasonable and fair. Further, the learned counsel argued that the award amount under the head of funeral expenses is also on lower side. The original claim was Rs.24,00,000/-, but the Tribunal awarded a sum of Rs.12,17,000/-, which is reasonable and fair. The learned counsel in support of his appeal has cited the following Judgments made in 2009 (1) TN MAC 619 (SC), National Insurance Co., Ltd., v. Saroj and ors, the relevant head notes of which are as follows: "WORKMENS COMPENSATION ACT, 1988, Ss.166 & 168 – and Second Schedule – Compensation – Determination – Multiplier method as specified in Second Schedule – Applicability – Extent – No denial or dispute that multiplier method can be applied for purpose of determination of compensation in motor accident in terms of provisions of Act – However, it does not mean that multiplier specified in Second Schedule should be applied automatically – Second Schedule provides for a new pre-determined formula for payment of compensation to road accident victims on basis of age/income in more liberal or rational way – If that be so, question arises as to why injured claimant and claimants in case of death on proof of negligence would get a lesser amount than one specified in Second Schedule although both are similarly situated – Such a dichotomy, held, could be resolved by finding applicability of multiplier in cases where victims have suffered injuries resulting in permanent total disablement or permanent partial disability – Apex Court in Rani Gupta observed that in appropriate case, matter may require consideration by larger bench in view of Paragraphs 5 & 6 of Note appended to Second Schedule in terms whereof multiplier to be adopted only in case of permanent total or partial disability – Probably, in view of that matter, there is cleavage of opinion in matter of application of multiplier – whereas in one set of decisions multiplier specified in Second Schedule has been applied, in another set of decisions, a lesser multiplier applied – In either set of decisions, no principle of law laid down – However, it is accepted at Bar that multiplier in Second Schedule should be taken to be guidelines – Case law discussed – Multiplier." 2002 – 2 – L.W.109, The New India Assurance Co., Ltd., v. K.Kartheeswaran & Another, the relevant head notes of which are as follows: "Motor Vehicles Act (1988), S.164 – Claimant aged 17, a school student sustained serious injuries due to rash driving of a lorry, left leg amputated above the knee, dislocation of bone, left ankle, knee, both shoulders, right elbow, head injury, etc. Towards claim for Rs.16 lakhs the Tribunal awarded Rs.14,87,500/- On appeal by Insurance company amount was modified as Rs.13,90,000/- - Loss of income for 30 years should be estimated by adopting 35 years as multiplier and Rs.6.5 lakhs awarded under this head – Award of Rs.1 lakh towards mental torture and agony due to amputation, Rs.3 lakhs for pain and suffering upheld." 13. Considering the facts and circumstances of the case, the arguments advanced by the learned counsel appearing on either side and the award and decree passed by the Tribunal, this Court is of the view that the Tribunal fixed the income of the deceased as Rs.9,000/- per month as being erroneous and lacking crystal clear documentary proof. Hence, this Court decided to restructure the compensation as follows: i. The Tribunal awarded a sum of Rs.11,52,000/- under the head of loss of income, this Court reduces it to Rs.9,60,000/-, after considering the deceaseds income as Rs.7,500/- and after deducting 1/3rd share for personal expenses of the deceased, the age and multiplier as fixed by the Tribunal as this Courts concurrence, ii. The Tribunal awarded a sum of Rs.20,000/- under the head of loss of love and affection to the second and third claimants, this Court confirms the same as it is pertinent, iii. The Tribunal awarded a sum of Rs.5,000/- under the head of funeral expenses, this Court enhances it to Rs.10,000/-, iv. The Tribunal awarded a sum of Rs.20,000/- under the head of consortium to the first claimant, this Court reduces it to Rs.15,000/- as it is pertinent, In total, this Court awards a compensation of Rs.10,05,000/- together with interest at the rate of 9% per annum, from the date of filing the claim petition, till the date of payment of compensation. Therefore, this Court hereby reduces the Tribunal compensation amount of Rs.12,17,000/- to Rs.10,05,000/-, which is fair and equitable. Further, this Court apportioned a sum of Rs.5,00,000/- to the first claimant, Rs.2,55,000/- to the second claimant and Rs.2,50,000/- to the third claimant. 14. On 07.12.2005, this Court directed the appellant/second respondent to deposit the 50% of the award amount including the interest and costs, into the credit of the M.C.O.P.No.511 of 2002, on the file of the Motor Accident Claims Tribunal, Sub-Ordinate Court, Thiruvallur. 14. On 07.12.2005, this Court directed the appellant/second respondent to deposit the 50% of the award amount including the interest and costs, into the credit of the M.C.O.P.No.511 of 2002, on the file of the Motor Accident Claims Tribunal, Sub-Ordinate Court, Thiruvallur. Now, this Court hereby directed the appellant/second respondent to deposit the remaining compensation amount with accrued interest and costs as observed by this Court, into the credit of the M.C.O.P.No.511 of 2002, on the file of the Motor Accident Claims Tribunal, Sub-Ordinate Court, Thiruvallur, within a period of six weeks from the date of receipt of a copy of this order. 15. As the accident had happened in the year 2002, therefore after such a deposit being made, the claimants/first, second and third respondents are at liberty to withdraw the entire compensation amount with accrued interest thereon and costs, lying in the credit of the M.C.O.P.No.511 of 2002, on the file of the Motor Accident Claims Tribunal, Sub-Ordinate Court, Thiruvallur, by making proper payment out application, subject to the deduction of withdrawals, if any, in accordance with law. 16. In the result, this Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 31.03.2003, made in M.C.O.P.No.511 of 2002, passed by the Motor Accident Claims Tribunal, Sub-Ordinate Court, Thiruvallur is modified. No costs.