JUDGMENT :

(Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, against the judgment and decree, dated 15.11.2008, made in M.C.O.P.No.101 of 2006, on the file of the Motor Accident Claims Tribunal, Subordinate Judge, Sivakasi.)

1. This Civil Miscellaneous Appeal is filed against the order, dated 15.11.2008, made in M.C.O.P.No.101 of 2006, on the file of the Motor Accident Claims Tribunal, Subordinate Judge, Sivakasi.

2. The appellant herein is the third respondent, the respondents 1 to 4 herein are the claimants and the fifth respondent herein is the first respondent and the sixth respondent herein is the second respondent in the original claim petition.

3. Brief substance of the petition in M.C.O.P.No.101 of 2006 is as follows:-

On 23.08.2005, the deceased/Thanam Jeyaraj was riding his two wheeler bearing Registration No.TN-67-E-1145 along the Sattur to Virudhunagar road, at that time, a lorry that belonged to the first respondent bearing Registration No.TN-33-AB-0901, came from the opposite direction in a rash and negligent manner and dashed against the two wheeler. The deceased sustained injuries and died on the spot. The claimants are his dependents and they claimed a sum of Rs.15,00,000/- as compensation.

4. Brief substance of the counter filed by the second respondent in M.C.O.P.No.101 of 2006 is as follows:-

The first respondent's driver was careful and cautious in driving the vehicle. It was the deceased, who ride the bike, in a rash and negligent manner and has invited the accident. The age, occupation and income are all denied. The respondents 4 and 5 are not dependents of the deceased. The claim is excessive. There is a valid insurance coverage for the lorry.

5. Brief substance of the counter filed by the third respondent in M.C.O.P.No.101 of 2006 is as follows:-

The manner of the accident is denied. The third respondent is the insurer of the two wheeler driven by the deceased. The driver of the bigger vehicle has to be more careful and cautious. The third respondent is only a formal party. The deceased vehicle was having only third party coverage and the policy does not cover the owner's personal injury.

6. Two witnesses were examined and Eleven documents were marked on the side of the petitioners. One witness was examined and no document was marked on the side of the respondents. One third party document was marked.

7. The trial Court, after considering both sides, has awarded a sum of Rs.4,15,000/- as compensation to be equally paid by both the respondents 2 and 3. Against the same, the third respondent/appellant has filed this Civil Miscellaneous Appeal.

8. On the side of the appellant, it is stated that the Tribunal erroneously fixed contributory negligence on the deceased. The liability of the appellant/United India Insurance Company is restricted to Rs.1,00,000/- as per the statute. The entire liability ought to have been fixed on the driver of the lorry. The lorry driver was convicted by the Criminal Court. Fixing 50% contributory negligence on the part of the deceased is unreasonable.

9. On the side of the respondents 1 to 4/ claimants, it is stated that the Tribunal ought to have considered that the liability of the appellant/United India Insurance Company is restricted to Rs.1,00,000/- for the driver cum owner of the two wheeler and that the remaining amount ought to have been ordered to be paid by the sixth respondent/ National Insurance Company for the lorry.

10. On the side of the respondents 1 to 4/ claimants, it is further stated that the responsibility is more on the heavy vehicle than on the two wheeler and the negligence should be fixed on the lorry driver. A judgment of this Court in C.M.A.No.1726 of 2011, dated 24.06.2019 (Managing Director V. Raja) is cited, wherein it is stated as follows:-

“10.1. On consideration of both oral and documentary evidence and also taking note of the manner of the accident, the Tribunal has rightly held that both the driver of the Transport C