The main legal point established in the judgment is the determination of contributory negligence and the liability of the insurance company under the Motor Vehicles Act, 1988.

JUDGMENT:

1. The appellant is claim petitioner and the respondents are respondents in M.V.O.P.No.118 of 2009 on the file of the Motor Accident Claims Tribunal-cum-II Additional District Judge (Fast Track Court), Parvathipuram.

2. For the sake of convenience, both the parties in the appeal will be referred to as they are arrayed in the claim petition.

3. The claim petitioner filed the petition under Section 166 of the Motor Vehicles Act, 1988 claiming compensation of Rs.2,00,000/- for the injuries sustained by him in a motor vehicle accident which took place on 26.05.2008.

4. The brief averments in the petition filed by the petitioner are as follows:

On 26.05.2008 at about 10.30 a.m. the petitioner, her husband and relatives were travelling in an auto bearing registration No.AP 35YYT/R 3495 from Kothavalasa to Chinaborabanda and when they reached near Gajarayunivalasa village, an unknown person was crossing the road by carrying a paddy bundle, at that time, the driver of the auto drove the auto in a rash and negligent manner at high speed and without blowing horn and dashed against the said person and thereby, the auto fell on the left side of the road, resultantly, the petitioner sustained grievous injuries. The 1st respondent is driver, the 2nd respondent is owner and the 3rd respondent is insurer of the offending auto, hence, all the respondents are jointly and severally liable to pay compensation to the petitioner.

5. Respondent Nos.1 & 2 were set ex parte. The 3 rd respondent/Insurance company filed a written statement by denying the manner of the accident. It is pleaded that the auto in question was plying on the road without permit and the auto was overloaded with more passengers than the sitting capacity and thereby, the 2nd respondent committed breach of terms and conditions of the policy, as such, this respondent is not liable to indemnify the 2nd respondent.

6. Based on the above pleadings of both the parties, the following issues were settled for trial by the Tribunal:

1) Whether the accident occurred due to rash and negligent driving of the auto bearing No.AP 35 YYT/R 3495 by its driver 1st respondent resulting which, the petitioner sustained both simple and grievous injuries?

2) Whether the petitioner is entitled to any compensation? If so, at what quantum and what is the liability of the respondents?

3) To what relief?

7. During the course of enquiry, on behalf of the petitioner, P.Ws.1 to 3 were examined and Exs.A.1 to A.8 and Exs.X.1 and X.2 were marked. On behalf of the 3 rd respondent, R.Ws.1 & 2 were examined and Exs.B.1 to B.6 were marked.

8. At the culmination of the enquiry, after considering the evidence on record and on appreciation of the same, the Tribunal came to the conclusion that the accident took place not only due to rash and negligent driving of the driver of the offending auto but also due to contributory negligence of the petitioner and accordingly, allowed the petition in part and granted a sum of Rs.64,250/- with proportionate costs and interest at 6% p.a. from the date of petition till the date of payment by respondent Nos.1 and 2, while dismissing the claim petition against the 3rd respondent. Being aggrieved by the impugned award, the petitioner preferred the present appeal.

9. Heard the learned counsels for both the parties and perused the record.

10. Learned counsel for the appellant/petitioner would contend that the Tribunal erred in holding that there was 50% contributory negligence on the part of the petitioner and the 3rd respondent/Insurance company cannot escape from the liability of payment of compensation and it has to pay third party risks.

11. Now, the point for determination is:

Whether the order of the Tribunal needs any interference and to what extent?

12. POINT: The Tribunal, on appreciation of the entire evidence on record, came to the conclusion that the accident took place not only due to rash and negligent driving of the driver of the offending auto but also due to con