Judgment :- G. Chockalingam, J. 1. The Insurance Company viz., United India Insurance Company has come up with the present civil miscellaneous appeal having aggrieved over an award passed by the Motor Accident Claims Tribunal, Coimbatore in M.C.O.P.No.437 of 2007 dated 30.11.2011. 2. The claim petition in M.C.O.P.No.437 of 2007 was filed by the wife, daughter and son of the deceased Dr.Dhamodharan, who are ranked as respondents 1 to 3 in the present appeal, having lost him in a road accident, as against the owner of the Tempo Traveller bearing Registration No.TN 38 A 4432 and the insurer viz., the appellant-Insurance Company, seeking a compensation of Rs.75,00,000/-. 3. The case of the claimants before the Tribunal was that the deceased Dr.Damodharan, who was working as Senior Scientist in the Sugarcane Breeding Institute viz., fourth respondent herein, was returning from Karnataka to Coimbatore on 24.1.2006 after completing his official work, by the above said Tempo Traveller, driven by its Driver viz., Balachandran and whileso, at about 2.00 pm, when the vehicle was plying at Aymangala at Chitradurga District, the driver of the Tempo Traveller, having driven it in a rash and negligent manner, dashed against a Lorry bearing registration No.KA 01 D 1145 belonging to the 7th respondent herein and driven by its driver viz., 6th respondent herein and caused the accident and the resultant death of the said Damodharan. The said lorry was insured with the 8th respondent herein. According to the claimants, the deceased would earn a sum of Rs.70,000/= per month had he been alive and the accident was due to rash and negligence on the part of the driver of the Tempo Traveller and hence, the claim petition was filed as against the owner and Insurer of the said vehicle. 4. The owner of the Tempo Traveller viz., the fourth respondent herein filed counter before the Tribunal contending that the claimants were paid sufficient compensation by them as employer and they have been paid family pension and the claim made is an exorbitant one. 5. The appellant herein contested the claim petition contending that the driver of the Tempo Traveller was not holding a valid licence at the time of the accident and the policy conditions had been violated. 5. The appellant herein contested the claim petition contending that the driver of the Tempo Traveller was not holding a valid licence at the time of the accident and the policy conditions had been violated. It was further contended by them that the theory of contributory negligence has to be applied to the present case as it could be proved by rough sketch that the other vehicle viz., lorry was also responsible for the accident. Further contention of the insurer was that the claimants have not proved the income and avocation of the deceased. 6. On the side of the claimants, the first claimant viz., wife of the deceased was examined as PW1 and the eyewitness to the accident was examined as PW2 and 13 documents were marked as Exs.P.1 to P13. On the side of respondents, five witnesses were examined as RW1 to RW5 and 11 documents were marked as Ex.R1 to R11. 7. On analysing the oral and documentary evidence, the Tribunal found that the accident occurred due to the rash and negligence driving on the part of the driver of the Tempo Traveller belonging to the fourth respondent herein while holding the appellant vicariously liable to pay the compensation and arrived at a total compensation of Rs.41,57,760/- and after deducting a sum of Rs.5,00,000/= already paid by the owner of the Tempo Traveller, fixed the compensation as Rs.36,57,760/-. Aggrieved against the award passed by the Tribunal, the present appeal has been filed by the Insurance Company. 8. The learned counsel for the appellant-Insurance Company contended that the Tribunal after appreciating the evidence adduced by both the parties came to a wrong conclusion that the driver of the Temo Traveller alone held responsible for the accident. He further contended that the Tempo-Traveller was proceeding from North to South and the Lorry was proceeding from South to North and the Rough sketch reveals that the lorry was slightly on the right to centre and the Tempo-Traveller was over turned and lying on its correct side and as such the accident had occurred due to the rash and negligent driving of the driver of the lorry. During the accident, the driver of the Tempo-Traveller died. The complaint has been given only by the