(Judgment of the Court was made by DR.G.JAYACHANDRAN, J.) These Civil Miscellaneous Appeals are directed against the award passed by the Motor Accident Claims Tribunal, Sivakasi, in M.C.O.P.No.171 of 2000, dated 19.02.2016.

2.The Insurance Company has preferred C.M.A.(MD)No.653 of 2020 challenging the quantum of compensation. Whereas, the owner of the offending vehicle has preferred C.M.A.(MD)No.654 of 2020, challenging the liability fastened on him following the principle of pay and recovery. 3/14 https://www.mhc.tn.gov.in/judis C.M.A.(MD)Nos.653 and 654 of 2020

3.The brief facts leading to the award under challenge are as below:-

day work without assistance and he is not able to write or continue his occupation as bus driver, therefore, the accident has caused immeasurable and incalculable loss. Hence, a claim petition restricted to a sum of Rs.2,00,000/- has been filed by the claimant against the insurer of the offending bus and owner of the bus. 4/14 https://www.mhc.tn.gov.in/judis C.M.A.(MD)Nos.653 and 654 of 2020

4.Before the Tribunal, the F.I.R., wound certificate, discharge summary and salary certificates were relied by the claimant. On the side of the respondents, to show that the claimant was travelling without purchasing ticket, the bill book copy and trip sheets were marked. The claimant was examined as P.W.1. On behalf of the respondents, three witnesses were examined.

5.The Tribunal after considering the claim petition, counter statement filed by the Insurance Company and documents, held that the injury sustained by the claimant, has caused him 75% permanent disability. The accident has occurred while the claimant was travelling near the footboard due to rash and negligent driving of the bus driver. Since the claimant travelled without purchasing ticket, the plea of the Insurance Company that they are not liable to compensate the unauthorized passengers was accepted and directed the Insurance Company to pay the compensation at the first instance and recover it from the bus owner. Regarding quantum, the Tribunal taking note of the salary certificate [Ex.P.6], which discloses that the claimant was paid Rs.112/- per day as wage, arrived at his monthly income as Rs.2,800/- and fixed Rs.5,37,600/- as loss of income from the date of accident till the date of award. In addition, considering the disability 5/14 https://www.mhc.tn.gov.in/judis C.M.A.(MD)Nos.653 and 654 of 2020 certificate [Ex.P.5], fixed his disability at 75% and applying multiplier '16', for loss of future income, awarded Rs.4,03,200/-. For pain and suffering, the Tribunal has awarded Rs.2,00,000/-. Towards nutritious food and transport, it has awarded Rs.5,000/- each. In addition, for 75% disability, the Tribunal has awarded Rs.2,25,000/- i.e., Rs.3,000/- per percentage of disability. Thus, the total sum of Rs.13,75,800/- is awarded as compensation along with interest at 9% p.a. from the date of claim petition till the date of relalisation, except for the period from 01.04.2003 to 31.12.2003. The said compensation was directed to be paid by the Insurance Company and recovered from the bus owner, the second respondent in C.M.A.(MD)No.653 of 2020 [K.S.Muthusingappa Raja], who is the legal heir of one K.R.Sri.Rengaraja [first respondent in the M.C.O.P.].

6.In C.M.A.(MD)No.653 of 2020 filed by the Insurance Company, it is contended that the Tribunal has erred in appreciating the facts of the case in proper perspective. While the claim petition is filed under Section 163-A(1) of the Motor Vehicles Act, seeking compensation, restricted to Rs.2,00,000/-, the award passed by the Tribunal applying multiplier and awarding a sum of Rs.13,75,800/- over and above the claim and contrary to Schedule II of the Motor 6/14 https://www.mhc.tn.gov.in/judis C.M.A.(MD)Nos.653 and 654 of 2020 Vehicles Act , which governs the quantum of compensation in case of Petition filed under Section 163-A of the Motor Vehicles Act, is excessive. It is contended that the claimant admittedly travelled as a gratuitous passenger, the Insurance Company cannot be fastened with liability when no additional premium paid to the Insurance Company for non-fare paying passengers. Though the accident has taken place purely due to recklessness of the claimant, who was travelling without ticket near the footboard, the Tribunal has not apportioned any liability for the negligence contributed by the victim/claimant.

7.The learned counsel for the appellant Insurance Company would also submit that the disability certificate has been given by the individual doctor, not by the Board and therefore, the Tribunal ought to have been given much weightage to the same, more particularly, the percentage of disability fixed is very excessive and not proportionate to the injury sustained by the claimant. It is also submitted by the learned counsel that having awarded Rs.2,25,000/- towards disability, there is no necessity for awarding loss of income both for past, present and future. More so, when the claim is filed under Section 163-A(1) of the Motor Vehicles Act, for which, compensation is governed by structured formula, the 7/14 https://www.mhc.tn.gov.in/judis C.M.A.(MD)Nos.653 and 654 of 2020 award of Rs.13,75,800/- is unreasonable, where the claimant himself has made a claim only for Rs.2,00,000/-.

8.In the appeal in C.M.A.(MD)No.654 of 2020 preferred by the vehicle owner, it is submitted that the accident victim was employed under them as a driver. After his duty, being an employee under the first respondent in the M.C.O.P., he is entitled to travel free in the transport bus owned by the employer and therefore, he cannot be termed as unauthorized passenger or gratuitous passenger. The driver has every right to travel in the vehicle owned by his employer after duty hours. Returning to his home after duty hours has to be construed as travel in the course of employment. Therefore, the order of the Tribunal fastening liability on the vehicle owner, applying the principle of pay and recovery is incorrect and against the established principles of law. Also, the learned counsel appearing for the vehicle owner would submit that since the vehicle is duly covered under the insurance, the Insurance Company is legally liable to indemnify the vehicle owner and cannot abdicate its legal liability on the ground that the victim did not possess travel ticket, which is not required in the case of the victim. That apart, the learned counsel also submitted that the 8/14 https://www.mhc.tn.gov.in/judis C.M.A.(MD)Nos.653 and 654 of 2020 compensation fixed by the Tribunal is also on the higher side, not commensurate to the evidence placed by the claimant.

