JUDGMENT : P. Rajamanickam, J. (Prayer: Appeal is filed under Section 173 of Motor Vehicles Act, 1988 against the fair and decretal order dated 06.10.2018 made in M.C.O.P. No.43 of 2017 on the file of the Motor Accidents Claims Tribunal [(Additional District Judge) (Fast Track Court)], Theni.) 1. This Civil Miscellaneous Appeal has been filed by the second respondent /Insurance Company against the order/award passed by the Motor Accident Claims Tribunal [(Additional District Judge) (Fast Track Court)], Theni, in M.C.O.P. No.43 of 2017, dated 06.10.2018. 2. The respondents 1 & 2 herein have filed M.C.O.P.No.43 of 2017 under Sections 140, 141, 142 and 163B, 166 and 182-A of the Motor Vehicles Act, 1988, claiming compensation of Rs.50,00,000/- with interest at the rate of 15% per annum for the death of one Arunkumar, who died in a road traffic accident. The learned Motor Accidents Claims Tribunal has partly allowed the said petition, directing the appellant herein/Insurance Company to pay a compensation of Rs.32,88,000/- with interest at the rate of 7.5% per annum from the date of filing of the petition till the date of realization and also directed to pay the proportionate costs. Aggrieved by the same, the Insurance Company has filed the present civil miscellaneous appeal. 3. For the sake of convenience, the parties are referred to as described before the Tribunal. 4. The averments made in the claim petition are in brief as follows:- The first petitioner is the wife and the second petitioner is the minor daughter and respondents 3 and 4 are the parents of the deceased Arunkumar. On 15.12.2016 at about 03.15 p.m, when the deceased Arunkumar was riding his two wheeler bearing Regn.No.39W 4078, to fill the petrol in petrol bunk in Coimbatore Town on Trichy Main Road, from west to east direction, the driver of a tanker lorry bearing Regn.No.TN-02-S-2065, which belongs to the first respondent driven the said lorry on the same direction in a rash and negligent manner and hit against the two wheeler of the deceased Arunkumar. Due to the said accident, the deceased Arunkumar was thrown away from the two wheeler and fallen on the road and sustained serious injuries. Immediately after the accident, the deceased was taken to Government Hospital, Coimbatore for treatment, where he was declared as 'brought dead'. Due to the said accident, the deceased Arunkumar was thrown away from the two wheeler and fallen on the road and sustained serious injuries. Immediately after the accident, the deceased was taken to Government Hospital, Coimbatore for treatment, where he was declared as 'brought dead'. With regard to the said occurrence, a case was registered against the driver of the said tanker lorry in the Soolur Police Station in Cr.No.968/2016 under Sections 279 and 304(A) of I.P.C. The said lorry belongs to the first respondent and hence, the first respondent is vicariously liable to pay compensation on account of the death of the said Arunkumar. Since the said lorry was duly insured with the second respondent, on behalf of the first respondent, the second respondent is liable to pay the compensation. At the time of accident, the deceased was aged about 29 years. He was hale and healthy and he was employed in a private company namely Eagle Fleet Services and earned Rs.33,738/- per month. The entire family was depending upon his income. Since he suddenly died in an accident, the petitioners and the respondents 3 and 4 are entitled to a compensation of Rs. 50,00,000/-. 5. The first respondent/owner of the tanker lorry remained exparte. The second respondent/Insurance Company alone contested the petition by filing counter. 6. The averments made in the counter filed by the second respondent/Insurance Company are in brief as follows:- The owner of the motor vehicle, which was driven by the deceased at the time of accident is a necessary party to the case, but, he has not been added as a party. Hence, the petition is bad for non-joinder of necessary party. The accident did not occur due to the fault of the first respondent's driver. The first respondent's driver had driven the tanker lorry bearing Regn.No.TN-02-S-2065 in a normal speed by observing traffic rules, but the deceased, without wearing helmet and without having insurance policy for the two wheeler, had driven the motor cycle in a rash and negligent manner and suddenly crossed the road without noticing the movement of the first respondent's vehicle and fell into the first respondent's vehicle and sustained injuries. So, the first respondent's driver is not responsible for the said accident. The age, occupation and income of the deceased are denied. The petitioners and the respondents 3 and 4 were not depending upon the income of the deceased. So, the first respondent's driver is not responsible for the said accident. The age, occupation and income of the deceased are denied. The petitioners and the respondents 3 and 4 were not depending upon the income of the deceased. The compensation claimed is highly excessive and therefore, the second respondent prayed to dismiss the petition. 