The main legal point established in the judgment is the determination of liability and quantum of compensation under the Motor Vehicles Act, based on evidence of negligence and application of legal principles from previous judgments.

JUDGMENT

(Prayer: The Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 27.11.2020 in M.C.O.P.No.639 of 2018 on the file of the Motor Accident Claims Tribunal (Special District Judge) at Dharmapuri.)

1. This Civil Miscellaneous Appeal has been filed by the Insurance Company aggrieved by the quantum of compensation awarded by the Tribunal to the respondents 1 to 4 herein.

2. The respondents 1 to 4 had filed a claim petition stating that on 05.07.2018, at about 3.30 p.m, when the deceased went in his motorcycle bearing registration No TN 29 AR 2729, the 5th respondent''s Tata Ace vehicle bearing registration No.TN 29 AX 6468 came in a rash and negligent manner and dashed against the motorcycle of the deceased; the deceased was thereafter taken to the hospital where he was pronounced dead; that the deceased was working as a Head Constable in Central Reserve Police Force and he had taken a voluntary retirement from his service in the year 2012; that he was drawing a monthly pension of Rs.16,950/-; that he was also doing a agricultural business and was running a poultry farm; and he was earning a monthly income of Rs.35,000/- and hence, were entitled to a claim of Rs.1 crore.

3. The appellant/Insurance Company filed a counter statement, denying the averments made in the claim petition and stated that the driver of TATA Ace did not have valid license and in any event, the accident was not due to the rash and negligent act of the driver of the TATA Ace vehicle and hence, they were not liable to pay the compensation. In any event, the compensation claimed by the respondents 1 to 4 is excessive and prayed for dismissal of the claim petition.

4. Before the Tribunal, the respondents examined two witnesses and marked Exs.P1 to P26 and the appellant examined RW.1 and marked Exs.R1 to R3.

5. The Tribunal considering the pleadings, oral and documentary evidence held that the deceased died only due to rash and negligent act of the driver of the TATA Ace vehicle on the basis of the evidence of P.W.2 and that there was no rebuttal evidence on the side of the respondent and directed the appellant/Insurance Company as insurer of the TATA Ace vehicle to pay a sum of Rs.27,07,255/- as compensation to the respondents 1 to 4.

6. Mrs.R.Sree Vidhya, learned counsel for the appellant submitted that the appellant is not liable to pay the compensation, since the respondents 1 to 4 have not established the negligence on the part of the driver of the TATA Ace vehicle. She further submitted that in any event, the quantum awarded by the Tribunal is excessive for two reasons. The Tribunal had erroneously taken the entire pension drawn by the deceased at the time of his death, while calculating the monthly income. The Tribunal ought to have seen that the first respondent was receiving a family pension equal to half of the said amount and hence, the Tribunal should have considered only half of the pension amount as loss of income, which comes to Rs.8,275/-. She further submitted that admittedly the deceased was aged 48 years and hence, the future prospects ought to have been taken as 25% instead of 30% wrongly taken by the Tribunal and prayed for allowing the appeal.

7. Per contra, the learned counsel for the respondent that the Tribunal had correctly come to the conclusion that the loss of income has to be taken as Rs.16,550/- and the Tribunal has considered the appellant''s submission and found that the family pension cannot be deducted, since the family pension is earned by an employee for the benefit of his family in the form of his contribution in the service receivable by the heirs after his death. The Tribunal had considered the judgment of the Hon''ble Apex Court in Vimal Kanwar and others Vs. Kishore Dan and others (CMA.No.5513 of 2012 dated 03.05.2013) and held that there cannot be any