JUDGMENT : (Prayer: Appeals filed under Section 173 of the Motor Vehicles Act, 1988 against the Order and Decreetal Order dated 05.04.2019 passed in MCOP No. 320 of 2012 on the file of the Motor Accidents Claims Tribunal (I Additional District and Sessions Judge), Vellore) 1. Both these appeals arise out of the common Order dated 05.04.2019 passed in MCOP No. 320 of 2012 on the file of the Motor Accident Claims Tribunal, Vellore (I Additional District and Sessions Court), Vellore. 2. The learned counsel for both sides have advanced common arguments in both these appeals, therefore, these appeals are taken up for hearing together and disposed of by this Common Judgment. 3. For the sake of convenience, the parties to these appeals are referred to as per their litigative status in MCOP No. 320 of 2012 as claimants and respondents. 4. The claimants have filed MCOP No. 320 of 2012 before the Tribunal claiming that on 02.09.2012 at about 20.30 hours in Thiruvalam to Ponnai Road, near Ramakrishnapuram Village, Opposite to Thangam Nagar, the deceased was riding his two wheeler - Hero Honda bearing Registration No. TN 23 AL 9567. At that time, the driver of the lorry bearing Registration No. TN 25 V 8191 driven it in a rash and negligent manner and hit the deceased. In the impact, the deceased sustained multiple injuries. He was taken to Government Hospital, Walaja, but he died on the way to the hospital. It is claimed that the deceased was aged 35 years at the time of accident and was working as a Head Mason. It is also claimed that he was drawing Rs.15,000/- per month and by reason of his death, the claimants have lost his income. Therefore, they have filed the claim petition against the owner and insurer of the lorry by claiming Rs.45 lakhs as compensation for the death of the deceased. 5. The claim petition was resisted by the appellant-Insurance Company by filing a counter statement. In the counter statement, it was stated that the lorry bearing TN 25 V 8191 did not involve in the accident at all. According to the Insurance company, the police complaint on the alleged accident reveals that it is a case of accident caused by unknown lorry and the lorry bearing No. TN 25 V 8191 was not mentioned in the complaint at all. According to the Insurance company, the police complaint on the alleged accident reveals that it is a case of accident caused by unknown lorry and the lorry bearing No. TN 25 V 8191 was not mentioned in the complaint at all. However, without any basis, the lorry was taken for examination before the Motor Vehicle Inspector at Vellore on 04.09.2012. After thorough inspection, the police have closed the complaint as charge abets due to the death of the deceased by concluding that it was the deceased, due to his negligent act, has hit the unknown lorry. The claim petition has been filed with an intention to get compensation from the Insurance Company even though the insured vehicle has not involved in the accident. Therefore, the Insurance Company prayed for dismissal of the claim petition. 6. Before the Tribunal, the wife of the deceased and first claimant Bakiyalakshmi examined herself as PW1. One Baktavatchalam, stated to be an eye witness, was examined as PW2. Exs. P1 to P10 were marked on the side of the claimants. On behalf of the Insurance Company, one Rajkumar was examined as RW1, Suresh was examined as RW2 and Senthil Kumar was examined as RW3. Ex. R1, copy of the referred charge sheet and Ex.R2, investigation report were marked in support of the defence. 7. The Tribunal, on analysing the oral and documentary evidence, concluded that the lorry was subjected to inspection by Motor Vehicle Inspector on 04.09.2012 without there being any objection raised by the owner of the vehicle. Further, it was concluded that the driver of the lorry was not summoned by the Insurance Company to be examined on their side. Therefore, the Tribunal drawn a legal presumption that it was the lorry, insured with the appellant insurance company, had caused the accident in which the deceased died. On analysing Ex.R1, referred charge sheet, the Tribunal summoned the records from the Magistrate Court and ascertained that Ex.R1 was not filed before the competent Court at all, and therefore, the Tribunal rejected the argument of the counsel for the Insurance Company that the charge sheet was filed only as against the deceased and the Magistrate Court recorded that the charge abets by reason of the death of the deceased. On the above conclusion, the Tribunal held that the lorry insured with the appellant - Insurance Company alone has caused the accident. On the above conclusion, the Tribunal held that the lorry insured with the appellant - Insurance Company alone has caused the accident. To lend support to such conclusion, the Tribunal placed reliance on the decision of the Honourable