1. The above Civil Miscellaneous Appeal has been filed by the appellant/second respondent against the Award and Decree, dated 31.03.2003, made in M.C.O.P.No.511 of 2002, on the file of the Motor Accident Claims Tribunal, Sub-Ordinate Court, Thiruvallur, awarding a compensation of Rs.12,17,000/- together with 9% interest per annum, from the date of filing petition till the date of payment of compensation.

2. Aggrieved by the said Award and Decree, the appellant/second respondent has filed the above appeal praying to scale down the award and decree passed by the Tribunal.

3. The short facts of the case are as follows:

on 17.02.2002, at about 05.30 p.m. the deceased D.Simson was standing with his friend in G.N.T.road, Athipedu bus stand, at that time the first respondents Swaraj Mazda Mini Lorry bearing registration No.TAC7177, coming from north to south, in a rash and negligent manner by its driver dashed against the deceased and caused his death. The accident had occurred only due to the rash and negligent driving of the driver of the first respondent. The first respondent is the owner of the vehicle and the second respondent is the insurer of the vehicle. The first petitioner is the widow of the deceased and the second and third petitioners are the parents of the deceased. As such, the petitioners claimed a compensation of Rs.24,00,000/- before the Tribunal.

4. The second respondent, in their Counter, had resisted the claim petition, which reads as follows:

"In any event this respondent is unable to admit there was valid policy for the mini lorry with registration No.TAC 7177.

This respondent is unable to admit that D.Balakrishnan who allegedly drove the mini lorry had valid licence.

This respondent is unable to admit that the deceased D.Simson was a labour contractor or that he was making Rs.30,000/-per month. This respondent is unable to admit that the deceased was an income tax assesse, or that any tax deduction was made. Without admitting that the deceased suffered any tax deduction at source this respondent submits that the T.B.S.amount cannot be taken as the clear index of the actual income earned. If it is ultimately shown that the individual need not pay any income tax then amount collected by way of T.D.S. is responsible. Since, the claim is for hefty sum of Rs.24,00,000/- the claimants should be directed to produce Income tax returns submitted by the deceased for the period of five years immediately prior to the accident and the income tax payment chalan.

It is respectfully submitted that only taxable income as declared by the I.T. Officials can be taken into account. Further, it is a settled legal position that income tax liability has to be deducted while computing the income.

This respondent is unable to admit that the deceased Simson was aged about 30 only at the time of the accident. It has to be proved by proper documentary evidence.

In any event the quantum claimed is excessive.

The claim is liable to be dismissed with costs."

The second respondent prayed accordingly.

5. The learned Motor Accident Claims Tribunal framed two issues for the consideration namely:

(i)Whether the accident had occurred due to the rash and negligent driving of the driver of the first respondents vehicle?

(ii)Whether the petitioners are entitled to get compensation? If so, what is the quantum of compensation?

6. On the petitioners side, the first claimant, the widow of the deceased was examined as PW1 and one Lamuel, eye witness of the accident was examined as PW2 and seven documents were marked as Exs.P1 to P7 namely Ex.P1-Xerox copy of the First Information Report, Ex.P2-Xerox copy of the Post-Mortem Report, Ex.P3-Xerox copy of the Rough Sketch, Ex.P4-Xerox copy of the Charge Sheet, Ex.P5-Xerox copy of the Lower Court Judgment, Ex.P6-T.D.S.Certificates and Letters, Ex.P7-Legal heir Certificate. On the respondents side no one was examined and no documents were marked.

7. The PW1, widow of the deceased, had add