JUDGMENT : Challenging the finding of negligence fixed on the driver of the Lorry bearing registration No.TN-57-T-2979 insured with them and the liability fastened on them, the appellant/Messer's Royal Sundaram Alliance Insurance Company Ltd., Chennai has filed CMA(MD)Nos.462 & 463/2015. Not satisfied with the quantum of compensation, the claimants have filed CMA(MD)Nos.198 & 199/2018 seeking enhancement on the quantum. As pleadings and submissions are common, all the appeals are heard together and disposed by this common judgment. 2. It is the case of the claimants that on 31.01.2011 about 05.45 a.m., while the deceased Selvaraj and the injured claimant/J.Sathish were travelling in a Lorry bearing registration No.TN-57-T-2979 insured with the appellant company in CMA(MD)Nos.462 & 463/2015, on Kannur to Mangalore Road, at Kalliassery Amsom near Toddy Shop, the driver of the Lorry drove the same in a rash and negligent manner and dashed against the backside of the Lorry bearing registration No.KA-01-11-2388 which was parked without any signal and without following traffic rules and caused the accident. In the said accident, the said Selvaraj and J. Sathish sustained grievous injuries and immediately, Selvaraj was taken to Mangalore Government Wenlock Hospital, where, he was declared dead. For the death of Selvaraj, his legal representatives have filed MCOP.No.1240/12 on the file of the Motor Accidents Claims Tribunal, (Additional District and Sessions Court), Dindigul, claiming compensation of Rs.10,00,000/- and the injured J.Sathish filed MCOP.No.1241/12 on the file of the Motor Accidents Claims Tribunal, (Additional District and Sessions Court), Dindigul, claiming compensation of Rs.10,00,000/- for the injuries sustained by him in the alleged accident. 3. The appellant/Messer's Royal Sundaram Alliance Insurance Company Ltd., filed separate counter affidavits contending that the accident occurred only due to the negligent act of the driver of the parked Lorry bearing registration No.KA-01-11-2388 and that the Lorry insured with them is a goods carriage vehicle and the deceased Selvaraj and the injured J. Sathish travelled in the Lorry as unauthorised passengers in violation of the policy conditions and therefore, the insurance company is not liable to pay the compensation. The driver of the Lorry bearing registration No.TN-57-T-2979 insured with the appellant company filed counter stating that the accident occurred due to the negligent act of the driver of the Lorry bearing registration No.KA-01-11-2388 by parking the same on the road without any signal. M/s. Bajaj Alliance Insurance Co. The driver of the Lorry bearing registration No.TN-57-T-2979 insured with the appellant company filed counter stating that the accident occurred due to the negligent act of the driver of the Lorry bearing registration No.KA-01-11-2388 by parking the same on the road without any signal. M/s. Bajaj Alliance Insurance Co. Ltd., Coimbatore/insurer of the Lorry bearing registration No.KA-01-11-2388 also filed counter contending that the insurance policy pertaining to the said vehicle stood cancelled as early as on 10.10.2010 for non payment of premium and on the date of accident viz., 31.01.2011, no insurance policy was in force and therefore, they are not liable to pay the compensation. 4. Before the Tribunal, on the side of the claimants, four witnesses were examined as PWs 1 to 4 and 31 documents were marked as Exs.P1 to P31. On the side of the appellant insurance company, three witnesses were examined as RWs1 to 3 and 10 documents were marked as Exs.R1 to R10. 5. The Tribunal considering the oral and documentary evidence adduced on either side held that the driver of the Lorry insured with the appellant company was responsible for the accident and awarded compensation of Rs.7,93,000/- and Rs.4,25,000/- respectively with 7.5% interest per annum from the date of petition till the date of deposit. As against the said award, the present appeals have been filed. 6. Heard both sides and perused the records. 