Supreme Court in the case of (i) D. Selvaraju vs. D. Rajamanickam and another reported in 2013 (1) TN MAC 530 and (ii) Bimla Devi and others vs. Himachal Road Transport Corporation and others reported in 2009 (1) TN MAC 700 (SC) wherein it was held that strict proof of accident is not necessary and it is sufficient if the claimants establish their case on the touch stone of preponderance of probability. If the factum of accident is disputed by a party, principles underlying burden of proof in terms of Section 106 of the Indian Evidence Act has to be applied calling upon the defendant, who raises a defence, to prove the same. 8. As regards quantum of compensation, the Tribunal fixed notional income of Rs.6000/- added 50% towards future prospectus to arrive at Rs.9,000/- as monthly loss of income and Rs.1,08,000/- as annual loss. After giving 1/4th deduction of Rs.27,000/-, the net annual income of the deceased was worked out at Rs.81,000/-. Applying multiplier 16, the Tribunal arrived at Rs.12,96,000/- as loss of income. That apart, by awarding non-pecuniary benefits, the Tribunal awarded a total sum of Rs.13,76,000/- as compensation, as tabulated below:- Loss of income Rs.12,96,000.00 Loss of consortium to first claimant Rs. 25,000.00 Loss of love and affection Rs. 50,000.00 Funeral expenses Rs. 5,000.00 Rs.13,76,000.00 9. Assailing the award of the Tribunal, the appellant Insurance Company has filed CMA No. 1118 of 2020 mainly on the ground of liability as well as quantum. 10. Not being satisfied with the award of Rs.13,76,000/- of compensation awarded by the Tribunal, the claimants have filed CMA No. 927 of 2021. 11. The learned counsel for the appellant Insurance Company would vehemently contended that the accident did not occur as projected by the claimants. To prove the accident, PW1 was examined, who is the wife of the deceased. PW1 has not witnessed the accident and therefore, her evidence0 cannot be taken into account. PW2 was projected as eye witness, but there are several inconsistencies in his evidence. According to the learned counsel for the appellant, PW2 is a stock witness arranged by the claimants to depose on their behalf. PW1 has not witnessed the accident and therefore, her evidence0 cannot be taken into account. PW2 was projected as eye witness, but there are several inconsistencies in his evidence. According to the learned counsel for the appellant, PW2 is a stock witness arranged by the claimants to depose on their behalf. According to PW2, the deceased went behind the lorry and when sudden brake was applied, he dashed against the lorry and sustained injuries. However, in the claim petition as well as in the deposition of PW1, it was stated that the insured vehicle came in the opposite direction and hit the two wheeler driven by the deceased. Therefore, it is claimed that the deposition of PW2 is not trustworthy and it cannot be relied on to mulct the Insurance Company with the liability to pay compensation. 12. The learned counsel for the appellant also submits that PW2 in his cross-examination admitted that he did not narrate the incident to any one, while so, it is not known as to how he was called upon to depose on behalf of the claimants. PW2 also admitted in his cross-examination that he was called upon by PW1 to depose evidence in this case. Even the police did not enquire PW2 and therefore, it is highly doubtful as to whether PW2 has witnessed the accident. 13. The learned counsel for the appellant invited the attention of this Court to the deposition of RW2, investigation officer and submitted that even RW2 has not enquired PW2 during his investigation. Further, RW2 has stated that the lorry was sent for Motor Vehicle Inspector inspection based on suspicion. Further, the learned counsel for the appellant submitted that the complaint was given by Mr. K. Manivannan, brother of the deceased and even as per the complaint, the defacto complainant came to know about the accident through one Ezhil, but both of them were not examined before the Tribunal. Even the lorry was sent to Motor Vehicle Inspectors inspection when some of the public have informed about a lorry being stationary at the occurrence spot. Above all, the learned counsel for the appellant placed reliance on the final report in which it was stated that the deceased was the tort feasor as he, due to his own negligence, invited the accident and died. Therefore, in the final report, it was stated that "charge abated". Above all, the learned counsel for the appellant placed reliance on the final report in which it was stated that the deceased was the tort feasor as he, due to his own negligence, invited the accident and died. Therefore, in the final report, it was stated that "charge abated". Thus, the learned counsel for the appellant would submit that this is a false case projected by the claimants to get compensation from the appellant - Insurance Company. The trial court, on surmises and presumption passed the award and therefore, he prayed for allowing this appeal. 