JUDGMENT : (Prayer: Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988, against the award, dated 14.09.2011, passed in M.C.O.P.No. 552 of 2006 by the Motor Accident Claims Tribunal/III-Additional Subordinate Court, Madurai.) 1. The appellant/Insurance Company has filed this appeal questioning the liability as well as the quantum passed by the Tribunal. 2. It is stated in the claim petition that on 23.08.2005 at 04.45 p.m. the claimant was travelling in the bus bearing Reg.No.TN-55-N-0306, owned by the 2nd respondent/Transport Corporation. While the bus was proceeding from south to north at Trichy-Madurai Main Road, a heavy vehicle lorry bearing Registration No.HR-63-A-4510 with trailer, owned by the 3rd respondent and insured with the appellant/Insurance Company, was coming from north to south direction. Both the vehicles had driven by the respective drivers in a rash and negligent manner with uncontrollable speed hugging to the centre of the Road. While so, the heavy vehicle hit against the side back portion of the bus. The iron angles projecting outside of the lorry penetrated the bus, due to which several passengers of the bus sustained multiple injuries, including the claimant and out of them, two passengers died instantaneously. According to the claimant, due to the accident, her front portion of the maxillary bone and her right hand humerus fractured and incisor teeth root shaken which caused disfigurement of her face and she has got aborted 3 months baby. Thus, the accident was caused by the drivers of both the 2nd and 3rd respondents herein and therefore, they are jointly and severally liable to pay the compensation. 3. Before the Tribunal, on the side of the claimant, the injured claimant herself was examined as PW1 and the doctor, who issued disability certificate, was examined, as PW2. Exs.P1 to P2 were marked. On the side of the appellant as well as the Transport Corporation, no oral and documentary evidence have been marked. 4. The Tribunal, after trial, has concluded that as the FIR is registered only against the driver of the 3rd respondent, the 3rd respondent alone is liable for the accident and as the 3rd respondent's vehicle is insured with the appellant, the appellant should satisfy the award. 4. The Tribunal, after trial, has concluded that as the FIR is registered only against the driver of the 3rd respondent, the 3rd respondent alone is liable for the accident and as the 3rd respondent's vehicle is insured with the appellant, the appellant should satisfy the award. The Tribunal has awarded a sum of Rs.18,000/- towards partial loss of earning; Rs.3,000/- towards transportation; Rs.15,000/- towards extra nourishment; Rs.85,470/- towards medical expenses; Rs.15,000/- towards pain and sufferings; Rs.66,700/- towards compensation for partial disability; totalling Rs.2,03,170/- as compensation. Questioning the liability as well as the quantum of compensation, the appellant has filed this appeal. 5. The learned counsel for the appellant/Insurance Company submitted that the Tribunal only based on the registration of the FIR against the 3rd respondent's driver has concluded that the 3rd respondent driver alone caused the accident. The Tribunal has lost sight of the oral evidence of PW1. PW1 has categorically stated in the claim petition as well as during her cross examination that both the drivers of the vehicles caused the accident. Therefore, the liability fixed by the Tribunal only against the 3rd respondent's driver and vicariously on the appellant cannot be sustained. He would further submit that the Tribunal has awarded a sum of Rs.2300/- for per percentage of disability, which is on the higher side and therefore, the award passed by the Tribunal is liable to be reduced. 6. The learned counsel appearing for the first respondent/claimant submitted that though the claimant claimed a sum of Rs.9 lakhs as compensation, the Tribunal has awarded only a lesser amount as compensation and therefore, the award passed by the Tribunal need not be interfered with. 7. The learned counsel appearing for the 2nd respondent/Transport Corporation submitted that the FIR has been registered only against the 3rd respondent's driver and therefore, the Tribunal has rightly fixed entire liability on the 3rd respondent's driver and vicariously on the appellant. He would further submit that in respect of the very same incident, the Transport Corporation has filed M.C.O.P.No.267 of 2006 against the appellant and the 3rd respondent herein claiming damages caused to the bus and the Tribunal has awarded a sum of Rs.49,769/- as compensation on 01.10.2007 fixing the entire liability on the appellant and therefore, now the appellant cannot be permitted to challenge the findings of negligence. Thus, he prayed to dismiss the appeal. 8. Thus, he prayed to dismiss the appeal. 8. Heard the learned counsel for both sides and perused the records carefully. 