Family pension cannot be deducted from the deceased's income when calculating compensation for wrongful death in motor accident claims.

JUDGMENT :

J. Nisha Banu, J.

Feeling aggrieved with the award dated 22-04,2024 passed by the Motor Accident Claims Tribunal, Tiruvallur at Poonamalee (II Additional District and Sessions Judge) in MCOP.No.72/2022, the petitioners/ claimants have preferred the CMA.No.2384/2024, while the respondent No.2/Insurance Company preferred the CMA.No.3193/2024 to set aside the award passed by the Tribunal in the aforesaid O.P.

2. For the sake of convenience, the parties will be referred to as per their array before the Motor Accident Claims Tribunal.

3. The 1^st petitioner is the wife, the 2^nd and 3^rd petitioners are the sons and 4^th petitioner is the mother of M.Rathinaswamy. On 27.02.2022 at about 2.30 a.m., the 1^st petitioner's husband M.Rathinaswamy, while riding in TVS Star Motorcycle bearing Registration No.TN-13-W-9115 towards south to north on ECR Road and was approaching Abumandhai Toll Gate, the 1^st respondent came in a motorcycle in a rash and negligent manner and hit against the deceased vehicle. In the accident, the 1^st petitioner's husband sustained multiple severe head injuries and multiple fractures. Despite treatment, the 1^st petitioner's husband died in PIMS Hospital, Pondicherry. The accident had happened only due to the negligent driving of the rider of the 1^st respondent vehicle. The 1^st respondent is the owner of the motorcycle which dashed the 1^st petitioner's husband. The 2^nd respondent is the Insurance Company of the 1^st respondent vehicle. At the time of accident, the deceased was working as a Head Constable in the Tamil Nadu Police and earned a sum of Rs.68,496/- per month. Hence, the petitioners seek compensation of Rs.2,70,00,000/- from the respondents.

4. Before the Tribunal, the 1^st respondent did not choose to contest the petition. Hence, he was called absent and set exparte.

5. The 2^nd respondent filed a counter denying the manner of the accident. Further, it was stated that the 1^st petitioner's husband drove the motorcycle without having valid driving license and in an imbalance manner, unmindful of the traffic and fell down due to imbalance darted on the road. The accident occurred due to the rash and negligent driving of the deceased. The deceased alone is the sole reason for the accident. The 1^st respondent vehicle bearing Registration No.TN-33-W-4388 was not at all responsible for the accident. The First Information Report against the 1^st respondent vehicle has been fabricated with the collision of Police. The 2^nd petitioner who has given police complaint against the 1^st respondent vehicle is not an eye witness to the alleged accident. There is no criminal proceedings against the 1^st respondent rider. Hence, the respondents are not liable to pay the compensation to the petitioners. Therefore, the 2^nd respondent prayed to dismiss the claim petition.

6. In order to prove the case of the petitioners, the 1^st petitioner was examined as PW1. One Senthilkumar and Rabert were examined as Pws. 2 and 3. Ex.P1 to P.31 were marked. On the side of the respondents, no witness and no document was produced. The Tribunal, based on Ex.P1- First Information Report and the evidence of PW1 came to the conclusion that the accident happened due to the rash and negligent driving of the 1^st respondent rider. Further, the Tribunal concluded that since the 1^st respondent vehicle was insured with the 2^nd respondent on the date of accident, the 2^nd respondent is liable to pay the compensation to the petitioners. Accordingly, the Tribunal awarded a compensation of Rs.55,44,900/-.

7. Feeling aggrieved, the petitioners/claimants filed CMA.No.2384/2024 seeking enhancement of compensation and the respondent therein filed CMA.No.3193/2024 questioning the liability and quantum awarded by the Tribunal.

8. Mr.Varadhakamaraj, learned counsel for the claimants would argue that the First Information Report was registered against the 1^st respondent rider and P.W.3 was examined as an eye witness to the occurrence. The eye witness coupled with First I