Contributory negligence cannot be automatically fixed on individuals traveling in a motorcycle, and evidence is required to prove the extent of disability and loss of income in claims for compensation.

JUDGMENT

(Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 25.01.2019, made in M.C.O.P. No.136 of 2014, on the file of the Sub Court, (Motor Accident Claims Tribunal), Arakkonam.)

V.M. Velumani, J.

1. This Civil Miscellaneous Appeal has been filed by the appellant- Insurance Company against the judgment and decree dated 25.01.2019, made in M.C.O.P. No.136 of 2014, on the file of the Sub Court, (Motor Accident Claims Tribunal), Arakkonam.

2. The appellant is the 2nd respondent in M.C.O.P. No.136 of 2014, on the file of the Sub Court, (Motor Accident Claims Tribunal), Arakkonam. The 1st respondent/claimant filed the said claim petition, claiming a sum of Rs.30,00,000/- as compensation for the injuries sustained by him in the accident that took place on 04.07.2013.

3. According to the 1st respondent, on the date of accident, at about 10.00 p.m, when he was riding as a pillion rider in a Motorcycle, the driver of the Eicher Mini Lorry bearing Registration No.TN-73-A-3789 owned by the 2nd respondent, drove the same in a rash and negligent manner and hit behind the Motorcycle and caused the accident. In the accident, the 1st respondent sustained grievous injuries on his head, leg and all over the body. The accident occurred only due to rash and negligent driving by the driver of the Eicher Mini Lorry owned by the 2nd respondent and hence, the 1st respondent filed the said claim petition claiming compensation against the 2nd respondent and appellant-Insurance Company as owner and insurer of the Lorry respectively.

4. The 2nd respondent, owner of the Eicher Mini Lorry, remained exparte before the Tribunal.

5. The appellant, insurer of the Lorry, filed counter statement and denied all the averments made by the 1st respondent in the claim petition. According to the appellant-Insurance Company, on the date of accident, at about 10.00 P.M., when the 1st respondent and one Karthik were travelling as pillion riders in the Hero Honda Splendor Motorcycle bearing Registration No.TN-73-W-2001, driven by one Vinothkumar, from Sholinghur towards Banavaram without observing the traffic rules and regulations and without noticing the Eicher Mini Lorry bearing Registration No.TN-73-A-3789 which was coming in the same road in the same direction behind the Motorcycle in a slow and cautious manner, the rider of the Motorcycle suddenly tresspassed into the path of the Eicher Mini Lorry and invited the accident. The accident occurred only due to rash and negligent riding by rider of the Motorcycle in which the 1st respondent travelled. At the time of accident, 3 persons traveled in the Motorcycle, whereas the seating capacity is only 2. Hence, the 1st respondent also contributed negligence to the accident. The FIR has been lodged after 4 days of the accident. The 2nd respondent has violated the policy conditions by permitting the driver to drive the Eicher Mini Lorry without any valid driving license, Permit and Fitness certificate. Hence, the appellant as insurer of the said Lorry is not liable to indemnify the 2nd respondent. In any event, the 1st respondent has to prove his age, avocation and income, treatment taken, injuries sustained and medical expenses incurred to claim compensation and prayed for dismissal of the claim petition.

6. Before the Tribunal, the 1st respondent's wife viz., Jayasudha was examined as P.W.1, Vinothkumar, one of the pillion rider, was examined as P.W.2, one Sivan was examined as P.W.3 and one Premkumar was examined as P.W.4 and 12 documents were marked as Exs.P1 to P12. The appellant- Insurance Company examined their Assistant Manager as R.W.1 and marked 2 documents as Exs.R1 & R2.

7. The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred only due to rash and negligent driving by driver of the Eicher Mini Lorry and fixed 10% contributory negligence on the part of the 1st respondent and 90% negligence o