The main legal point established in the judgment is the apportionment of contributory negligence in a motor accident and the modification of compensation calculation under 'loss of dependency' based on the deceased's income and age at the time of death.

R.SUBBIAH, J.,

1. Challenging the correctness of the Award (14.12.2010) passed by the Motor Accidents Claims Tribunal (Chief Judicial Magistrate), Vellore, in M.C.O.P.No. 138 of 2009, Royal Sundaram Alliance Insurance company has preferred this appeal.

Respondents 1 to 4 are claimants before the Tribunal and they are the legal heirs of deceased R.Vasanthan, who had died in a motor accident occurred on 28.01.2009.

2. Brief facts are as follows:

On 28.01.2009 at about 5.00 PM while one R.Vasanthan was riding the motor cycle bearing registration No.TN-23-AS-2504 at Sipcot near Reliance Petrol Bunk, in the same direction, a car bearing registration No.TN-23-AF-0048 came in a rash and negligent manner with a hectic speed and hit the backside of the motor cycle. In that process, the said Vasanthan sustained grievous injuries on his head and all over his body and immediately he was admitted in C.M.C.Hospital Vellore, where he died. The accident is the result of rash and negligent driving of the driver of the car. Hence, respondents 1 to 4 made a claim as against the owner as well as the insurer of the car.

3. Resisting the said case, Insurance company filed a counter stating that the accident had occurred only due to the negligent riding of the two wheeler by the deceased and as such, they are not liable to pay the compensation amount.

4. Before the Tribunal, on the side of claimants, the 1st respondent examined herself as P.W.1 besides examining two other witnesses as P.Ws.2 and 3 and marked 15 documents as Exs.A-1 to A-15. On the other side, driver of the car was examined as R.W.1 and the Investigator appointed by the Insurance Company was examined as R.W.2 and two documents were marked as Exs.R-1 an R-2. The Tribunal, after considering the entire evidence, came to the conclusion that the accident had occurred due to the negligent act of the driver of the car in question. By coming to such a conclusion, the Tribunal assessed the compensation under different heads and passed an award for a sum of Rs.37,33,248/-and thus, directed the Insurance Company to pay the said amount, by indemnifying the owner of the car. Aggrieved over the same, the present appeal has been filed.

5. It is the submission of the Appellant-Insurance company that on the date of accident, the car was proceeding from west to east on MBT Main Road. While so, Appellant came in a rash and negligent manner from north to south and entered the main road without noticing the oncoming vehicle and in that process, the two wheeler hit against the car and thus, the deceased himself got involved in the accident. Hence, the driver of the car cannot be held responsible for the accident. It is the further submission that the Criminal Court had also acquitted the driver in the criminal Case filed against him. But, the Tribunal without properly appreciating the evidence of R.Ws.1 and 2, has fixed the entire liability on the part of the insured vehicle. Under such circumstances, the Award is liable to be set aside.

6. On the contrary, it is the submission of respondents 1 to 4 that while the two wheeler was proceeding on the main road, the car, which came from its behind, dashed against the two wheeler and thus, caused the accident. It is further submitted that the damages entry made in Motor Vehicle's Report with regard to the damages caused to the two wheeler, marked as Ex.P-3, would clearly prove the case of claimants that the accident had occurred only due to the negligent driving of the driver of the car.

7. Keeping in mind the submissions of both sides, we have carefully perused the materials available on record. By a perusal of site sketch marked as Ex.R-2 on the side of Appellant Insurance Company, it is seen that the two wheeler was shown lying on the main road; that the accident had occurred when the deceased came from north to south and when he made an attempt to turn the two wheeler on his right side on the main road without noticing the oncoming vehicles