driver of the lorry and his negligence was not mentioned in the complaint. During the accident, the driver of the Tempo-Traveller died. The complaint has been given only by the driver of the lorry and his negligence was not mentioned in the complaint. Since the driver of the lorry is also liable for the accident, the Tribunal ought to have fixed the contributory negligence on both the vehicles and apportioned the liability on the insurer of both the vehicles. The Tribunal has erred in awarding a dis-proportionate award without following the judgment of the Honourable Apex Court in Sumiya Devi and others Vs. Sri Bir Marketing Services and others reported in 2008 ACJ 2833. It is further contended that for proving the age and income of the deceased, no document was produced on the side of the respondents 1 to 3/claimants and the Tribunal failed to deduct the statutory liability of the income tax at the rate of 30% and also wrongly adopted the multiplier in calculating the compensation. He further contended that the Tribunal ought to have deducted the special pension of 60% till the life time of the 1st respondent/claimant. The Tribunal erred in holding that the appellant-Insurance Company is liable to pay compensation, without appreciating the fact that who is only an occupant in a Tempo-Traveller and there is no package coverage and the insurance policy is only an act policy and therefore, it would not cover this risk. Under the said circumstances, the learned counsel prayed that the judgment and decree passed by the Tribunal has to be modified and the compensation awarded by the Tribunal has to be reduced according to law. 9. Per contra, the learned counsel appearing for the respondents 1 to 3/claimants contended that after appreciating the evidence adduced on both sides, the Tribunal rightly came to a conclusion that the accident occurred due to the rash and negligent driving of the driver of the Tempo-Traveller and fixed the liability on the appellant-Insurance Company. The learned counsel further contended that regarding the age and income particulars, the R.W.1 has produced the sufficient materials. The learned counsel for the respondents 1 to 3/claimants further contended that the Tribunal has rightly fixed the income of the deceased and there is no reason to modify the award of the Tribunal and hence, the appeal has to be dismissed. 10. The learned counsel for the respondents 1 to 3/claimants further contended that the Tribunal has rightly fixed the income of the deceased and there is no reason to modify the award of the Tribunal and hence, the appeal has to be dismissed. 10. The learned counsel appearing for the respondents 4, 5 and 8 would submit that the Tribunal after appreciating the evidence on record, rightly came to a conclusion that the accident was occurred due to the rash and negligent driving of the driver of the Tempo-Traveller and the driver of the lorry not at all responsible for the accident. Further, the driver of the lorry was examined and he deposed that he is not at all responsible for the accident and only due to the rash and negligent driving of the driver of the Tempo-Traveller, the accident took place and therefore, the driver of the lorry or the owner of the lorry not at all liable to pay the compensation to the respondents 1 to 3 and 5/claimants. In view of the above facts, this appeal has to be dismissed. 11. According to the learned counsel for the appellant-Insurance Company, the accident took place only due to the rash and negligent driving of the lorry driver and it was denied on the side of the respondents 1 to 3 and 5/claimants that the accident occurred due to the rash and negligent driving of the driver of the Tempo-Traveller and proving the same, on the side of the respondents 1 to 3 and 5/claimants, one Velayutham, who was an eye-witness was examined as P.W.2. P.W.2 in his evidence categorically stated that “TAMIL” In view of the evidence of the eye-witness P.W.2 and the evidence of the lorry driver R.W.5 and also considering the fact that no contra evidence was adduced on the side of the appellant and further the criminal case was registered against the driver of the Tempo-Traveller, the argument of the learned counsel for the appellant that the accident was also occurred due to the rash and negligent driving of the driver of the lorry, therefore, contributory negligence has to be fixed, is not acceptable one. Hence, we are of the considered view that since the accident was occurred due to the rash and negligent driving of the Tempo-Traveller, the insurer of the vehicle viz., the appellant-Insurance Company is liable to pay the compensation. 