9.On a perusal of the impugned award, this Court finds that the Tribunal had erred in appreciating the claim petition in proper perspective. While the claim petition itself has been filed under Section 163-A(1) of the Motor Vehicles Act, the Tribunal has converted the claim petition as if filed under Section 166 of the Motor Vehicles Act and instead of applying the structured formula provided under the Act, had traversed to consider the claim petition, applying multiplier and awarded compensation for conventional and non-conventional heads.

10.The accident took place on 23.02.2000 and the claim petition is filed under Section 163-A(1) of the Motor Vehicles Act, which does not require the claimant to prove the negligence. Therefore, on whose part the negligence need not be looked into. It is suffice to satisfy that the injury sustained by the claimant was a motor accident injury and the documents relied by the claimant undoubtedly proves that he sustained injury while he was thrown out from the bus while travelling. On the date of accident, his daily wage was Rs.112/- as per 9/14 https://www.mhc.tn.gov.in/judis C.M.A.(MD)Nos.653 and 654 of 2020 Ex.P.6. The Tribunal has rightly fixed his annual income as Rs.33,600/-. At the time of accident, the claimant was 39 years old. As per II Schedule of the Motor Vehicles Act , as it was in the year 2002, the compensation for the person whose annual income not exceeding Rs.36,000/- in case of fatal accident was Rs.5,40,000/-. In the present case, the disability certificate indicates that the claimant has become cripple and he cannot lead his day-to-day life without any assistance, hence, his physical disability is ascertained at 75%. However, when it comes to functional disability as a driver, it is 100%, since he cannot drive vehicle and his likelihood is now totally deprived due to the disability. Therefore, this Court holds that though the claimant is alive, his life without livelihood due to the motor accident tantamount to civil death.

11.Regarding the future prospects, the learned counsel appearing for the Insurance Company would submit that the claim under Section 163-A of the Motor Vehicles Act, for injuries and future prospects is not contemplated under the Act and therefore, the claimant is not entitled for future prospects. 10/14 https://www.mhc.tn.gov.in/judis C.M.A.(MD)Nos.653 and 654 of 2020

12.The evidence placed before the Court establishes the following two facts:-

While fixing compensation under the Motor Vehicles Act , the compensation must be fair and adequate. It should neither be pittance or a windfall. In the instant case, 39 years old man, driver by profession, is presently leading a vegetative life, wholly dependant on others. Had he not sustained the injury, his income could not have been the same as it was in the year 2000. Therefore, this Court is of the view that it is a fit case where the future prospects has to be awarded to the claimant. Accordingly, 40% is added to the future loss of income of Rs.5,40,000/-, the compensation to the claimant is fixed as Rs.7,56,000/-. For the said compensation, the claimant is entitled for interest at 7.5% p.a. from the date of petition till the date of realization, excluding the period from 01.04.2003 to 31.12.2003.

13.It is represented that the Insurance Company has already deposited the entire award amount with interest as awarded by the Tribunal. Therefore, the claimant is permitted to withdraw the modified compensation of Rs.7,56,000/- 11/14 https://www.mhc.tn.gov.in/judis C.M.A.(MD)Nos.653 and 654 of 2020 with interest at 7.5% p.a. from the date of claim petition till the date of realization, excluding the period from 01.04.2003 to 31.12.2003, without filing any formal application before the Tribunal. In view of the reduction on the quantum, the Insurance Company is entitled to withdraw the balance amount more than that of the amount now fixed by this Court with interest. Accordingly, C.M.A.(MD)No.653 of 2020 is partly allowed. No costs. Consequently, connected Miscellaneous Petitions are closed.

C.M.A.(MD)No.654 of 2020:-

14.The claimant had travelled in the appellant's bus without ticket being an employee under the appellant. The claim petition clearly indicates that he was returning to his home in the bus after completion of his duty and therefore, he cannot be termed as unauthorized passenger or gratuitous passenger. The Insurance Company cannot wash away its liability on this technical ground. Having collected premium to indemnify the bus owner, against third party claim, the Insurance Company cannot deny their liability. Under the Motor Vehicles Act , the claimant, who is the employee under the offending bus owner, has an option either to resort the Workmen's Compensation Act or the Motor Vehicles Act . In this case, the claimant has opted the Motor Vehicles Act and has filed 12/14 https://www.mhc.tn.gov.in/judis C.M.A.(MD)Nos.653 and 654 of 2020 claim petition under Section 163-A(1) of the Motor Vehicles Act. Therefore, he is entitled for compensation under the structured formula mentioned in Schedule – II of the Motor Vehicles Act, which was in vogue at the time of accident. The reasoning given by the Tribunal to order pay and recovery is not sustainable. Hence, that portion of the award is set aside. The liability to pay the award amount as modified in C.M.A.(MD)No.653 of 2020 is upon the Insurer of the bus viz., the Oriental Insurance Company, Rajapalayam Branch, who is the appellant in C.M.A.(MD)No.653 of 2020. In the result, C.M.A.(MD)No.654 of 2020 is allowed. No costs.