The main legal point established in the judgment is the application of contributory negligence in determining compensation in motor accident claims.

JUDGMENT

(Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the award and decree made in M.C.O.P.No.132 of 2017, dated 23.04.2019, on the file of the Motor Accident Claims Tribunal / II Additional Sub Court, Nagercoil.)

1. This Civil Miscellaneous Appeal has been filed against the award made in M.C.O.P.No.132 of 2017, dated 23.04.2019, on the file of the Motor Accident Claims Tribunal / II Additional Sub Court, Nagercoil. The appellant herein is the third respondent, the respondents 1 to 3 herein are the claimants and the respondents 4 and 5 herein are the respondents 1 and 2 in the original claim petition.

2. Brief substance of the petition, in M.C.O.P.No.132 of 2017, is as follows :-

On 02.07.2015, at about 08.30 pm., when the deceased- Arumuganainar was driving his motorcycle, bearing Registration No.TN-74- J-2979 from Rajakkamangalam – Keelachattuvan Thoppu, near Pillaiyar vilai Sudalaimadaswamy Koil, a bus bearing Registration No.TN-74- N-1048 was driven by its driver in a rash and negligent manner, came from the opposite direction, dashed against the motorcycle. The deceased was working as a Guard in the Pommi Pidukappu Sangam, Ethanmozhi and was earning Rs.10,247/- per month. The petitioners are his dependents and they claimed a sum of Rs.22,80,000/- as compensation.

3. Brief substance of the counter filed by the first respondent,in M.C.O.P.No.132 of 2017, is as follows:-

The first respondent drove the bus in a slow manner, keeping the left side. It was the deceased, who rode the two wheeler in a rash and negligent manner along the wrong side of the road and he invited the accident. The first respondent is only a servant of the second and third respondents and the respondents 2 and 3 are vicariously liable to pay compensation.

4. Brief substance of the counter filed by the third respondent, in M.C.O.P.No.132 of 2017, adopted by the second respondent is as follows:-

The nature of injuries, details of damages are all denied. There is no negligent on the part of the first respondent. Nature and manner of the accident as narrated in the petition is wrong. The first respondent drove the vehicle with due care and caution, observing the traffic rule. It was the motorcyclist, who came from the opposite direction in a rash and negligent manner and he lost his control and fell down on the road. The motorcyclist was not wearing helmet and prayed the petition to be dismissed.

5. On the side of the petitioners, 3 witnesses were examined and 14 documents were marked. On the side of the respondents, no witness was examined and no document was marked. One document was marked as Ex.X1. The Tribunal after considering both sides, awarded a sum of Rs. 14,02,084/- as compensation.

6. Against the award, the appellant approached this Court by way of this appeal, on the following grounds :-

The Tribunal is wrong in fixing the entire negligent on the bus driver. The Tribunal ought to have fixed the entire negligent on the deceased. Fixing the monthly income as Rs.10,247/-, on the basis of Ex.P8, is excessive. The Tribunal added 25% towards future prospects and applied multiplier 13', which are all excessive. The Tribunal awarded Rs.40,000/- towards loss of consortium Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses, which are all very high.

7. On the side of the appellant, it is stated that the Tribunal failed to fix atleast contributory negligence on the part of the deceased. The deceased was not wearing helmet. FIR was registered only against the deceased. The Tribunal is wrong in fixing 25% as future prospects.

8. On the side of the respondents 1 to 3 /claimants, it is stated that the complaint filed by one Kumaresan was not taken into account by the police and in the FIR, the name of the deceased was wrongly mentioned as 'accused'. The first claimant filed a complaint before the Superintendent of Police, Kanyakumari District and the copy of the same was marked as Ex.P10. Th