12. Hence, we are of the considered view that since the accident was occurred due to the rash and negligent driving of the Tempo-Traveller, the insurer of the vehicle viz., the appellant-Insurance Company is liable to pay the compensation. 12. The learned counsel for the appellant contended that for the Tempo-traveller only statutory policy was issued and there is no comprehensive policy. He further contended that the deceased was travelling as an occupant in the Tempo-Traveller and there is no package coverage and the insurance policy is only an act policy and therefore, it would not cover this risk. Hence, the Insurance Company is not liable to pay any compensation. 13. Per contra, the learned counsel for the respondents 1 to 3 and 5/claimants vehemently contended that since there is an insurance coverage, the appellant-insurance Company is liable to pay compensation and the insurance policy, which was marked as Ex.R7, is not a genuine one and it is also liable to be rejected. On the side of the Administrative Officer of the appellant-Insurance Company was examined as R.W.2 and she has filed an affidavit. Paragraph No.3 of the affidavit is extracted hereunder: “3. I further submit that the above vehicle bearing registration number TN-38-A-4432 is insured with this respondent vide policy number 171600/31/05/02/00000024, for the period from 05.04.2005 to 04.04.2006. This policy taken by the insured i.e. The 1st respondent herein is under Private Car-Liability Policy (Act Policy) only. According to the said policy the insured has paid a premium of Rs.700/- for third party basic and a sum of Rs.25/- for W.C. To one employee. Thus a total premium of Rs.725/- was collected under the Private Car liability policy. The said policy is filed herewith and the same may be marked as Exhibit R-1.” 14. The Insurance Policy, which has been marked as Ex.R7 and the same is extracted hereunder: PRIVATE CAR LIABILITY ONLY POLICY Policy No:171600/31/05/02/00000024 Vehicle No.TN-38-A-4432 (DUPLICATE) PERIOD OF INSURANCE From 00.00 Hrs on 05/04/2005 To Midnight on 04/04/2006 (DUPLICATE) This policy is subjected to terms and conditions and IMT Endorsements printed herein/attached hereto. SCHEDULE OF PREMIUM B:T.P – BASIC 700.00WC to employee 1 25.00 Stamp Duty Total Liability Premium Rs.725.00 WARRANTEDE THAT INCASE OF DISHONOUR OF PREMIUM CHEQUE, THIS DOCUMENT STANDS AUTOMATICALLY CANCELLED “AB-INITIO” IMPORTANT NOTICE THE INSURED IS NOT INDEMNIFIED IF THE VEHICLE IS USED OR DRIVEN OTHERWISE THAN IN ACCORDANCE WITH THIS SCHEDULE. SCHEDULE OF PREMIUM B:T.P – BASIC 700.00WC to employee 1 25.00 Stamp Duty Total Liability Premium Rs.725.00 WARRANTEDE THAT INCASE OF DISHONOUR OF PREMIUM CHEQUE, THIS DOCUMENT STANDS AUTOMATICALLY CANCELLED “AB-INITIO” IMPORTANT NOTICE THE INSURED IS NOT INDEMNIFIED IF THE VEHICLE IS USED OR DRIVEN OTHERWISE THAN IN ACCORDANCE WITH THIS SCHEDULE. ANY PAYMENT MADE BY THE COMPANY BY RSON OF WIDER TERMS APPEARING IN THE CERTIFICATE IN ORDER TO COMPLY WITH THE MOTOR VEHICLE ACT, 1988 IS RECOVERABLE FROM THE INSURED. SEE THE CLAUSE HEADED “AVOIDANCE OF CERTAIN TERMS AND RIGHT OF RECOVERY”. FOR LEGAL INTERPRETATION, ENGLISH VERSION WILL HOLD GOOD. Date of proposal and declaration:05/04/2002 IN WITNESS WHEREOF, this policy has been signed at Coimbatore on this 03rd day of August 2011 For and on behalf of United India Insurance Co. Ltd. Affix Policy Stamp here Duly Constituted Attorney 15. On perusal of the policy, it was issued for the period from 05.04.2005 to 04.04.2006 the insured has paid a premium of Rs.700/- for third party basic and a sum of Rs.25 for W.C. to one employee and thus a total sum of Rs.725/- was paid. In the said policy, it is seen that the date of proposal and declaration was made on 05.04.2002 and the policy was signed only on the 3rd day of August 2011. There are so many contradictions and the variations in the policy produced on the side of the appellant-Insurance Company. It was certified as true copy by Mr.A.Ramanathan, Senior Divisional Manager. Since so many variations and contradictions are there, the said policy cannot be accepted as a genuine one. Further, it is the case of the appellant that the policy is covered to one employee of respondent No.4. It is the admitted case of both the parties that at the time of the accident, the deceased Damodharan was an employee of the 4th respondent. In the policy, does not specifically state the clause of the employee viz., driver and cleaner and it was mentioned only employee alone. It is also not the case of the appellant that they have already paid compensation to one employee of the 4th respondent in the accident. In view of the above stated reasons, the argument of the appellant that the appellant/Insurance Company not liable to pay compensation is liable to be rejected. 