7. The respondents 3 and 4 in their counter statement supported the case of the petitioners and they also claimed compensation. 8. During enquiry, on the side of the petitioners, the first petitioner examined herself as P.W.1 and one more witness was examined as P.W.2. They have marked exhibits Ex.P.1 to P.9 as exhibits. On the side of the respondents, neither oral nor documentary evidence was adduced. 9. The learned Tribunal, after considering the materials placed before it, found that the accident occurred due to the rash and negligent act of the driver of a tanker lorry bearing Regn.No.TN-02-S-2065, which belongs to the first respondent. It also found that though the petitioners claimed that the deceased Arunkumar was getting a salary of Rs.33,738/- per month, they failed to prove the same by producing any vouchers or pay slip and hence, it has notionally fixed the monthly income of the deceased at Rs.15,000/-. Finally taking into consideration the age of the deceased, the Tribunal, awarded Rs.32,88,000/- as compensation and directed the second respondent to pay the aforesaid amount with interest at the rate of 7.5% per annum from the date of filing of the petition till the date of realization and also directed to pay the proportionate costs. Aggrieved by the same, the second respondent/Insurance Company has filed the present civil miscellaneous appeal. 10. Heard Mrs.K.R.Shivashankari for Mr.S.Srinivasa Raghavan, learned counsel for the appellant/Insurance Company and Mr.K.Suresh Kumar, learned counsel for the respondents 1 & 2/claimants. 11. The learned counsel for the appellant has submitted that the learned Tribunal erred in accepting the case of the claimants. She further submitted that in view of the decision of the Hon'ble Supreme Court of India in United India Insurance Company Limited Vs Shila Datta and Others reported in 2011 (2) TNMAC 481 (SC), leave under Section 170 of the Motor Vehicles Act is not required to be obtained by the Insurance Company. She further submitted that in view of the decision of the Hon'ble Supreme Court of India in United India Insurance Company Limited Vs Shila Datta and Others reported in 2011 (2) TNMAC 481 (SC), leave under Section 170 of the Motor Vehicles Act is not required to be obtained by the Insurance Company. She further submitted that the learned Tribunal has failed to consider that the respondents 4 and 5 have filed separate claim petition before the Motor Accidents Claims Tribunal, Coimbatore, which is still pending. She further submitted that the learned Tribunal has failed to consider that at the time of accident, the deceased did not wear helmet and thereby he was guilty of contributory negligence. She further submitted that the Tribunal ought not to have fixed notional monthly income at Rs.15,000/- for the deceased. She further submitted that in any event, the compensation awarded by the learned Tribunal is excessive and arbitrary and therefore, she prayed to allow the civil miscellaneous appeal and dismiss the claim petition. 12. Per contra, the learned counsel for the respondents 1 & 2/ claimants has submitted that the claimants have proved, that the accident occurred due to the negligent act of the driver of the tanker lorry bearing Regn.No.TN-02-S-2065, by examining the eye witness as P.W.2. He further submitted that the oral evidence of P.W.2 is corroborated by the FIR (Ex.P.1), MVI report (Ex.P.3) and charge sheet/final report (Ex.P.4). He further submitted that to controvert the evidence of P.W.2, neither the owner of the tanker lorry nor the Insurance Company/appellant herein adduced any evidence. He further submitted that the post mortem certificate also would show that the deceased died due to multiple injuries and taking into consideration the aforesaid facts, the learned Tribunal has rightly held that the accident occurred only due to the rash and negligent act of the driver of the tanker lorry. He further submitted that the learned Tribunal, taking into consideration the evidence of P.W.1 and age of the deceased, has rightly fixed notional income at Rs.15,000/- and awarded compensation of Rs.32,88,000/- including compensation on the conventional heads. He further submitted that merely because the respondents 4 and 5 have filed a separate petition for compensation, it cannot be said that the petitioner's claim petition has to be dismissed. He further submitted that merely because the respondents 4 and 5 have filed a separate petition for compensation, it cannot be said that the petitioner's claim petition has to be dismissed. He further submitted that the compensation awarded by the learned Tribunal is just and proper compensation and there is no need to interfere with the award passed by the learned Tribunal and therefore, he prayed to dismiss the present civil miscellaneous appeal. 