7. Perusal of record shows that the driver of the Lorry bearing registration No.KA-01-11-2388 namely, Murugesh, lodged a complaint on the file of Kannapuram Police Station, stating that the driver of the Lorry bearing registration No.TN-57-T-2979 insured with the appellant company, drove the same in a rash and negligent manner and hit his Lorry which was parked on the side of the road. Based on the said complaint, First Information Report has been registered in Crime No.26/2011 under Sections 279, 337 and 304-A IPC. The said FIR registered in Malayalam language, has been marked as Ex.P1 and English version of the same has been marked as Ex.P2. After investigation, charge sheet has been filed and translated copy of which has been marked as Ex.P5, wherein, the driver of the Lorry bearing registration No.TN-57-T-2979 insured with the appellant company has been made as accused stating that he is guilty of the offence under Sections 279, 338 and 304-A IPC. The injured claimant J.Sathish has been examined as PW2. After investigation, charge sheet has been filed and translated copy of which has been marked as Ex.P5, wherein, the driver of the Lorry bearing registration No.TN-57-T-2979 insured with the appellant company has been made as accused stating that he is guilty of the offence under Sections 279, 338 and 304-A IPC. The injured claimant J.Sathish has been examined as PW2. He is an eye witness to the accident. He has stated that the driver of the Lorry bearing registration No.TN-57-T-2979 insured with the appellant company drove the same in a rash and negligent manner and dashed against the parked Lorry bearing registration No.KA-01-11-2388. Before the Tribunal, the owner of the Lorry bearing registration No.KA-01-11-2388 remained exparte, but on behalf of the insurer of the said vehicle namely, M/s.Bajaj Alliance Insurance Co. Ltd., Coimbatore, one Aanandhu working as Assistant Manager in the said insurance company, has been examined as RW3. He has stated that the owner of the Lorry bearing registration No.KA-01-11-2388 issued a cheque for Rs.16,575/- to their company towards insurance premium for the said vehicle, but the same was returned as 'insufficient funds' which was informed to the owner vide notice in Ex.R6 and thereafter, on 10.07.2010, the policy in respect of the said Lorry stood cancelled for non payment of premium and the same has been intimated to the owner vide Ex.R7- Notice which was refused and returned by the owner and that has been marked as Ex.R8. Further, cancellation of the insurance policy was also intimated to the concerned Regional Transport Office vide Ex.R9 which was received and acknowledged vide Ex.R10- Acknowledgment card. The cancelled policy copy has been marked as Ex.R3 and from the perusal of the same, the Tribunal found that the said policy has been issued for the period between 13.7.2010 and 12.07.2011 for one year, but it was cancelled prior to the accident for non payment of premium and therefore, there was no coverage of insurance in respect of the Lorry bearing registration No.KA-01-11-2388 at the time of accident. 8. Though the appellant/Messer's Royal Sundaram Alliance Insurance Company Ltd., Chennai, contended that the accident occurred due to the driver of the Lorry bearing registration No.KA-01-11-2388 by parking the same on the road without any signal, no evidence has been let in to prove the said contention. 8. Though the appellant/Messer's Royal Sundaram Alliance Insurance Company Ltd., Chennai, contended that the accident occurred due to the driver of the Lorry bearing registration No.KA-01-11-2388 by parking the same on the road without any signal, no evidence has been let in to prove the said contention. Even the claimants had not pleaded that the accident occurred due to the negligent act of the driver of the parked Lorry and placed evidence to prove the same. Therefore, the Tribunal relying upon the oral testimony of PW2-eye witness, FIR and charge sheet, held that the accident had occurred due to the rash and negligent driving of the driver of the Lorry insured with the appellant. In claims cases, the test to find out negligence is preponderance of probability and testing the finding of the Tribunal on the above-said principle, this Court does not find any infirmity or perversity. Accordingly, the finding of the Tribunal regarding negligence is confirmed. 9. As regards the liability, though the appellant company contended that the deceased Selvaraj and J. Sathish travelled in the Lorry as gratuitous passengers, from the evidence of RW1-owner of the Lorry insured with the appellant, the Tribunal found that the deceased Selvaraj was appointed by RW1 as Cleaner in his Lorry on daily wages of Rs.300/- and that the injured claimant/J. Sathish was appointed as a Supervisor and he travelled in the Lorry as agent of the goods. Further, from the perusal of Ex-R1-insurance policy of the Lorry, the Tribunal found that the policy covers the salaried driver and cleaner and therefore, the deceased and injured claimant cannot be said to be gratuitous passengers travelled in the Lorry and accordingly, the Tribunal fastened the liability on the appellant. 