14. On the above contention, this Court heard the learned counsel for the claimants and perused the materials placed on record. 15. Heard the counsel for both sides and perused the materials placed on record. The first claimant is the wife, the claimants 2 to 4 are the children born to the deceased and the first claimant. The claimants 5 and 6 are the parents of the deceased. The first respondent in the claim petition was the owner of the lorry and the second respondent is the insurer of the lorry. The claim petition was filed seeking compensation for the death of the deceased Baskaran, who died in a road accident on 02.09.2012. 16. On perusal of the claim petition in MCOP No. 320 of 2019, it is seen that in paragraph No. 23, it was clearly stated that the offending lorry was driven by V. Subramani, Son of Varadarasan. However, the appellant Insurance Company has not chosen to examine the said V. Subramani, who stated to have driven the lorry on the fateful day. It is not known as to why the appellant Insurance Company did not examine the said V. Subramani to strengthen their defence. For the reasons best known, the appellant did not examine the said V. Subramani. This was also pointed out by the Tribunal in para No.9 of the award. The relevant portion of the award reads as follows:- "9. ......Further, either the driver of the lorry or the owner of the lorry not come forward to file any counter stating that their vehicle was not at all involved in the accident. The second respondent being the insurer of the first respondent, not taken any steps to summon them to adduce evidence in this regard. ......Further, either the driver of the lorry or the owner of the lorry not come forward to file any counter stating that their vehicle was not at all involved in the accident. The second respondent being the insurer of the first respondent, not taken any steps to summon them to adduce evidence in this regard. The owner of the vehicle has not made any objection to send his vehicle for investigation." 17. Therefore, this Court is of the view that the Tribunal is wholly justified in rendering a finding that the Appellant Insurance Company has failed to summon the driver or owner of the vehicle, who is competent to depose as to whether the vehicle plied in the occurrence spot on the aforesaid date and time or involved in any accident. Therefore, an adverse inference has to be drawn as against the respondents in the claim petition. 18. The appellant Insurance Company has also relied on the charge sheet filed as against the deceased. However, in para No.9, the Tribunal, after calling for the records from the Magistrate Court, rendered a categorical finding that the referred charge sheet has not been filed at all by the investigation officer. Therefore, it is futile on the part of the appellant to place reliance on Ex.R1, referred charge sheet, in this case. 19. As regards the deposition of PW2, he has stated that he did not receive any summons either from the Tribunal or from the police officials. It is also stated that he has not disclosed about the incident to any one but to the advocate. He also stated that on the request made by the first claimant, he deposed before the Tribunal. At the same time, he has denied that there is no nexus between the death of the deceased and the offending lorry. On consideration of the over all evidence of PW2, this Court comes to the conclusion that there is nothing to discard the evidence of PW2. Even in the absence of testimony of PW2, the Motor Vehicle Inspector report and the first information report filed in this case would only indicate that there was a motor accident in which the deceased died. To disprove the claim petition, it is for the appellant Insurance Company to examine the driver or owner of the vehicle, but they failed to do so. To disprove the claim petition, it is for the appellant Insurance Company to examine the driver or owner of the vehicle, but they failed to do so. It is not the case of the appellant Insurance Company that they have taken steps to examine them but they did not turn up before the Tribunal. 20. In considering a claim petition seeking compensation for death or bodily injury, the Courts cannot resort to a lengthy enquiry and to examine each and every one of the deposition of witness or document adduced. The Court has to satisfy that the death has a nexus to the vehicle said to have been involved in the accident and it can be presumed on the availability of existing evidence. Even the Tribunal, by placing reliance on the decision of the Honourable Supreme Court stated supra has held that strict proof of accident is not necessary and it is sufficient if the claimants establish their case on the touch stone of preponderance of probability. Therefore, applying the above principles, this Court holds that the lorry insured with the appellant is the cause for accident and consequently, the Tribunal is justified in mulcting the liability on the appellant. 