JUDGMENT : (Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, against the judgment and decree, dated 15.11.2008, made in M.C.O.P.No.101 of 2006, on the file of the Motor Accident Claims Tribunal, Subordinate Judge, Sivakasi.) 1. This Civil Miscellaneous Appeal is filed against the order, dated 15.11.2008, made in M.C.O.P.No.101 of 2006, on the file of the Motor Accident Claims Tribunal, Subordinate Judge, Sivakasi. 2. The appellant herein is the third respondent, the respondents 1 to 4 herein are the claimants and the fifth respondent herein is the first respondent and the sixth respondent herein is the second respondent in the original claim petition. 3. Brief substance of the petition in M.C.O.P.No.101 of 2006 is as follows:- On 23.08.2005, the deceased/Thanam Jeyaraj was riding his two wheeler bearing Registration No.TN-67-E-1145 along the Sattur to Virudhunagar road, at that time, a lorry that belonged to the first respondent bearing Registration No.TN-33-AB-0901, came from the opposite direction in a rash and negligent manner and dashed against the two wheeler. The deceased sustained injuries and died on the spot. The claimants are his dependents and they claimed a sum of Rs.15,00,000/- as compensation. 4. Brief substance of the counter filed by the second respondent in M.C.O.P.No.101 of 2006 is as follows:- The first respondent's driver was careful and cautious in driving the vehicle. It was the deceased, who ride the bike, in a rash and negligent manner and has invited the accident. The age, occupation and income are all denied. The respondents 4 and 5 are not dependents of the deceased. The claim is excessive. There is a valid insurance coverage for the lorry. 5. Brief substance of the counter filed by the third respondent in M.C.O.P.No.101 of 2006 is as follows:- The manner of the accident is denied. The third respondent is the insurer of the two wheeler driven by the deceased. The driver of the bigger vehicle has to be more careful and cautious. The third respondent is only a formal party. The deceased vehicle was having only third party coverage and the policy does not cover the owner's personal injury. 6. Two witnesses were examined and Eleven documents were marked on the side of the petitioners. One witness was examined and no document was marked on the side of the respondents. One third party document was marked. 7. The deceased vehicle was having only third party coverage and the policy does not cover the owner's personal injury. 6. Two witnesses were examined and Eleven documents were marked on the side of the petitioners. One witness was examined and no document was marked on the side of the respondents. One third party document was marked. 7. The trial Court, after considering both sides, has awarded a sum of Rs.4,15,000/- as compensation to be equally paid by both the respondents 2 and 3. Against the same, the third respondent/appellant has filed this Civil Miscellaneous Appeal. 8. On the side of the appellant, it is stated that the Tribunal erroneously fixed contributory negligence on the deceased. The liability of the appellant/United India Insurance Company is restricted to Rs.1,00,000/- as per the statute. The entire liability ought to have been fixed on the driver of the lorry. The lorry driver was convicted by the Criminal Court. Fixing 50% contributory negligence on the part of the deceased is unreasonable. 9. On the side of the respondents 1 to 4/ claimants, it is stated that the Tribunal ought to have considered that the liability of the appellant/United India Insurance Company is restricted to Rs.1,00,000/- for the driver cum owner of the two wheeler and that the remaining amount ought to have been ordered to be paid by the sixth respondent/ National Insurance Company for the lorry. 10. On the side of the respondents 1 to 4/ claimants, it is further stated that the responsibility is more on the heavy vehicle than on the two wheeler and the negligence should be fixed on the lorry driver. A judgment of this Court in C.M.A.No.1726 of 2011, dated 24.06.2019 (Managing Director V. Raja) is cited, wherein it is stated as follows:- “10.1. On consideration of both oral and documentary evidence and also taking note of the manner of the accident, the Tribunal has rightly held that both the driver of the Transport Corporation Bus and the rider of the Bike have contributed to the accident and also apportionment of the degree of rash and negligence on the part of both the drivers of the respective vehicles fixed at 75% : 25%.” 11. On the side of the respondents 1 to 4/ claimants, it is further stated that though a cross appeal was not filed by the claimant, the Court is at liberty to enhance the award amount. On the side of the respondents 1 to 4/ claimants, it is further stated that though a cross appeal was not filed by the claimant, the Court is at liberty to enhance the award amount. Judgments of this Court reported in 2018-1-TNMAC-592 (DB) [Managing Director, State Express Transport Corporation Limited V. Radha and others] and 2019-1-TNMAC-366(DB) [HDFC ERGO General Insurance Co.Ltd., V. Mathivanan and others] and C.M.A.No.81 of 2014, [General Manager, TNSTC, Vs. Ammavasi and others], dated 11.03.2019 are cited and prayed the compensation amount to be enhanced. 12. On the side of the sixth respondent/National Insurance Company, it is stated that the lorry was hit by the two wheeler and the Tribunal is correct in fixing the liability against both the vehicles. 13. The main issue to be decided in this case is liability. The Tribunal fixed the liability equally and directed the appellant and the sixth respondent to pay the compensation equally. The reason for fixing 50% of the liability on the third respondent therein stated by the Tribunal is that the appellant has paid for the damages for the vehicle of the deceased and that there was absence of clear evidence. On the basis of the evidence of P.W.2, the Tribunal has made an observation that a bus was moving infront of the two wheeler and that there was no chance for the lorry, which came from the opposite direction, without hitting the bus, to have dashed against the two wheeler and the Tribunal gave a findings that the two wheeler was on the western side of the road and that the rider of the two wheeler also contributed to the accident. The Tribunal has made an observation that the evidence of P.W.2 was not clear as to the mode of accident. But, based only on the oral evidence of P.W.2, the Tribunal has given a findings that the deceased contributed to the accident. 