The main legal point established in the judgment is the application of the principle of contributory negligence and duty of care in determining liability and apportionment of negligence in fatal accidents.

JUDGMENT

(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree, dated 25.03.2015 made in M.C.O.P.No.18 of 2011 on the file of Motor Accidents Claims Tribunal / Additional District Judge, Pudukkottai.)

1. C.M.A(MD)Nos.263 and 264 of 2016 were filed by the appellant/National Insurance Company, challenging the common award passed in M.C.O.P.Nos.18,19 and 20 of 2011 on the ground of quantum and contributory negligence.

2. C.M.A(MD)Nos.60, 61 and 62 of 2022 were filed by the respective claim petitioners seeking enhancement of compensation passed in the common judgment in M.C.O.P.Nos.18, 19 and 20 of 2022.

3. For the sake of convenience the parties are referred to as per their ranking before the trial Court.

4. By consent of both the parties, these appeals are heard together and disposed of by way of common judgment.

5. All these three claim petitions in M.C.O.P.Nos.18, 19 and 20 of 2011 came to be filed in connection with the accident taken place on 21.10.2010 wherein three persons have travelled in the Indigo car bearing Registration No.TN-55-A-D-0001 driven by the driver, namely, Vasanth and the other two persons namely, Vivekanandan and Panneerselvam are the occupants of the car. All the three claim petitions have been filed for the death of the said Vasanth, Vivekanandan and Panneerselvam. The claim petitioners both in the claim petition as well as in their evidence could depose that on 21.10.2010 in the morning, the car bearing Registration No.TN-55-A-D-0001 had driven by Vasanth along with Vivekanandan and they went to Chennai Airport to receive Panneerselvam, who came from abroad to attend the death of his mother at Alangudi. After receiving Panneerselvam, when they were return to Alangudi moving from west to east at about 11.15 p.m., at Ulundurpet by-pass road, near Viruthachalam bridge, when the Indigo car driven by Vasanth, and Vivekandan and Panneerselvam are the occupants of the car, at the time, the lorry owned by the first respondent insured with the second respondent bearing Registration No.TN-32-1566 was driven by the driver in a rash and negligent manner and without noticing the car following them, the lorry all of a sudden on the western side of the mud road portion, without giving any signal or hand indication turned on the right hand side. In the said process, the Indigo car driven by Vasanth has dashed on the backside of the lorry and the occupants Vivekandan and Panneerselvam and the driver Vasanth all the three died in the crush injury on the spot and according to PW1 evidence, the accident had taken place due to the rash and negligent driving of the driver of the first respondent lorry. Ex.P1-FIR was registered against the driver of the lorry.

6. Before the trial Court, PW1 to PW8 were examined and Ex.P1 to Ex.P22 were marked. On behalf of the respondents, no oral or documentary evidence had been adduced.

7. On consideration of both oral and documentary evidence, the tribunal has held that the accident has taken place due to the contributory negligence of both the drivers of the vehicle and also apportioned the contributory negligence on 75% on the driver of the first respondent lorry and 25% of the driver of the Indigo car(Vasanth), whose legal heirs are the claim petitioners in M.C.O.P.No.18 of 2022 and awarded compensation.

8. Challenging the fixing of 25% on the part of the driver of the car, the appellant insurance company in M.C.O.P.Nos.19 and 20 of 2011 has filed C.M.A(MD)Nos.263 and 264 of 2016. After service of summon in the above CMAs, all the three claim petitioners have been filed their respective C.M.A(MD)Nos.60,61 and 62 of 2022.

9. It remains to be stated that though the insurance company chooses to challenge the award passed in the M.C.O.P.Nos.19 and 20 of 2011 in C.M.A(MD)Nos.263 and 264 of 2016 on the ground of contributory negligence, however, has not filed any appeal in respect of the award passed in M.C.O.P.No.18 of 2011. In th