16. The 1st respondent deposed in his cross examination that. In view of the above stated reasons, the argument of the appellant that the appellant/Insurance Company not liable to pay compensation is liable to be rejected. 16. The 1st respondent deposed in his cross examination that. “TAMIL” According to P.W.1 evidence, the date of birth of the deceased was 1957. The accident occurred on 24.01.2006. Hence, at the time of the accident, the age of deceased Damodharan was 49 years. The postmortem certificate also stated that the age of the deceased was 49. Therefore, this Court fixed the age of the deceased a5 49 years at the time of accident. 17. The Tribunal rightly fixed the monthly income of the deceased at Rs.39,690/-. However, the Tribunal did not deduct statutory liability of the income tax amount of Rs.33,000/-, which was paid by the deceased, according to P.W.1's evidence. Therefore, by deducting income tax amount, the compensation for loss of income should be recalculated. As per the principle laid down in the judgment of the Honourable Supreme Court in Sarla Verma and others Vs. Delhi Transport Corporation and another reported in 2009 (2) TN MAC 1, the Tribunal correctly adopted the multiplier 13' and the same is acceptable. Since there are four claimants, the Tribunal has correctly deducted 1/3rd amount towards personal expenses of the deceased and the same is acceptable. The loss of income is recalculated as follows: (39,690X12)-33,000X2/3X13=38,41,760/-. Therefore, the loss of income awarded by the Tribunal is hereby reduced to Rs.38,41,760/-. Further, the Tribunal awarded a sum of Rs.5,000/- towards transport charges; a sum of Rs.5,000/- towards funeral expenses; a sum of Rs.5,000/- towards loss of consortium and a sum of Rs.15,000/- towards loss of love and affection, which are all very reasonable and the same is confirmed. 18. Thus, in the above said circumstances, we are of the considered view that the compensation has to be re-assessed as follows:- Loss of dependency Rs.38,41,760/- Transport Charges Rs. 5,000/- Funeral expenses Rs. 5,000/- Loss of Consortium Rs. 5,000/- Loss of love and affection Rs. 15,000/- Total Rs.38,71,760/- This Court fixes the compensation at Rs.38,71,760/-. Since the 1st respondent has received a sum of Rs.5,00,000/- from the 4th respondent-owner of Tempo Traveller as per Ex.R2 and after deducting Rs.5,00,000/- from the total compensation of Rs.38,71,760/-, the appellant-Insurance Company is liable to pay Rs.33,71,760/- to the respondents 1 to 3 and the 5th respondent / mother of the deceased. 19. Since the 1st respondent has received a sum of Rs.5,00,000/- from the 4th respondent-owner of Tempo Traveller as per Ex.R2 and after deducting Rs.5,00,000/- from the total compensation of Rs.38,71,760/-, the appellant-Insurance Company is liable to pay Rs.33,71,760/- to the respondents 1 to 3 and the 5th respondent / mother of the deceased. 19. In the result, the Civil Miscellaneous Appeal is allowed in part and the award passed by the Tribunal in M.C.O.P.No.437 of 2007 is modified and the compensation of Rs.36,57,760/- awarded by the Tribunal is reduced to Rs.33,71,760/-. The reduced compensation is payable with interest at the rate of 7.5% per annum along with proportionate costs awarded by the Tribunal. The reduced compensation shall be apportioned amongst the respondents 1 to 3 and 5/claimants as per the ratio ordered by the Tribunal. No costs. Consequently, connected Miscellaneous Petition is closed. 20. The appellant-United India Insurance company Limited is directed to deposit the modified compensation amount along with accrued interest within a period of four weeks from the date of receipt of a copy of this judgment, after deducting the amount already deposited, if any. The respondents 1 to 3 and 5/claimants are permitted to withdraw their respective amounts, after deducting the amount already withdrawn, if any.