21. As regards quantum, this Court has perused the award passed by the Tribunal. The deceased was 35 years old at the time of accident. He, according to the claimants, was working as a Head Mason and earning Rs.15,000/- per month. However, there was no proof of income filed before the Tribunal and in the absence of which, the Tribunal has taken the notional income of the deceased at Rs.6,000/- per month. By adding 50% thereof (Rs.3,000) towards future prospectus and after giving 1/4th deduction, the net income of the deceased was fixed at Rs.81,000/- per annum to award Rs.12,96,000/- towards loss of dependency. Such fixation by the Tribunal, in the opinion of this Court, is fair and reasonable besides it is proportionate to the age of the deceased. At the same time, the argument of the counsel for the claimants/respondents that fixation of Rs.6,000/- as notional income is very low and more amount ought to have been fixed by the Tribunal cannot be countenanced. 22. The Tribunal awarded Rs.25,000/- towards loss of consortium to the first claimant, who lost her husband at an young age. At the same time, the argument of the counsel for the claimants/respondents that fixation of Rs.6,000/- as notional income is very low and more amount ought to have been fixed by the Tribunal cannot be countenanced. 22. The Tribunal awarded Rs.25,000/- towards loss of consortium to the first claimant, who lost her husband at an young age. The amount of Rs.25,000/- awarded is contrary to the dictum laid down by the Honourable Supreme Court in Pranay Sethi case. Therefore, the sum of Rs.25,000/- awarded by the Tribunal is enhanced to Rs.40,000/-. 23. For loss of love and affection, the Tribunal awarded Rs.50,000/- to six claimants. The deceased left behind him his wife, children and parents. In other words, the claimants, who are six in number were depended on the deceased morally and financially. On the death of the deceased, they have lost the love and affection as well as care. While so, this Court is of the view that a sum of Rs.40,000/- has to be awarded to each of the claimants. Accordingly, the sum of Rs.50,000/- awarded by the Tribunal towards loss of love and affection is set aside and instead a sum of Rs.2,40,000/- (Rs.40,000 X 6) is awarded as compensation. 24. Similarly, Rs.5,000/- was awarded towards funeral expenses, which is very meager. Therefore, a sum of Rs.15,000/- is awarded towards funeral. Further, for transportation and Loss of Estate, the Tribunal did not award any amount and therefore, a sum of Rs.15,000/- each, totalling Rs.30,000/- is awarded under those heads. In all, the sum of Rs.13,76,000/- awarded by the Tribunal is modified and Rs16,21,000/- is awarded as compensation to the claimants as per the tabulation given below:- Loss of income Rs.12,96,000.00 Loss of consortium to first claimant Rs. 40,000.00 Loss of love and affection Rs. 2,40,000.00 Funeral expenses Rs. 15,000.00 Transportation Rs. 15,000.00 Loss of Estate Rs. 15,000.00 Rs.16,21,000.00 25. In the result, (i) CMA No. 1118 of 2020 filed by the appellant-Insurance Company is dismissed (ii) CMA No. 927 of 2021 filed by the respondents-claimants is partly allowed by modifying the Order dated 05.04.2019 passed in MCOP No. 320 of 2012 on the file of I Additional District and Sessions Judge, Vellore and the compensation awarded by the Tribunal at Rs.13,76,000/- is enhanced to Rs.16,21,000/-. (iii) No costs. (iii) No costs. (iv) The appellant Insurance Company is directed to deposit the enhanced compensation amount determined by this Court in this appeal by depositing the balance compensation amount, after adjusting the amount, if any, already paid, to the credit of MCOP No. 320 of 2019, within a period of six weeks from the date of receipt of a copy of this Judgment. (v) On such deposit, the first claimant is permitted to withdraw a sum of Rs.4 lakhs with accrued interest. The minor claimants/2 to 4 are entitled to 3 lakhs each, which amount shall be deposited in a Nationalised Bank till they attain majority. The remaining compensation amount determined in this appeal is directed to be apportioned in favour of the claimants 5 and 6/parents in equal proportion, with accrued interest. (vi) As directed, the share of the minors shall remain in deposit in a Nationalised Bank until they attain majority. The first claimant, is however, permitted to withdraw the accrued interest from the amount deposited in the name of the minors, once in three months, for the welfare and maintenance of the minors.