Contributory negligence and absence of appeal from the Insurance Company precluded the claimants from seeking an enhancement of compensation.

JUDGMENT

(Prayer: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, against the Judgment and Decree dated 28.02.2011 made in M.C.O.P.No.832 of 2006 on the file of Motor Vehicle Claims Tribunal / Additional District Judge, Krishnagiri.)

1. The claimants who are the legal representatives of the deceased Chakkaravarthy filed the above appeal seeking enhancement of the award passed by the Motor Accident Claims Tribunal / Additional District Judge, Krishnagiri District in M.C.O.P.No.832 of 2006.

2. The brief facts are as follows:

The accident had taken place on 14.02.2006 when the deceased Chakkaravarthy was driving an Omni van bearing Registration No.T.N.38.F.3729. He was driving the same in a rash and negligent manner as a result of which he had lost control of the vehicle and the Omni van had overturned. The said Chakkaravarthy had sustained grievous injuries and has ultimately succumbed to the injuries.

3. The learned counsel for the appellants would contend that the accident had occurred because a pedestrian has suddenly darted across the road. If he had not suddenly crossed the road, the accident would not have occurred. The Tribunal held that the deceased had also contributed for the accident and therefore, fixed a contributory negligence at 50% and arrived at a compensation of Rs.4,48,000/- and considering the negligence had directed the Respondents to pay a sum of Rs.2,24,000/- to the appellants/petitioners.

4. The Insurance company had taken a plea that they were not liable to pay compensation to the appellants / claimants. The deceased himself was the tort-feasor and further the claimants had already filed a claim petition before the Deputy Commissioner of Labour, Salem in W.C.No.174 of 2006. Challenging the quantum, the appellants are before this Court.

5. The counsel appearing on behalf of the appellants would state that the deceased was earning a sum of Rs.1,500/- per week and was employed as a driver with M/s.Amman Nattis Machines, Uppilipalayam.

6. Per contra, Mrs.I.Malar, the learned counsel appearing on behalf of the Insurance Company would submit that the Tribunal below had not taken into account the fact that the Insurance Company has taken a plea that they are not liable to compensate the claimants since the deceased is the tortfeasor himself. Further, there is no proof to show that the deceased was an employee in the said 1st Respondent's company. That apart, simultaneous proceedings have also been taken, one before the Deputy Commissioner of Labour under the workmen's compensation and the other before the Motor Accidents Claims Tribunal. She would submit that despite this, compensation has been granted and the very order granting compensation is erroneous and the Tribunal ought to have dismissed the claim petition.

7. Heard the learned counsel for the appellants and the counsel for the 2nd respondent/Insurance Company.

8. Though, the learned counsel for the Insurance Company would submit that the deceased is himself the tort feasor and therefore not entitled to compensation, however, they have not filed any appeal challenging the said award. Therefore, it would not lie in the mouth of the respondents to take such a plea at this juncture. However, this Court cannot also close its eyes to the fact that the tort-feasor is seeking a premium for his fault. Therefore, the appellants are not entitled to claim an enhancement.

9. In the result, the Civil Miscellaneous Appeal is dismissed and the order passed by the Tribunal below is confirmed and the Judgment and Decree dated 28.02.2011 made in M.C.O.P.No.832 of 2006 on the file of Motor Accident Claims Tribunal / Additional District Judge, Krishnagiri is confirmed and no enhancement can be granted to the appellants/claimants. No costs.