Contributory negligence cannot be considered in claims made under Section 163-A of the Motor Vehicles Act.

1. This appeal is preferred by the appellants/claimants as against the Award and decree dated 26.06.2007 made in M.C.O.P.No.3805 of 2004 on the file of the Motor Accidents Claims Tribunal (V Judge, Court of Small Causes), Chennai questioning the reduction of the amount on the ground of contributory negligence.

2. The facts of the case are as follows:

On 08.03.2004 at about 8.30 p.m when the deceased a IX standard student was travelling as a passenger in Metropolitan Transport Corporation Bus bearing Registration No.TN-01 N-0136, the bus was driven by its driver in a rash and negligent manner with heavy speed from East to West at Vijayaraghava Road and when it took a left turn to go towards Parthasarathy Bridge, the deceased fell down from the bus and left rear wheel ran over the deceased. The deceased was immediately taken to the hospital, but he died on the way to the hospital. Hence, the claimants claimed a sum of Rs.1,74,500/- as compensation before the Tribunal and the Tribunal awarded a sum of Rs.81,000/-. Aggrieved against the same, the claimants who are the parents of the deceased have come forward with this appeal.

3. The deceased is the son of the appellants and the deceased was studying in IX Standard at the time of the accident.

4. According to the learned counsel for appellants, the deceased was travelling in the Metropolitan Transport Corporation Bus and he fell down from the bus when brake was applied by the driver. The lower Court taking into consideration the defence taken out by the Transport Corporation that the deceased was a passenger standing in the foot-board in violation and has contributed to the accident, reduced 50% of the amount from the award towards contributory negligence. Challenging this portion, the claimants filed the appeal and would contend as the petition is under Section 163-A of the Motor Vehicles Act, while so, the lower Court ought not to have gone into the question of contributory negligence at all unfortunately, the Court below deducted amount towards contributory negligence. Hence, this appeal.

5. Heard both sides. The learned counsel appearing for the appellants relied upon three decisions namely, 2009 ACJ 214 – Usha Rathore and others .Vs. National Insurance Co., Ltd. and others Division Bench judgment of Madhya Pradesh High Court, 2004 ACJ 934 – Deepal Girishbhai Soni and others .Vs. United India Insurance Co.,Ltd. the three Judges Bench of the Supreme Court and the latest decision of this Court made in C.M.A.No.1450 of 2003 dated 28.6.2010 wherein the question of contributory negligence under Section 163 A of the Motor Vehicles Act was discussed and it was finally held that in a petition under Section 163-A, contributory negligence cannot be gone into. It was also admitted that there was over crowding in the bus. Under Such circumstances, the appellants would only contend that since the accident was admitted liability to pay compensation was also admitted, reduction of 50% towards contributory negligence by the Court below has to be set aside.

6. The learned counsel appearing for the respondent would contend that in view of the fact that the deceased person died in the accident when he was travelling in the foot-board, which is against law, he has definitely contributed to the accident and there is nothing wrong in invoking contributory theory by the Court below even though the claim was made under Section 163 A. Therefore, absolutely there was a contributory negligence on the part of the deceased. Hence, the appeal filed by the claimants may be dismissed.

7. Heard both sides. The short point for consideration in the appeal is whether the question of contributory negligence can be taken into consideration in the appeal, when the petition filed is under Section 163-A.

8. In this case, the accident is admitted. The liability to pay compensation is also admitted by the Transport Corporation. But, dispute between the parties in this appeal is whether the Court below could re