Apportionment of contributory negligence and liability for compensation under the Motor Vehicles Act.

JUDGMENT

(Prayer in CMA.No.2011 of 2017: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the award and decree dated 22.12.2016 in MCOP No.278 of 2015 on the file of the Motor Accident Claims Tribunal / II Additional District Judge, Poonamallee.

CMA.No.3081 of 2017: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 to enhance the award against the order and decree dated 22.12.2016 in MCOP No.278 of 2015 on the file of the Motor Accident Claims Tribunal / II Additional District Judge, Poonamallee.)

Common Judgment

1. Both the Civil Miscellaneous Appeals arise from the judgment and decree dated 22.12.2016 in MCOP No.278 of 2015 on the file of the Motor Accident Claims Tribunal / II Additional District Court, Thiruvallur, Poonamallee. The 2nd respondent / Insurance Company in MCOP No.278 of 2015 had filed CMA.No.2011 of 2017. The claimants in MCOP No.278 of 2015 have filed CMA No.3081 of 2017.

MCOP No.278 of 2015:-

2. The Claim Petition has been filed by the son and daughter of deceased S.Usharani who was travelling as a pillion rider in a Kinetic Honda motorcycle bearing Regn. No.TN-07-B-9911 on 21.11.2014 at around 10.15 a.m. At that particular time when the motorcycle was at Ambattur Soorapedu Shanmugapuram near Iyappan Koil, it was alleged that the driver of the motorcycle drove the vehicle in a rash and negligent manner and another motorcycle bearing Regn.No.TN-20-AX-3003 dashed against the Kinetic Honda motorcycle owing to which Usharani fell down and sustained severe head injuries. She was admitted to Apollo Hospital, but unfortunately died. Claiming that the accident occurred owing to the rash and negligent manner in which the driver of the Kinetic Honda motorcycle bearing Regn.No.TN-07-B-9911 was driven, the Claim Petition was filed seeking compensation of Rs.15,00,000/-. The 1st respondent was the owner of the motorcycle and also incidentally the husband of Usharani and father of the claimants. The 2nd respondent was the insurer of the motorcycle.

3. A counter was filed on behalf of the 2nd respondent disputing the manner in which the accident was stated to have occurred. It was stated that the deceased was actually walking as a pedestrian in the said road when a cyclist hit her and since the deceased was a chronic type one sugar patient for 12 years, she suffered giddiness and fell down on the road and sustained the injuries. She was sent to S.V.Hospital Ambattur and later shifted to Apollo Hospital. After that she was in Government Rajiv Gandhi Hospital, Chennai, where she died of sub dural Heamorrhage in left cerebral ventricular Haemorrhage by linear fracture of 7 cm in the center of posterior carnial fossa due to head injuries. But not due to this accident. It was stated that both the motorcycles mentioned in the Claim Petition were not involved in the accident. The Poonamallee Traffic Investigation Police Station had filed a First Information Report against the driver of the two wheeler bearing Regn.No.TN-20-AX-3003. It was stated that the 1st respondent did not have proper driving license and the vehicle was also not insured. It was stated that the claim petition should be dismissed

4. An additional counter was filed claiming that the driver of the Kinetic Honda motorcycle bearing Regn.No.TN-07-B-9911 / 1st respondent was driving the vehicle at moderate speed, when another two wheeler bearing Regn.No.TN-20-AX-3003 driven in a rash and negligent manner had dashed against the two wheeler of the 1st respondent. It was stated that in the Claim Petition the driver or the owner of the offending vehicle was not impleaded as a party. It was also stated that the 1st respondent was also responsible for the accident. It was stated that the driver of the motorcycle bearing Regn.No.TN-20-AX-3003 had been charged under Sections 279, 337, 304-A IPC and 134(a)(b) read with Section 187 of Motor Vehicle Act, 1988. It was stated that the said driver was solely r