10. As regards the quantum of compensation in CMA.198/18 is concerned, though the deceased earned Rs.300/- per day as seen from the evidence of RW1, considering the avocation of the deceased, Cleaner and that there would not be regular work for all days of a month, the Tribunal fixed the monthly income of the deceased at Rs.6,000/-. After deducting 1/3rd towards personal expenses and applying 16' multiplier, the Tribunal awarded loss of income at Rs.7,68,000/-. Apart from the above, the Tribunal awarded Rs.10,000/- towards loss of consortium; Rs.10,000/- towards loss of love and affection; Rs.5,000/- towards funeral expenses. Altogether, the Tribunal awarded Rs.7,93,000/- as compensation with 7.5% interest. 11. After deducting 1/3rd towards personal expenses and applying 16' multiplier, the Tribunal awarded loss of income at Rs.7,68,000/-. Apart from the above, the Tribunal awarded Rs.10,000/- towards loss of consortium; Rs.10,000/- towards loss of love and affection; Rs.5,000/- towards funeral expenses. Altogether, the Tribunal awarded Rs.7,93,000/- as compensation with 7.5% interest. 11. Perusal of record shows that the deceased died at the age of 31 years and no future prospects has been awarded as per the judgment of the Supreme Court in National Insurance Company Limited vs. Pranay Sethi and others (Special Leave Petition(Civil)No. 25590 of 2014 dated 31.10.2017). Therefore, as per the said judgment, if 40% of income is added towards future prospects, then the monthly income would be Rs.8,400/-. After deducting 1/4th towards the personal expenses of the deceased as per the judgment of the Hon'ble Supreme Court in Sarla Verma v. Delhi Transport Corporation, reported in 2009 (2) TN MAC 1 (SC), and applying 16' multiplier, the loss of income is calculated at Rs.12,09,600/-. But in the memorandum of appeal, the claimants have restricted their claim to Rs.2,07,000/-. Therefore, a sum of Rs.2,07,000/- is hereby awarded over and above the compensation of Rs.7,93,000/- awarded by the Tribunal. Therefore, the claimants in CMA.198/18 are entitled to total compensation of Rs.10,00,000/- with 7.5% interest from the date of petition till the date of deposit. 12. So far as the quantum of compensation in CMA.199/18 is concerned, the injured claimant would state that he sustained following injuries:- ''1.Sutured wound 2 cms on left shoulder. 2. Linear abrasion with scar on left forearm mid third. 3. Multiple abrasions over antero medical aspect of left thigh distal third. 4. 4x2 cms abrasion medical aspect of left knee, swelling, tenderness over lateral tibial condyle. 5. 4x3 cm abrasion on lateral aspect of left leg. 6. Absent left great toe with exposed proximal phalanx of great toe. Open wound exposing underlying soft tissue extending from head of first metatarsal to bail to treat toe on plantar aspect. 7. Blackening of 2nd toe upto middle phalanx. K wire in 2nd toe and transversely in heads of first and 2nd metatarsal. 8. 4 cms sutured wound over chin. Urinary catheter insitu. Sutured wound in lower lip and chin. Segmental lower anterior arch bar present to stablize lower anterior dentoolveolar fracture. Occlusion, mouth opening good. 9. two teeth fall down.'' 13. Blackening of 2nd toe upto middle phalanx. K wire in 2nd toe and transversely in heads of first and 2nd metatarsal. 8. 4 cms sutured wound over chin. Urinary catheter insitu. Sutured wound in lower lip and chin. Segmental lower anterior arch bar present to stablize lower anterior dentoolveolar fracture. Occlusion, mouth opening good. 9. two teeth fall down.'' 13. From the perusal of Exs.P12 and P13-wound certificates, the Tribunal found that the claimant took treatment as inpatient for more than two months and as outpatient for more than three months. The Doctor who examined the injured has been examined as PW4. He has deposed that the claimant sustained grievous injury in the left leg and first and second toes were cut and for the fracture of left knee, a rod was inserted with screws and x-rays of left knee revealed that there was mal-union of bones, due to which, the movement of left knee restricted to 30% and the claimant has to undergo another operation to remove the rod, for which, he will