JUDGMENT :

(Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, to set aside the Judgment and decree dated 03.07.2017 passed in M.C.O.P.No.1 of 2016 on the file of the learned Additional District Judge of Paramakudi, by allowing this appeal.)

1. This Civil Miscellaneous Appeal has been filed to set aside the Judgment and decree, dated 03.07.2017 in M.C.O.P.No.1 of 2016 passed by the learned Additional District Judge, Paramakudi.

2. It is a case of fatal accident, which took place on 08.05.2012, at about 04.00 p.m., the deceased was riding his two wheeler bearing registration No.TVS XL-TN-37-AD-6908 coming in Valparai to Pollachi Main Road, from south to north, a vehicle bearing registration No.TN 38 PL 4006 drove in a rash and negligent manner in terrific speed, came from opposite side and dashed against the deceased and sustained injuries and he died on the way to Hospital.

3. The wife of the deceased/claimant has filed a petition in M.C.O.P. No.1 of 2016 on the file of the Additional District Court, Paramakudi, seeking compensation.

4. Before the Tribunal, on the side of the claimant two witnesses were examined as P.Ws.1 to 5 and marked thirty two documents as Exs.P.1 to P.32 and R.W.1 to 3 were examined.

5. The Tribunal, after considering the pleadings, oral and documentary evidences and the arguments of the counsel for the claimant and the insurance company and also on appreciating the evidences on record, held that the accident occurred only, due to the rash and negligent driving of the driver of the second respondent herein and directed the appellant/insurance company to pay a sum of Rs.16,36,560/-as compensation.

6. The appellant/Insurance company has filed this present appeal.

7. Heard Mr.V.Sakthivel, learned counsel appearing for the appellant and Mr.D.Senthil, learned counsel appearing for R-1 and Mr.Senthil Iyyanar, learned counsel appearing for R-3.

8. This Civil Miscellaneous Appeal is filed on the ground that the tribunal has failed to note that the death of the deceased has been resulted due to non-wearing the protective Head Gear as mandated under Section 129 of MV Act. The tribunal has failed to note that the claimant has not produced any records for the proof of income earned by the deceased and the tribunal was erred in fixing the income of the deceased as Rs.10,000/-per men sum without proof of documents. The tribunal was erred in awarding a sum of Rs. 1 lakh towards loss and affection.

9. The Claimant has filed M.C.O.P.No.1 of 2016 for compensation for her deceased husband who died in road Accident.

10. The first ground of the appeal is that, at the time of accident the deceased has not wearing helmet. Post-mortem report was marked as Ex.P.8. The cause of death was injury to brain. But the Insurance Company has not raised this plea before the Tribunal. Even in the cross examination of P.W.4, who was an eye witness the appellant/respondent has not raised any question regarding helmet. Therefore, now he cannot raise this plea in the present appeal.

11. The second objection is monthly income. The tribunal has fixed the monthly income is as Rs.10,000/-p.m. To prove the business of the deceased, the claimant has marked Ex.P.15 to Ex.P.28. At the time of accident, the age of the deceased was 45 years and hence, the tribunal has rightly fixed his monthly income is as Rs.10,000/-.

12. The third objection is that the tribunal added 30% for further prospectus. Since the deceased was doing business the tribunal ought to have added only 25%.

13. The Judgment in S.L.P(CIVIL)No.25590 of 2014, in the case of National Insurance Company Limited Vs. Pranay Sethi and Ors., wherein the Hon'ble Supreme Court held as follows:

.....

“4. In the said case, the Court considered the common questions that arose for consideration. They are:-

1. Whether the multiplier specified in the Second Schedule appended to the Ac