JUDGEMENT

Aggrieved by the compensation granted by the Motor Accident Claims

Tribunal (Principal District Judge), Perambalur in M.C.O.P.No.401 of 2009

dated 27.07.2012, the claimants are before this Court.

2. Brief facts which are necessary for disposal of this appeal are as follows:-

(i) On 11.10.2008 at about 3.15 a.m., when the deceased Suresh was travelling as a cleaner in the lorry belonging to the first respondent insured with the second respondent bearing Regn.No.TN 21 L 0262, at that time a tipper lorry bearing Regn.No.TN 46 F 3669 belonging to the third respondent insured with the fourth respondent driven by its driver which came in the opposite direction in a rash and negligent manner and dashed against the first respondent lorry, due to which the said lorry was capsized on the road and as a result of which the cleaner of the first respondent lorry died on spot. Claiming compensation in a sum of Rs.8,00,000/- the claim petition has been filed by the appellants herein.

3. Before the Tribunal, the claimants examined two witnesses viz.,

P.W.1 and P.W.2 and marked Exs.P.1 to Ex.P.3. On the side of respondents neither any witnesses were examined nor any documents were marked. After adjudication, the Tribunal awarded a sum of Rs.4,60,000/- as compensation to the claimants. Not satisfied with the compensation awarded by the Tribunal, the present appeal has been filed by the appellants seeking enhancement. 4. The learned counsel appearing for the appellants / claimants submitted that though the deceased earned a sum of Rs.4,500/- per month as a cleaner, however, the Tribunal has awarded only a sum of Rs.2,500/- per month, which is on the lower side, and the same requires to be reconsidered by this Court. He further submits that 40% future prospects has not been added by the Tribunal. That apart, the amount awarded under the head loss of love and affection is also on the lower side and the same is also not in consonance with the judgment of the Hon'ble Supreme Court in the case of . He further submits that no amount has been granted under the head loss of estate and compensation awarded by the Tribunal under other heads are also on the lower side. Accordingly, he prays for appropriate enhancement in favour of the appellants.

5. Per contra, the learned counsel appearing for the second respondent/insurer of the first respondent vehicle submitted that due to the rash and negligent driving of the driver of the third respondent lorry the said accident happened. Though the FIR is not an encyclopedia, the Tribunal based on the contents of the FIR, has fixed entire liability on the respondents 1 and 2 is not sustainable. Moreso, it is evident from the deposition of P.W.2 that the driver of the third respondent lorry alone is responsible for the said accident.

However, without any oral and documentary evidence, the Tribunal has fixed the entire liability as against the respondents 1 and 2 which is per se unsustainable. Hence, it would suffice, if this Court may fasten 50% liability on the part of the fourth respondent which would be just and reasonable. Accordingly, he seeks appropriate modification of the award passed by the

Tribunal.

6. The learned counsel appearing fourth respondent / insurer of the third respondent vehicle submits that due to the rash and negligent driving of the driver of the first respondent lorry, the Law Enforcing Agency has registered a criminal case against the driver of the first respondent. Hence, the fourth respondent is not liable to compensate the appellants / claimants. Therefore, the award passed by the Tribunal, fastening the entire liability on the part of the respondents 1 and 2 which is just and reasonable. Hence, the same does not require any interference of this Court.

7. Though the notice has been served on the respondents 1 and 3, no one appeared on their behalf. Considering the period of pendency of the appeal the same is disposed of based on the materials available on record.

8. Heard the learned cou