incur Rs.15,000/-. PW4 has further stated that due to the injuries, the claimant would find it difficult to sit in floor, squat, standing and walking for long time. PW4 has assessed the permanent disability at 46%, but the Tribunal reduced the same to 25% and awarded Rs. 50,000/- towards disability compensation by awarding Rs.2,000/- per percentage of disability. Apart from the above, the Tribunal awarded Rs.40,000/- towards pain and sufferings; Rs.5,000/- towards nutrition; Rs.5,000/- towards transportation; Rs.40,000/-(Rs.8,000x 5 months) towards loss of income during treatment and Rs.2,85,000/- towards medical bills. Altogether, the Tribunal awarded Rs.4,25,000/- as compensation with 7.5% interest. 14. The disability assessed by PW4 Doctor is 46%, but the Tribunal has fixed the same at 25%. It is well known that opinion of the experts cannot be interfered with, unless evidence contrary thereto is adduced. In this case, no such evidence has been let in and therefore, the Tribunal ought not to have reduced the percentage of disability. Hence, the disability percentage is fixed at 46% as assessed by PW4 Doctor. Considering the nature of injuries, this Court is inclined to award a sum of Rs.3,000/- for each percentage of disability as per the judgment of this Court in National Insurance Company Limited vs. G.Ramesh, reported in 2013 (2) TN MAC 583. Hence, the disability percentage is fixed at 46% as assessed by PW4 Doctor. Considering the nature of injuries, this Court is inclined to award a sum of Rs.3,000/- for each percentage of disability as per the judgment of this Court in National Insurance Company Limited vs. G.Ramesh, reported in 2013 (2) TN MAC 583. Accordingly, a sum of Rs.138,000/- is awarded towards disability compensation as against Rs.50,000/- awarded by the Tribunal. Considering the nature of injuries and the period of hospitalisation, the award of Rs.40,000/- towards pain and sufferings is enhanced to Rs. 50,000/-. The claimant took treatment as inpatient for more than two months and thereafter took treatment as outpatient for more than three months and therefore, the award of Rs.5,000/- each towards nutrition and transportation is increased to Rs.20,000/- each. The award towards loss of income during treatment and medial bills are not interfered with. The total compensation is as follows:- Disability compensation = Rs.1,38,000/- Pain and sufferings = Rs. 50,000/- Loss of income during treatment = Rs. 40,000/- Medical bills = Rs.2,85,000/- Transportation = Rs. 25,000/- Nutrition = Rs. 25,000/- -------------------------- Total = Rs.5,63,000/- (Less) Amount awarded by the Tribunal = Rs.4,25,000/- -------------------------- Enhanced compensation = Rs.1,38,000/- -------------------------- 15. In the result, the claimant in CMA.199/18 is entitled to enhanced compensation of Rs.1,38,000/- over and above the compensation of Rs.4,25,000/- awarded by the Tribunal with 7.5% interest. 16. In both the appeals, the appellant insurance company is directed to deposit the compensation of Rs.10,00,000/- and Rs.5,63,000/- with 7.5% interest per annum from the date of petition till the date of deposit, less the amount already deposited, if any, within a period of eight weeks from the date of receipt of a copy of this judgment. On such deposit, appellants 1, 4 and 5/major claimants in CMA.198/18 are permitted to withdraw their respective shares in the ratio apportioned by the Tribunal without filing any formal permission petition before the Tribunal. The appellant in CMA.199/18 is permitted to withdraw the entire amount with interest without filing any formal permission petition before the Tribunal. The shares of the appellants 2 and 3/minor claimants in CMA.198/18 shall be deposited in a Nationalised Bank till they attain majority. The interest accruing on such deposit is permitted to be withdrawn by the 1st appellant in CMA.198/18/mother of minors once in three months directly from the bank. The shares of the appellants 2 and 3/minor claimants in CMA.198/18 shall be deposited in a Nationalised Bank till they attain majority. The interest accruing on such deposit is permitted to be withdrawn by the 1st appellant in CMA.198/18/mother of minors once in three months directly from the bank. In the result, CMA(MD)Nos.462 & 463/2015 filed by the insurance company are dismissed, CMA(MD)No.198/18 is allowed and CMA(MD)No.199/2018 is partly allowed. No costs. Consequently, connected miscellaneous petitions are closed.