Contributory negligence and apportionment of liability in motor accident cases.

1. The above Civil Miscellaneous Appeal has been filed by the appellants/respondents against the Award and Decree, dated 08.07.2005, made in M.C.O.P.No.1567 of 2002, on the file of the Motor Accident Claims Tribunal, Additional District Court, Fast Track Court-I, Salem, awarding a compensation of Rs.4,12,500/- together with 7.5% interest per annum, from the date of filing the claim petition till the date of payment of compensation.

2. Aggrieved by the said Award and Decree, the appellants/respondents have filed the above appeal praying to scale down the award and decree passed by the Tribunal.

3. The short facts of the case are as follows:

On 02.02.2001, the deceased Senthil Kumar went along his friends to Kumaragiri and then he returned towards his home with his friends in a TVS Chamber bearing registration No.TN27 J0801. The deceased Senthil Kumar rode the same and the others were accompanying behind him. When at around 04.00 p.m. they came near the Erumapalayam Branch road on the Udayapatti-Seelanaickenpatti Bye pass road, the deceased Senthil Kumar rode the vehicle on the left side of the road very slowly and in a careful manner. At that time, the bus bearing registration No.TDL939, belonging to the second respondent and insured with the first respondent came in the opposite side ie.from Seelanaickenpatti side to Udayarpatti side. The driver of the bus drove the bus with a very high speed and in a rash and negligent manner and also he drove on his extreme right side of the road and dashed against the deceased Senthil Kumars motorcycle. In the result, he sustained head injury and on the spot itself he died. Regarding the said accident, the Salem City Traffic Investigation Police registered the case against the said bus driver in Crime No.57/2001 under Sections 279, 337 and 304 (A) I.P.C. At the time of the accident, the deceased was hale and healthy and was aged about 24 years old. He was running printing press and earning a sum of Rs.12,000/-per month. The first petitioner is the father, second petitioner is the mother and the third petitioner is the younger sister of the deceased. The accident had happened only due to the rash and negligent driving of the driver of the bus. As such, the petitioners claimed a compensation of Rs.10,00,000/- before the Tribunal.

4. The second respondent/United India Insurance Co., Ltd., in their Counter, had resisted the claim petition, which reads as follows:

"This respondent submits that the contents in paras 1 to 23 are false. This respondent submits that the deceased was aged more than 24 years and not 24 years as alleged. The deceased was not doing printing press work as alleged in para 4. It is false to allege that the deceased Senthil Kumar was running a printing press under the name and style Senthil Kumar Printers at Salem. The income of the deceased at Rs.12,000/-is false and the same is further falsified by the averments in para 7. the contents in para 8 are all false. The accident did not occur as alleged in para 8. the contents in para 10 are false. The deceased was riding the TVS50 with two persons as pillion riders. The alleged damages as stated in para 11(a) are false. The contents in paras 19 and 20 are also false since the petitioners are not depending on the deceased. The amount of compensation claimed in para 21 at Rs.10,00,000/-is not only high but also out of proportion to the alleged income and age of the deceased. The claims under various heads in parts I and II of para 21 towards loss of earnings at Rs.5,00,000/- partial loss of earnings at Rs.3,00,000/-, Rs.3,000/- for transport to hospital, Rs.3,000/-for damages to clothing and articles, Rs.2,00,000/- for loss of sons affection, Rs.5,00,000/-for future prosperity, Rs.10,000/- for funeral expenses, Rs.5,00,000/- for pain and suffering, Rs.1,00,000/- for compensation for permanent disability and Rs.5,00,000/-for loss of earning power are not only false but also highly excessive and arbitrary."

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