14. A perusal of the records reveals that F.I.R. /Ex.P1 and charge sheet/Ex.P2 were registered against the lorry driver. It is stated that the lorry driver was convicted by the Criminal Court. P.W.2 has deposed that it was the lorry driver, who was rash and negligent. The Tribunal failed to appreciate the evidence of P.W.2 in the proper prospective. 14. A perusal of the records reveals that F.I.R. /Ex.P1 and charge sheet/Ex.P2 were registered against the lorry driver. It is stated that the lorry driver was convicted by the Criminal Court. P.W.2 has deposed that it was the lorry driver, who was rash and negligent. The Tribunal failed to appreciate the evidence of P.W.2 in the proper prospective. Considering the evidence of P.W.2 and considering Ex.P1 and Ex.P2 and also considering the fact that the driver of the lorry was convicted by the criminal Court, it is decided that the lorry driver is responsible for the accident. Payment of compensation for the own vehicle damage is not a sufficient reason to fix liability on the appellant. Hence, it is decided that the sixth respondent/ National Insurance Company is liable to pay the entire compensation and that the appellant/United India Insurance Company is not liable to pay compensation. 15. A perusal of the records reveals that the award fixed by the Tribunal is not reasonable. The deceased was an Ex-Military Man, receiving pension of Rs.3,000/- per month. The Tribunal has made an observation that P.W.1 has deposed that she continued to receive Rs.3,000/- as pension. There is no possibility for a wife to receive the same amount as family pension. Hence, the observation made by the Tribunal is not reasonable. 16. It is stated that the deceased was doing job work as Electrician and he was running a photo studio. To substantiate this, the claimants have filed Ex.P6 - Diplamo in Electrical Engineering Certificate. Ex.P7-Indian Air Force, Trade Proficiency Certificate, Ex.P8- Certificate issued by the Central Excise Department. Ex.P9- Service Tax receipts. Ex.P10-Certificate of Medium A.C., Generators Automatic Voltage Reulators, Ex.P11, Photograph Service Certificate issued by the Commissioner of Central Excise Service Unit, Virudhunagar. The Tribunal has failed to consider Ex.P6 to Ex.P11 and has fixed the monthly income as Rs.3,000/-, which is erroneous. 17. The pension of the deceased is Rs.3,000/-. The income from the other sources is fixed as Rs.4,500/-, which was the notional income at that period. Hence, the total income of the deceased is fixed as Rs.7,500/-. After deducting 1/3rd for his own expenses, the deceased might have contributed Rs. 5,000/- to his family members. 17. The pension of the deceased is Rs.3,000/-. The income from the other sources is fixed as Rs.4,500/-, which was the notional income at that period. Hence, the total income of the deceased is fixed as Rs.7,500/-. After deducting 1/3rd for his own expenses, the deceased might have contributed Rs. 5,000/- to his family members. There is a possibility for the first claimant to receive Rs.1,000/- as family pension, when the original pension of the deceased was Rs.3,000/-, after deducting Rs.1,000/- towards family pension, the loss of income per month is Rs.4,000/-. The age of the deceased is 43 years and hence, after adding future prospects at 30% (Rs.1,200/-), the income is calculated at Rs.5,200/- per month. By applying 14', the loss of income is calculated at Rs. 8,73,600/- (Rs.5,200/- X 12 X 14 = Rs.8,73,600/-). As per the Pranay Sethi's case, the claimants are entitled for Rs.70,000/- towards conventional charges. In total, the claimants are entitled to Rs.9,43,600/- as total compensation and the fifth and sixth respondents herein are liable to pay compensation. 18. In the above circumstances, the sixth respondent/National Insurance Company is directed to deposit the entire award amount with interest and with costs. This Civil Miscellaneous Appeal is allowed, the appellant/United India Insurance Company is exonerated from the liability and the order, dated 15.11.2008, made in M.C.O.P.No.101 of 2006, on the file of the Motor Accident Claims Tribunal, Subordinate Judge, Sivakasi, is modified by enhancing the compensation from Rs.4,15,000/- to Rs.9,43,600/-, to be deposited by the sixth respondent. The first claimant, who is the wife of the deceased, is entitled to Rs.5,00,000/- and the second and third minor claimants, who are the children of the deceased, are entitled to Rs.2,00,000/- each (Totally Rs.4,00,000/- and the fourth claimant, who is the father of the deceased, is entitled to Rs.43,600/- along with proportionate interest and costs. 19. The sixth respondent/National Insurance Company is directed to deposit the entire compensation of Rs.9,43,600/- along with interest at the rate of 7.5% p.a from the date of petition till the date of deposit and with cost within a period of eight weeks from the date of receipt of a copy of this judgment. On such deposit being made, the major claimants are permitted to withdraw their respective shares as per the ratio fixed by this Court with proportionate interest after deducting any amount already received by them earlier. On such deposit being made, the major claimants are permitted to withdraw their respective shares as per the ratio fixed by this Court with proportionate interest after deducting any amount already received by them earlier. The Tribunal is directed to deposit the share of the minor claimants/respondents 2 and 3 as per the ratio fixed by this Court in any one of the Nationalised Banks, in a Fixed Deposit scheme, till they attain majority. The first respondent, who is the mother and guardian of the minor claimants, is permitted to withdraw the accrued interest once in three months directly from the bank, only for the welfare of minors. The claimants are not entitled for interest for the default period, if there is any default. The Registry is directed to draft the decree after the receipt of Court fee for the enhancement amount, from the claimants. The amount, if any, deposited by the appellant/United India Insurance Company, shall be refunded to the appellant. No costs. Consequently, connected Miscellaneous Petition is closed.