The court affirmed the principle of attributing liability based on evidence of rash and negligent driving, and upheld the application of the multiplier method for calculating loss of earning capacity.

JUDGMENT

(Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 25.11.2014 made in M.C.O.P.No.308 of 2010 on the file of the Motor Accident Claims Tribunal, Additional Sub Court, Tiruppur.)

V.M. Velumani, J.

1. This Civil Miscellaneous Appeal has been filed by the appellant/Insurance Company against the judgment and decree dated 25.11.2014 made in M.C.O.P.No.308 of 2010 on the file of the Motor Accident Claims Tribunal, Additional Sub Court, Tiruppur.

2. The appellant/Insurance Company is the 2nd respondent in M.C.O.P.No.308 of 2010 on the file of the Motor Accident Claims Tribunal, Additional Sub Court, Tiruppur. The 1st respondent filed the said claim petition claiming a sum of Rs.24,00,000/- as compensation for the injuries sustained by him in the accident that took place on 26.12.2009.

3. According to the 1st respondent, on the date of accident i.e., on 26.12.2009 at about 8.30 P.M., while he was riding in his motorcycle bearing Registration No.TN-39-AE-3974 on Somanur to Karanampettai Road, near Ram Nagar, Karukkampalayam, from North to South direction, the driver of the share auto rickshaw bearing Registration No.TN 39 AK 6285 belonging to the 2nd respondent, who was coming in the same direction, drove the same in a rash and negligent manner, dashed on the back side of the motorcycle driven by the 1st respondent and caused the accident. In the accident, the 1st respondent sustained grievous injuries all over the body. Therefore, the 1st respondent has filed the above claim petition claiming compensation against the 2nd respondent, owner of the share auto rickshaw and appellant/Insurance Company, insurer of the said vehicle.

4. The 2nd respondent, owner of the share auto rickshaw remained exparte before the Tribunal.

5. The appellant/Insurance Company filed counter statement denying the averments made in the claim petition and stated that the accident has occurred only due to negligence of the 1st respondent, who rode the motorcycle in a rash and negligent manner. The owner and insurer of the motorcycle driven by the 1st respondent were not made as parties to the proceedings and hence, the claim petition is bad for non-joinder of necessary parties. Therefore, the appellant is not liable to pay any compensation to the 1st respondent. In any event, the amount claimed by the 1st respondent is excessive and prayed for dismissal of the claim petition.

6. Before the Tribunal, the 1st respondent examined himself as P.W.1 and Dr.Dhanasekar, was examined as P.W.2 and 11 documents were marked as Exs.P1 to P11. The appellant/Insurance Company did not let in any oral and documentary evidence.

7. The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent driving by the driver of the share auto rickshaw belonging to the 2nd respondent and directed the appellant/Insurance Company being the insurer of the said share auto rickshaw to pay a sum of Rs.21,16,000/- as compensation to the 1st respondent.

8. Against the said award dated 25.11.2014 made in M.C.O.P.No.308 of 2010, the appellant/Insurance Company has come out with the present appeal.

9. The learned counsel appearing for the appellant/Insurance Company contended that no independent witness other than the 1st respondent was examined to prove the manner of accident. Mere filing of F.I.R. against the driver of the share auto rickshaw is not a substantive piece of evidence to come to a conclusion that the accident has occurred only due to rash and negligent driving by the driver of the share auto rickshaw. The Tribunal ought to have fixed contributory negligence on the part of the 1st respondent. The learned counsel further contended that 1st respondent claimed that he was the Proprietor of SMR Tex and was earning a sum of Rs.2,90,536/- per annum. The 1st respondent has not filed any document to prove that the said business has been closed. Even aft