Motor accident due to contributory negligence.

S. Jagadeesan, J.

The appeal is against the Award of the Motor Accident Claims Tribunal, Coimbatore dated 14.9.2001 passed in M.A.C.T.O.P.575 of 1996. The respondents 1 to 6 are the legal representatives of one Jalal who lost his life in a road accident on 19.11.1995. They filed the said claim petition, claiming a compensation of Rs.6,50,000/-. Under the impugned Award, the Tribunal awarded a sum of Rs.2,20,000/- which is now being challenged in this appeal.

2.The claimants' case is that on 19.1.1995 at about 11.00 a.m when the deceased was travelling in a motor cycle as one of the pillion riders, the bus belonging to the appellant Corporation bearing Registration No.TN-37-N-0616 came in the opposite direction, driven by the driver in a rash and negligent manner and dashed against the motor cycle. Due to the impact, the deceased was thrown away and died on the spot.

3.The claim petition was filed on the basis that the deceased was earning a sum of Rs.3,000/- p.m and now the legal representatives of the deceased lost his contribution to the family and as such they are entitled for the compensation.

4.The appellant herein contested the claim of the respondents 1 to 6 stating that the deceased was travelling in the motor cycle as a pillion rider along with another deceased Mr.Usman. Both the deceased were travelling in the motor cycle along with another one. Hence three persons were travelling in the motor cycle and either without noticing the bus which was coming in the opposite direction or unmindful of the available distance to cross through, the rider of the motor cycle over took the lorry and consequently the accident occurred only due to the rash and negligent driving of the motor cycle. Further when the three persons were travelling in the motor cycle, the rider also could not have complete control of the vehicle and as such the accident was not due to the rash and negligent driving of the bus by the driver. Even assuming that the bus was driven in a rash and negligent manner, there will be a contributory negligence on the part of the driver of the motor cycle in which the deceased was travelling as a pillion rider and there should be proportionate contributory negligence on the part of the two wheeler.

6.On behalf of the appellant Corporation, the driver of the bus was examined as R.W.1. On behalf of the claimants, the father of the deceased was examined as P.W.1. On consideration of the evidence let in by both the parties, the Tribunal determined the age of the deceased as 23.

7.Coming to the income of the deceased, the Tribunal accepted the evidence of the father who deposed that the deceased was employed in a tea-shop and he was earning a monthly income of Rs.3,000/-. Even though there is no documentary evidence or independent witness to speak about the income of the deceased, the Tribunal found that the deceased could have earned an income of Rs.2,000/- p.m and arrived the annual income at Rs.24,000/-. After deducting 1/3rd towards his personal expenses, the Tribunal determined the contribution of the deceased to the family at Rs.16,000/-. Considering the age of the father and mother which are 52 and 48 respectively, adopting the multiplier of 13, the Tribunal determined the total compensation of Rs.2,08,000/-. The Tribunal further awarded a sum of Rs.2,000/- for funeral expenses and Rs.5,000/- towards loss of love and affection to claimants 1 and 2. The Tribunal totally awarded the compensation of Rs.2,20,000/-. As against the same the present appeal has been filed. The Tribunal also found that the accident was due to the rash and negligent driving of the bus.

8.The only contention of the learned counsel for the appellant is that the deceased was travelling as one of the pillion riders in the motor cycle. It is an admitted case that three persons travelled in the motor cycle. When the motor cycle is meant for two persons viz., the rider and a pillion rider, the travelling of three persons is not only illegal bu