The determination of contributory negligence and compensation in motor accident claims based on evidence and legal principles.

R. Subramanian, J.

These two appeals arise out of the award of the motor accident claims Tribunal (Additional District Court, Namakkal) dated 17.02.2015 made in M.C.O.P. No.83 of 2013. While, the appeal in C.M.A. No. 2758 of 2015 filed by the injured claimant seeking enhancement of the compensation awarded, the appeal in C.M.A.No.2216 of 2016 is filed by the Insurance company challenging the quantum of compensation awarded as excessive.

2. The case of the claimant/appellant in C.M.A.No.2758 of 2015 before the Claims Tribunal was that while he was riding his motor cycle bearing registration No.TN-28-AF-0331 near old RTO Office in Namakkal to Salem main road on the left side of the road towards Namakkal town from Salem. The TATA ACE goods vehicle bearing registration No. TN-28-AK-1831 belonging to the 1st respondent in C.M.A.No.2758 of 2015 was driven by its driver in a rash and negligent manner at a high speed in the opposite direction and hit against the motor cycle. As a result of the impact, the claimant/appellant was thrown out of the motor cycle and he sustained multiple grievous injuries and compound fractures in his head, both legs, both hands, chest and some other injuries all over the body. Contending that the accident occurred only due to the rash and negligent driving of the goods carrier. The claimant sought for a compensation of Rs. 40,00,000/-.

3. The claim was resisted by the Insurance company contending that the Police has closed the criminal case as mistake of fact and therefore, the driver of the goods carrier cannot be hold responsible for the accident and hence, the Insurance company is not liable to pay the compensation. It is claimed that the injured himself contributed to the accident as he drove the vehicle in a rash and negligent manner. It was also contended that the driver of the goods carrier did not have a license and therefore, the Insurance company cannot be made liable to pay the compensation.

4. The Tribunal on the consideration of the evidence on record concluded that both the drivers namely, the injured claimant as well as the driver of the goods vehicle were responsible for the accident. To arrive at the said conclusion the Tribunal relied upon the charge sheet Ex: A4 and the fact that the driver of the goods vehicle had admitted guilt and has paid fine before the Criminal Court. The Tribunal, however, took into account the fact that three persons had travelled in two wheeler had contributed to the accident. Therefore, the Tribunal apportioned the contributory negligence at 50% each on the both drivers.

5. On the quantum of compensation, the Tribunal determined the age of the claimant as 26 years based on the date of birth in his 10th standard mark list. The injured claimant had pleaded that he was employed as a Marine Engineer in Univan Ship Management Limited and was earning a sum of Rs. 25,000/- per month. The Tribunal took into account the qualifications of the claimant. Though, the Tribunal found that there was no documentary evidence to show that the injured claimant was drawing a sum of Rs. 25,000/- per month as salary, the Tribunal fixed his income at Rs. 20,000/- based on the qualifications as well as the fact he has been working as a Marine Engineer in Mumbai. The Tribunal on the basis of the disability certificate marked as Ex.P24 and the injuries reflected in the discharge summary marked as Ex.P6 concluded that the injured claimant had suffered 65% functional disability. The Tribunal, thus, worked out the loss of future earning power at Rs. 28,08,000/- (20,000 x 12 x 18 x 65/100). The Tribunal has also awarded a sum of Rs. 5,39,138/- towards medical expenses, Rs. 50,000 towards pain and suffering, Rs. 10,000/- towards extra-nourishment, Rs. 25,000/- towards travel expenses, Rs. 20,000- towards attender charges and Rs. 50,000/- towards loss of expectation of life. In all, the Tribunal has arrived at Rs. 35,02,138/- which is rounded off to Rs. 35,02,100/-. In view of the fact tha