Apportionment of liability done by Court.

RAMANUJAM, J. :- The claimant in O.P. No. 183 of 1978, on the file of the Motor Accidents Claims Tribunal, Madras, dissatisfied with the award passed by the Tribunal, has filed the appeal claiming not only higher compensation, but also an award

which is enforceable as against the Insurance Company.

2. On 11-3-1978 at about 4.30 p.m. one Kalaisekar, a boy aged about 12 years, was travelling in a cycle as a pillion rider. At that time a car TMW 2966 coming from behind knocked down the cycle as well as the pillion rider and run over him, resulting in his instantaneous death. Alleging that the accident was due to rash and negligent driving of the driver of the car, the mother of the deceased filed a claim petition claiming a compensation of Rs. 25,000/- for the loss of her son, as against the owner of the car and the Insurance Company with which the car had been insured.

3. The said claim petition was not opposed by the owner of the car. He remained ex parte.

4. The Insurer opposed the claim of the petitioner on the ground that the car was driven at the relevant time by an unauthorised person, who had no valid driving licence to drive the vehicle, that the driver has been prosecuted under S.3 read with Section 112 of the Motor Vehicles Act, for driving the vehicle without having a valid licence, that the owner of the car has also been prosecuted under Sec.5 of the Motor Vehicles Act for permitting a person to drive the vehicle without a valid driving licence, that therefore the Insurance Company is not at all liable to meet the claim, and that in any event the claim of compensation at Rs. 25,000/- was highly exaggerated.

5. On these pleadings, the Tribunal set down the following three questions for consideration-

1. Whether the car driver was responsible for the death of the boy ?

2. Whether the second respondent Insurance Company is not liable for the claim ?

3. What is the quantum of compensation, if any payable by any of the respondents ?

On the first question, the Tribunal after considering the evidence adduced before it, held that the accident was solely due to the rash and negligent driving of the driver of the car. That finding has become final and the same is not under challenge before us. On the same question the Tribunal found that though the driver of the car was rash and negligent in driving the vehicle, the accident was also due to the contributed negligence on the part of the deceased. Therefore, it apportioned the liability for the accident at 70:30 per cent as between the driver of the car and the cyclist.

6. On the quantum of compensation the Tribunal held that, having regard to the age of the boy at the time of his death and the family surroundings and the education he was having at the time of the accident, a sum of Rs. 15,000/- shall be a fair and reasonable compensation. However, based on the apportionment of the blame for the accident, it fixed the compensation payable to the claimant at Rs. 10,500/-. Not satisfied with the same sum, which has been awarded as compensation, the claimant has come before us seeking higher compensation. The Tribunal also found that at the time of the accident, the driver of the car did not have a valid licence to drive the vehicle and therefore under the terms of the policy the Insurance Company can disclaim liability. In that view, the Tribunal dismissed the claim petition as against the Insurance

Company.

7. In this appeal the appellant seeks to make the Insurance Company also liable for any compensation that may be fixed by this Court in appeal. Thus the questions that arise for our consideration are :

1. What is the quantum of compensation payable to the claimant?

2. Which of the respondents is liable to pay the compensation fixed by this Court?

3. Whether the cyclist, in which the deceased was travelling as a pillion rider, has contributed in any way by his negligence to the accident in question?

Question No. 3 : We will take up the last question first. It has been found by