13. This Court has carefully considered the rival submissions made on either side and perused the documents carefully. 14. The appellant/Insurance Company has not disputed the fact that on 15.12.2016 at about 03.15 p.m, when the deceased Arunkumar was riding a two wheeler on Trichy Main road, Coimbatore, he met with an accident with the tanker lorry bearing Regn.No.TN-02-S-2065, which belongs to the first respondent. The appellant has not disputed the fact that at the time of accident, the said lorry was driven by the driver of the first respondent. It is seen from the impugned award passed by the Tribunal that in order to prove the rashness and negligence on the part of the driver of the said lorry, the claimants have examined P.W.2. P.W.2 has deposed that he is an eye witness to the occurrence. His oral evidence is corroborated by the FIR (Ex.P.1), MVI report (Ex.P.3) and charge sheet/final report (Ex.P.4). To controvert the evidence of P.W.2, neither the owner of the tanker lorry nor the Insurance Company has adduced any evidence. The order passed by the learned Tribunal also shows that in the post mortem certificate, the cause of death was mentioned as “the deceased would appear to have died of multiple injuries”. So, it is clear that the deceased died due to the multiple injuries sustained by him in the accident. If the deceased died due to head injuries, the said fact would have been reflected in the post mortem certificate. But the doctor, who conducted post mortem did not say that the deceased would have died due to head injuries. Therefore, merely because the deceased did not wear helmet, at the time of accident, it cannot be said that if he wore helmet, he would not have died. Taking into consideration the aforesaid facts, the learned Tribunal has held that the accident has occurred due to the rash and negligent act of the driver of the first respondent's tanker lorry. Therefore, merely because the deceased did not wear helmet, at the time of accident, it cannot be said that if he wore helmet, he would not have died. Taking into consideration the aforesaid facts, the learned Tribunal has held that the accident has occurred due to the rash and negligent act of the driver of the first respondent's tanker lorry. This Court, on independent consideration of materials, is also of the view that the said accident was occurred due to the rash and negligent act of the driver of the first respondent's lorry. 15. The order passed by the Tribunal also shows that the claimants have not produced either birth certificate or school certificate to show the exact age of the deceased. Hence, the learned Tribunal relying upon the age mentioned in post mortem certificate (Ex.P.2) has fixed the age of the deceased as 29 years. The appellant has not disputed the age of the deceased. 16. A perusal of the order passed by the learned Tribunal also shows that the claimants have produced salary certificate and marked as Ex.P.9. But, the learned Tribunal did not accept the said salary certificate on the ground that no one was examined to prove the genuineness of the said certificate. However, the learned Tribunal taking into consideration the age and the profession of the deceased, oral evidence of P.W.1 and other documentary evidence, has notionally fixed the income of the deceased at Rs.15,000/-. Further, relying upon a Constitution Bench decision of the Honourable Supreme Court in National Insurance Company Limited Vs Pranay Sethi and Others reported in 2018 (1) LW 331 , the learned Tribunal has added 40% of the salary towards future prospects and fixed the monthly income of the deceased at Rs. 21,000/-. 17. In this case, the deceased was a married person. However, there are four dependent family members. Taking into consideration the aforesaid facts, the learned Tribunal relying upon the decision in Sarla Verma (Smt) and Others Vs Delhi Transport Corporation and Another reported in (2009) 6 SCC 121 , has rightly deducted ¼th of income for personal and living expenses of the deceased. 1/4th of Rs.21,000/- comes to Rs.5,250/- and after deducting the said amount, (21,000 – 5,250) it comes to Rs.15,750/-. As already stated that the age of the deceased at the time of accident fixed at 29. 