The main legal point established in the judgment is the significance of establishing negligence on the part of the offending vehicle and the impact of contributory negligence and influence of alcohol on the claimant's insurance claim under the Motor Vehicles Act.

JUDGMENT

(Prayer:- Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, to set aside the award and judgement of the Tribunal dated 17.10.2016 regarding the liability of appellant/2nd respondent in MCOP.No.1089 of 2013 on the file of the Motor Accident Claims Tribunal (Special Sub-Court for MCOP Cases), Tirunelveli.)

1. The above appeal has been filed by the Insurance Company challenging the findings regarding negligence and liability in the award passed in MCOP.No.1089 of 2013 on the file of Motor Accident Claims Tribunal, Tirunelveli.

2. The claim petition has been filed by the injured claimant under Section 163(A) of the Motor Vehicles Act.

3. As per the claim petition, the claimant was travelling in a motor bike on 09.10.2013 at about 21.45 hours which was insured with the third respondent. While he was travelling slowly, a Maruthi Omni Van belonging to the first respondent and insured with the second respondent was driven in a rash and negligent and came to a grinding halt without proper signal. It resulted in an accident in which the claimant sustained fracture of skull, fracture of left forearm, fracture of left femur, fracture of left tibia, apart from grievous injuries in both hands, legs and all parts of the body. According to the claimant, he was treated as an inpatient for a period of 28 days and referred to Tirunelveli Medical College Hospital. A criminal case was registered as against the claimant in Crime No.685 of 2013 on the file of Sathyamangalam Police Station and the said case is pending.

4. According to the claimant, he was earning a sum of Rs.3,300/- per month as fitter in Thread Mill. He is unable to use both hands and legs and therefore, he is 100% disabled and he has also underwent a major surgery implanting steel plate with interlocking mailings and the left leg has been shortened to an extent of 2 inch. Therefore, the claimant sought for a sum of Rs.8,40,800/-.

5. The owner of the alleged offending vehicle had remained exparte and the Insurer Company of the said offending vehicle had filed a counter contending that the injured claimant was under influence of alcohol and due to his rash and negligent driving, he had dashed against the Maruthi Omni Van on its rear side. Moreover, at the relevant point of time, three persons were travelling in the motor bike. On the basis of the complaint lodged by the pillion rider of the two wheeler, Sathyamangalam Police Station had registered a case against the petitioner. Since it is solely due to the carelessness and negligence of the claimant, the claimant cannot seek any compensation from the Insurance Company of the Maruthi Van. The Insurance Company has also disputed the quantum of compensation that was prayed for in the claim petition.

6. The Tribunal after considering the oral and documentary evidence, arrived at a finding that the first respondent who is the owner of the Maruthi Van alone is responsible for the said accident. Though the claim petition was filed under Section 163-A of the Motor Vehicles Act, considered the said application under Section 166 of the Motor Vehicles Act and proceeded to pass an award for a sum of Rs.4,65,000/- The said award is under challenge in the present appeal.

7. According to the learned counsel for the appellant/Insurance Company, at the time of driving the vehicle, the injured claimant was under influence of alcohol and three persons were riding on the motor bike in violation of the statutory provisions. He had further contended that the motor bike had hit on the rear side of the Maruthi Omni Van. Therefore, it is for the claimant to establish that there was a negligence on the part of the driver of the Maruthi Omni Van.

8. The learned counsel for the appellant had relied upon Exhibit P3 - discharge summary issued by Kuppusamy Hospital which discloses that the accident has happened due to drunken driving. The learned counsel had further relied upon Exhibit A7-Accident Register wherein the duty Doctor ha