9. Admittedly, in this case, the claimant has categorically stated in both the claim petition as well as in the cross examination that the accident had happened due to negligent driving of the drivers of the Transport Corporation as well as the third respondent. It is seen that the accident had happened, while both the vehicles crossing each other at a great speed. There is no independent witness examined on either side, with regard to the accident. There is also no contra evidence produced by the appellant as well as by the Transport Corporation. Since the FIR was registered only against the driver of the 3rd respondent, the Tribunal, without even going into the evidence of PW1, has come to the conclusion that the accident had happened due to negligent driving of the driver of the 3rd respondent. It is a settled law that the FIR is not a conclusive proof. Only based on the FIR, the entire liability cannot be fixed on the person against whom the FIR registered. Therefore, the said finding of the Tribunal cannot be accepted. Considering the evidence of PW1 and also the manner of the accident, this Court is of the view that both the drivers of the appellant as well as Transport Corporation are equally liable for the accident. 10. Though the learned counsel for the Transport Corporation contended that for the very same accident, the Transport Corporation filed M.C.O.P.No.267 of 2006 claiming damages caused to the bus and the same was awarded fixing liability on the 3rd respondent and vicariously on the appellant, the Transport Corporation has not produced the award passed in the said MCOP, in order to show that under what circumstances, such conclusion has been arrived at. The learned counsel for the appellant is also not able to say as to whether any appeal has been filed against the said award. However, it is seen that the award in M.C.O.P.No.267 of 2006 has been passed on 01.10.2007, i.e., much prior to the recording of evidence in this case. It is also seen that in this case, the Transport Corporation has not produced the award passed in M.C.O.P.No.267 of 2006 even before the Tribunal. However, it is seen that the award in M.C.O.P.No.267 of 2006 has been passed on 01.10.2007, i.e., much prior to the recording of evidence in this case. It is also seen that in this case, the Transport Corporation has not produced the award passed in M.C.O.P.No.267 of 2006 even before the Tribunal. Even assuming that in M.C.O.P.No.267 of 2006 the Tribunal has fixed entire liability on the 3rd respondent and it was not disputed by the appellant by filing any appeal, as the evidence of PW1 has been recorded after the award stated to be passed in M.C.O.P.No.267 of 2006 and there is no contra evidence produced, this Court has no hesitation to hold that both the appellant and the Transport Corporation are equally liable to satisfy the award. 11. So far as the quantum of compensation is concerned, it is not in dispute that the claimant has sustained multiple fractures, for which she had undergone surgeries and the movement of the shoulder joints restricted. PW2 – Dr.Chidambaram, who gave disability certificate to the claimant, has categorically stated in his evidence that the claimant has sustained 29% partial permanent disability and that the claimant is unable to do her ordinary works now as she was doing before the accident. It is seen that though the claimant has produced Ex.P9 – Salary Certificate in order to show that she was working in a Private School and earning Rs.7,000/- per month, the Tribunal has taken only Rs.3,000/- p.m. as the notional income of the claimant. According to the appellant, Rs.2,300/- awarded by the Tribunal for per percentage of disability is on the higher side. The Hon'ble Supreme Court in the decision in Vimal Kanwar Vs. Kishore Dan, reported in 2013 (1) TN MAC 641 (SC), has awarded Rs.3,000/- per percentage of disability. Considering the year of the accident, this Court is of the view that the award passed by the Tribunal under the head of disability by fixing Rs.2,300/- per percentage of disability cannot be stated to be excessive. Hence, this Court is not inclined to interfere with the award passed by the Tribunal in respect of the quantum. 12. Considering the year of the accident, this Court is of the view that the award passed by the Tribunal under the head of disability by fixing Rs.2,300/- per percentage of disability cannot be stated to be excessive. Hence, this Court is not inclined to interfere with the award passed by the Tribunal in respect of the quantum. 12. In view of the above, the finding of the Tribunal in respect of the liability alone is set aside and this Court holds that the drivers of both the 3rd respondent and the Transport Corporation are equally liable for causing the accident and accordingly, both the appellant as well as the 2nd respondent/Transport Corporation are equally liable to satisfy the award passed by the Tribunal. In other respects, the award passed by the Tribunal is confirmed. The appellant/Insurance Company is directed to deposit the 50% of the award amount with accrued interest and costs, less the amount already deposited, if not already deposited, within a period of eight weeks from the date of receipt of a copy of this judgment. The 2nd respondent/Transport Corporation is also directed to deposit 50% of the award amount with accrued interest and costs within a period of eight weeks from the date of receipt of a copy of this judgment. On such deposit being made, the claimant is permitted to withdraw the entire award amount with accrued interest and costs, less the amount already withdrawn if any, by filing a petition before the Tribunal. 13. In the result, the Civil Miscellaneous Appeal is partly allowed. No costs. Consequently, connected miscellaneous petition is closed.