1) Aggrieved by the Award dated 01.07.2008 in O.P.No.473 of 2007 passed by the Chairman, M.A.C.T-cum-District Judge, Eluru (for short “the Tribunal”), the 3rd respondent in the O.P/Cholamandalam M.S General Insurance Company Limited preferred the instant MACMA.

2 a) On factual side, on 21.08.2006 when the claimant along with his friend—Kayala Ramu was traveling in a motorcycle bearing No. AP 16 AK 5118, one Muppidi Durga Devi (claimant in MVOP.No.50/2007) requested for lift and boarded the bike and while they were proceeding towards Prattipadu ring road, a Toyota Innova Car bearing No. AP 13 X 1443 being driven by its driver in a rash and negligent manner and at high speed and dashed the motorcycle. As a result of which, the petitioner and two others fell down on the road and claimant sustained grievous injuries. It is averred that the accident was occurred due to the fault of driver of the car. With these averments, the claimant filed O.P.No.473 of 2007 under Section 166 of Motor Vehicles Act, 1988 against respondents 1 and 2, who are the driver and owner and respondent No.3 who is the insurer of the offending car and claimed Rs.4,86,000/- as compensation.

b) Respondent Nos.1 and 2 remained ex parte.

c) Respondent No.3/Insurance Company filed counter denying all the material averments made in the petition and urged to put the claimant in strict proof of the same. R3 denied the avocation and income of the injured. R3 also contended that as the accident occurred due to the fault of motorcyclist, claim against R3 is liable to be dismissed. Finally, R3 contended that the compensation claimed is highly excessive and thus prayed to dismiss the O.P.

d) During trial, PWs.1 to 3 were examined and Exs.A1 to A13 were marked on behalf of claimant. No oral or documentary evidence was adduced on behalf of respondents.

e) The Tribunal on appreciation of both oral and documentary evidence on record, has awarded total compensation of Rs.4,86,000/- with costs and interest at 7.5% p.a. against respondents 1 to 3.

Hence, the appeal by Insurance Company.

3) The parties in this appeal are referred as they stood before the Tribunal.

4) Heard arguments of Sri Kota Subba Rao, learned counsel for appellant/Insurance Company and Sri A. Veeraswamy, learned counsel for respondent No.1/ claimant. R2/ driver is not necessary party in this appeal vide Cause Title. Notice sent to R3/owner was unserved.

5 ) Challenging the award, learned counsel for appellant/Insurance Company contended that the seating capacity of the motor cycle is only two in all but at the time of accident the rider i.e, claimant herein was having triple riding in contravention of Section 128 of M.V. Act and thereby he equally contributed for the accident and hence the Tribunal ought to have fixed the liability for his contributory negligence as 50%. Incidentally he submitted that in connected O.P.No.50 of 2007 (MACMA No.3809 of 2009) filed by another pillion rider, learned MACT-cum-IV Additional District Judge, Tanuku relying upon the decision of this High Court reported in United India Insurance Company Limited vs. K. Anjaiah (2004 (1) LS 332) held that the rider of the motor cycle contributed to an extent of 25% for the accident and though the Insurance Company challenged the said finding in MACMA No.3809 of 2009 on the ground that the Tribunal ought to have fixed 50% of liability on the rider of motorcycle, still the appellant is brining the facts concerning to said case to submit that in the connected case some liability is fixed on the rider of the motorcycle towards his contributory negligence. He submitted that the Tribunal without noticing the judgment of our High Court on the point in issue held as if there was no contributory negligence on the part of the motor cycle rider. He thus prayed to fix 50% of liability on the claimant who is the rider of motor cycle.

a) Nextly, learned counsel challenged the quantum of compensation as high. Showing instances he argued that the disabi