1/4th of Rs.21,000/- comes to Rs.5,250/- and after deducting the said amount, (21,000 – 5,250) it comes to Rs.15,750/-. As already stated that the age of the deceased at the time of accident fixed at 29. The learned Tribunal, relying upon the decision of the Hon'ble Supreme Court in National Insurance Company Limited Vs Pranay Sethi and Others (cited supra), has applied multiplier of 17 and calculated Rs.15,750 x 12 x 17 = Rs. 32,13,000/- towards loss of dependency. Apart from the aforesaid amount, the learned Tribunal has awarded Rs.5,000/- towards transportation charges for taking the body to his native place to conduct his last rites and Rs.15,000/- towards funeral expenses and Rs.40,000/- towards loss of consortium to the wife and Rs.15,000/- towards loss of estate by following the decision of the Hon'ble Supreme Court in National Insurance Company Limited Vs Pranay Sethi and Others (cited supra). The learned Tribunal thus awarded the total compensation under the various heads as follows:- Sl.No Description Compensation awarded by the Tribunal 1. Transportation for taking the body Rs. 5,000/- 2. Funeral expenses Rs. 15,000/- 3. Loss of consortium of 1st petitioner Rs. 40,000/- 4. Loss of estate Rs. 15,000/- 5. Loss of dependency Rs.32,13,000/- Total Rs.32,88,000/- (Totally a sum of Rupees Thirty two lakhs Eighty eight thousand only) 18. This Court, taking into consideration the age of the deceased, his income and dependency, is of the view that the compensation awarded by the learned Tribunal, is just compensation and therefore, the said order is to be upheld and hence, this Court does not find any merit in the appeal. Even otherwise, the appeal filed by the Insurance Company is not maintainable on the ground that it has not obtained any permission under Section 170(b) of the Motor Vehicles Act before the Tribunal to contest the case on merits. 19. Even otherwise, the appeal filed by the Insurance Company is not maintainable on the ground that it has not obtained any permission under Section 170(b) of the Motor Vehicles Act before the Tribunal to contest the case on merits. 19. In United India Insurance Company Limited Vs Shila Datta and Others (cited supra), though a three-Judge Bench of the Hon'ble Supreme Court has held that if the insurer is already a respondent (having been impleaded as party respondent), it need not seek permission of the Tribunal under Section 170 of the Act to raise grounds other than those mentioned in Section 149(2) of the Motor Vehicles Act and also held that the insurer can file a joint appeal along with the owner of the vehicle, but with regard to the question as to whether, the Insurer alone can file appeal, the Hon'ble Supreme Court gave direction to post the said matter before the Larger Bench. The aforesaid decision has been clarified in the subsequent decision in Josphine James Vs United India Insurance Company Limited and Another (2013) 16 SCC 711 , wherein the Hon'ble Supreme Court, has held that in the absence of permission obtained by the Insurance Company from the Tribunal to avail the defence of the insured, it is not permitted to contest the case on merits. The relevant portions of the said judgment are extracted hereunder: “10. Aggrieved by the impugned judgment and award passed by the High Court in MAC Appeal no.433/2005 and the review petition, the present appeal is filed by the appellant urging certain grounds and assailing the impugned judgment in allowing the appeal of the Insurance Company without following the law laid down by this Court in Nicolletta Rohtagis case (supra) and instead, placing reliance upon the Bhushan Sachdevas case (supra). Nicolletta Rohtagis case was exhaustively discussed by a three judge bench in the case of United India Insurance Company Vs. Shila Datta. Though the Court has expressed its reservations against the correctness of the legal position in Nicolletta Rohtagi decision on various aspects, the same has been referred to higher bench and has not been overruled as yet. Hence, the ratio of Nicolletta Rohtagis case will be still applicable in the present case. Shila Datta. Though the Court has expressed its reservations against the correctness of the legal position in Nicolletta Rohtagi decision on various aspects, the same has been referred to higher bench and has not been overruled as yet. Hence, the ratio of Nicolletta Rohtagis case will be still applicable in the present case. The appellant claimed that interference by the High Court with the quantum of compensation awarded by the Tribunal in favour of appellant and considerably reducing the same by modifying the judgment of the Tribunal is vitiated in law. Therefore, the impugned judgments and award are liable to be set aside. ................................................................................................... 