JUDGMENT :

R. THARANI, J.

Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, to set aside the award in M.C.O.P. No. 60 of 2011, dated 14.09.2012 passed by the Motor Accident Claims Tribunal (Principal Subordinate Judge) Tenkasi, Tirunelveli District and to enhance the award amount by allowing this appeal.

1. This Civil Miscellaneous Appeal is filed to set aside the award in M.C.O.P. No. 60 of 2011, dated 14.09.2012 passed by the Motor Accident Claims Tribunal (Principal Subordinate Judge, Tenkasi and to enhance the award amount by allowing this appeal.

2. The appellant herein is the claimant and the respondents herein are the respondents in the claim petition. The appellant has filed a claim petition in M.C.O.P. No. 60 of 2011, claiming compensation for the injuries sustained by the first respondent herein, in an accident that took place on 22.02.2010. The Tribunal has awarded a sum of Rs. 1,54,647/- (Rupees One Lakhs Fifty Four Thousand Six Hundred and Forty Seven only) as compensation. Against which, the appellant has preferred this appeal.

3. A brief substance of the petition in M.C.O.P. No. 60 of 2011 is as follows:

The claimant was working as a driver and was earning Rs. 8,000/- (Rupees Eight Thousand only). On 22.02.2010 at about 09.30 a.m. the first respondent drove his motorcycle bearing Registration No. TN-76-B-0061 in a rash and negligent manner and dashed against the motorcycle driven by the claimant. The claimant sustained injuries in the accident and undergone two surgeries and he was permanently disabled and prayed a sum of Rs. 10,00,000/- (Rupees Ten Lakhs only) as compensation.

4. A brief substance of the counter of the petition in M.C.O.P. No. 60 of 2011 is as follows:

The first respondent drove his two wheeler in a careful and cautious manner, it was the claimant, who was in a rash and negligent manner, suddenly turned the vehicle and dashed against the first respondent and the petitioner himself has invited the accident. Though FIR was against the first respondent, subsequently it was closed as mistake of fact. The first respondent is not responsible for the accident and hence, the second respondent is not liable to pay compensation.

5. After the trial, the Tribunal fixed the liability on the first respondent and passed an award of Rs. 3,09,294/- towards compensation, and held the first respondent liable for 50 % of compensation awarded to the claimant. Against the award, the claimant preferred this appeal.

6. On the side of the appellant, it is stated that the appellant followed the road rules carefully. The accident has taken place only due to rash and negligence driving of the first respondent. The Tribunal failed to consider Ex.P1, FIR and Ex.P5, charge-sheet and fixed contributory negligence on the part of the appellant and that the Tribunal has wrongly fixed contributory negligence on the part of the appellant.

7. On the side of the insurance company, it is stated that since the accident was only due to rash and negligence driving of the appellant, the FIR registered against the first respondent was closed as ‘mistake of fact’ and the final report was marked as Ex.P5. In the closure report, it was mentioned that the claimant drove his vehicle in a rash and negligent manner.

8. FIR, rough sketch and M.V. Report were marked. RW-2 gave evidence in support of the first respondent. The Tribunal has fixed the liability on both the appellant and the first respondent for the accident. The FIR lodged against the first respondent was closed as mistake of fact. The report reveals that the claimant was driving his vehicle in a rash and negligent manner at the time of accident.

9. In view of the above discussion, this Court decides that the accident took place due to the rash and negligent driving of both the claimant and the first respondent. It is decided that the deceased is liable for 50 % contributory negligence.

10. On the side of the second respondent, it is stated that the first respo