The main legal point established in the judgment is the application of the principle of contributory negligence in determining liability and apportioning compensation in motor accident cases.

A.D.JAGADISH CHANDIRA, J.

This Appeal has been filed by the Insurance Company, challenging the judgment and decree passed by the Tribunal holding that the accident had occurred solely due to rash and negligent driving on the part of R.W.1, driver of the vehicle belongs to the 6th respondent herein, insured with the appellant herein and directing the appellant to pay compensation to the respondents/petitioners 1 to 5.

2. Brief facts leading to the filing of the M.C.O.P.No.2 of 2011 on the file of the Motor Accident Claims Tribunal, Dharmapuri (Principal Sub-Judge, Dharmapuri) is that while on 11.08.2010 at about 7.05 p.m., the deceased, who is the husband of the first respondent and the father of the respondent 2 to 4 and son of the 5th respondent, was returning to his home by riding his motor cycle bearing registration No. TN 29 AZ 5788, nearby PMP College Junction Road in Salem to Krishnagiri Road, an Indica Car bearing registration No.TN 28 AB 5271 belonging to the 6th respondent and insured with the appellant was coming from Salem to Krishnagiri, and it was driven in a rash and negligent manner and without raising any horn dashed against the motor cycle, as a result of which the deceased was thrown out of the motor cycle and sustained fatal injuries. Immediately, he was taken to Manipal Hospital, Salem and admitted as inpatient on 11.08.2010 and inspite of the treatment given to him, he died in the hospital on 23.08.2010. According to the respondents 1 to 5, the accident had occurred only due to the rash and negligent driving of the driver of the car. At the time of accident, the deceased was aged 43 years and he was working as BT Assistant and was earning Rs.24,939/- per month. The respondents 1 to 5 claimed Rs.59,85,000/- on various heads and restricted to Rs.50,00,000/- towards compensation on various heads. The 6th respondent who is the owner of the vehicle and the appellant who is the insurer of the vehicle are jointly and severally liable to pay the compensation to the respondents 1 to 5.

3. Opposing the claim of the respondents 1 to 5 before the Tribunal, the appellant had filed a counter statement inter alia contending that the allegations in the claim petition are false and that the driver of the Indica Car TN 28 AB 5271 did not drive the same either rashly or negligently and that on the other hand, the deceased only came in a rash and negligent manner and suddenly crossed the road and hit against the car and thus he himself got involved in the accident. The driver of the car had no valid licence to drive the car at the time of accident. The deceased had no valid licence to drive the motor cycle at the time of accident. Hence the appellant is not liable to pay any compensation to the respondents 1 to 5. The appellant denied the income and occupation of the deceased and submitted that the claim amount is highly excessive and exorbitant. The owner and insurance company of the motor cycle are necessary parties and the claim petition is liable to be dismissed for non-joinder of necessary parties. Hence the appellant-insurance company prayed for dismissal of the claim petition.

4. Before the Tribunal, on the side of the claim petitioners, three witnesses were examined as P.W.1 to P.W.3 and marked 16 documents as Ex.P1 to P16. On the side of the appellant, the driver of the car was examined as R.W.1 and one document was marked as Ex.R1.

5. The learned Tribunal after considering the oral and documentary evidence available on record, has awarded compensation of Rs.40,55,617/- with accrued interest at 7.5% from the date of petition till the date of realization and directed the appellant to pay the compensation to the respondents 1 to 5 on behalf of the 6th respondent. The learned Tribunal has also made apportionment Rs.20,00,000/- to the first respondent with accrued interest thereon and Rs.6,00,000/- with accrue