19. The Insurance Company has challenged the correctness of the judgment of the Tribunal before the High Court by filing an appeal. The same was partly allowed vide judgment dated 8.1.2007 by reducing the monthly contribution given by the deceased son to his mother at Rs.3750/- for her maintenance holding that the mother would not be entitled to more than 50% of the income of the deceased. The sisters of the deceased did not join the appellant as claimants. Hence, the High Court held that no compensation could be awarded to them. Therefore, the High Court awarded a compensation of Rs.6,75,000/- by applying a multiplier of 15 to the multiplicand. 20. The said order was reviewed by the High Court at the instance of the appellant in view of the aforesaid decision on the question of maintainability of the appeal of the Insurance Company. The High Court, in the review petition, has further reduced the compensation to Rs. 4,20,000/- from Rs.6,75,000/- which was earlier awarded by it. This approach is contrary to the facts and law laid down by this Court. The High Court, in reducing the quantum of compensation under the heading of loss of dependency of the appellant, was required to follow the decision rendered by three judge Bench of this Court in Nicolletta Rohtagi case (supra) and earlier decisions wherein this Court after interpreting Section 170 (b) of the M.V. Act, has rightly held that in the absence of permission obtained by the Insurance Company from the Tribunal to avail the defence of the insured, it is not permitted to contest the case on merits. The aforesaid legal principle is applicable to the fact situation in view of the three judge bench decision referred to supra though the correctness of the 15/18 http://www.judis.nic.in C.M.A(MD)No.208 of 2020 aforesaid decision is referred to larger bench. This important aspect of the matter has been overlooked by the High Court while passing the impugned judgment and the said approach is contrary to law laid down by this Court. 21. In view of the aforesaid reasons, the Insurance Company is not entitled to file appeal questioning the quantum of compensation awarded in favour of the appellant for the reasons stated supra. In the absence of the same, the Insurance Company had only limited defence to contest in the proceedings as provided under Section 149 (2) of the M.V. Act. Therefore, the impugned judgment passed by the High Court on 13.1.2012 reducing the compensation to 4,20,000/- under the heading of loss of dependency by deducting 50% from the monthly income of the deceased of Rs. 5,000/- and applying 14 multiplier, is factually and legally incorrect. The High Court has erroneously arrived at this amount by applying the principle of law laid down in Sarla Verma v. Delhi Transport Corporation instead of applying the principle laid down in Baby Radhika Guptas case (supra)regarding the multiplier applied to the fact situation and also contrary to the law applicable regarding the maintainability of appeal of the Insurance Company on the question of quantum of compensation in the absence of permission to be obtained by it from the Tribunal under Section 170 (b) of the M.V. Act. In view of the aforesaid reason, the High Court should not have allowed the appeal of the Insurance Company as it has got limited defence as provided under section 149(2) of the M.V. Act. Therefore, the impugned judgment and award is vitiated in law and hence, is liable to be set aside by allowing the appeal of the appellant.” 20. In this case, it is seen from the appeal memorandum that the appellant/Insurance Company did not obtain permission under Section 170(b) of the Motor Vehicles Act to avail the defence of the insured. In view of the aforesaid decision of the Hon'ble Supreme Court, in Josphine James Vs United India Insurance Company Limited and Another (cited supra), the appeal filed by the Insurance company questioning the quantum of compensation is not maintainable. 21. In view of the aforesaid decision of the Hon'ble Supreme Court, in Josphine James Vs United India Insurance Company Limited and Another (cited supra), the appeal filed by the Insurance company questioning the quantum of compensation is not maintainable. 21. For the aforesaid reasons, this Civil Miscellaneous Appeal is liable to be dismissed. Accordingly, the same is dismissed confirming the order passed by the learned Tribunal in M.C.O.P.No.43 of 2017, dated 06.10.2018. There is no order as to costs.