Liability determination and contributory negligence in motor accident claims.

JUDGMENT

(Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree, made in M.C.O.P.No.101 of 2017, dated 30.01.2020, on the file of the Motor Accidents Claims Tribunal – Principal District Court, Dindigul.)

1. This Civil Miscellaneous Appeal has been filed against the award made in made in M.C.O.P.No.101 of 2017, dated 30.01.2020, on the file of the Motor Accidents Claims Tribunal – Principal District Court, Dindigul. The appellant herein is the second respondent, the first respondent herein is the claimant and the second respondent herein is the first respondent in the original M.C.O.P. Petition.

2. A brief substance of the petition, in M.C.O.P.No..101 of 2017, is as follows:-

On 23.07.2016, at about 11.30 am., when the petitioner was travelling as a pillion rider in a two wheeler bearing Registration No.TN-57-BA-3901, along the Oddanchatram to Dindigul main road, keeping the left side of the road a Hyndai Car bearing Registration No.TN-30-AE-6030 came in a rash and negligent manner from the opposite direction, overtaking a lorry, dashed against the motorcycle. The petitioner sustained fracture in the leg and injuries all over the body. The rider of the motorcycle by name Bhuvaneshkumar and another pillion rider, namely, Thiruvadi Kumar, sustained grievous injuries. They were admitted in Oddanchatram Government Hospital. After getting first aid, the petitioner was shifted to Kovai Medical Centre, Coimbatore and he took treatment as inpatient from 23.07.2016 till 29.07.2016, then, he took treatment as out patient. The petitioner claim a sum of Rs.10,00,000/- as compensation.

3. A brief substance of the counter and additional counter filed by the second respondent, in M.C.O.P.No.101 of 2017, is as follows:-

The age, profession, injuries, period of treatment, damages to properties are all denied. The accident did not happen due to the negligence of the car driver. The driver of the car drove the car in a slow and careful manner, observing the traffic Rules, keeping the left side of the road. It is wrong to state that the car was overtaking a lorry at the time of accident. There was no such lorry as stated in the petition. It was the rider of the motorcycle who came from the opposite direction in a rash and negligent manner, dashed against the Car. Three persons travelled in the motorcycle. The rider of the motorcycle was a minor having no driving licence. The driver, owner and insurance company of the motorcycle are necessary parties to the claim petition. The injuries are simple in nature. The compensation claimed is high and excessive.

4. One (1) witness was examined and 5 documents were marked on the side of the petitioner. No witness was examined and no document was marked on the side of the respondents. After considering both sides, the Tribunal has awarded a sum of Rs. 2,39,238/- as compensation.

5. Against the award, the appellant- Insurance Company has filed this Appeal on the following grounds:-

The Tribunal failed to consider that the claimant was travelling in a two wheeler as a pillion rider along with 2 others, which is against the law. The Tribunal failed to consider that the claimant was not examined. No eye witness was examined, only the father of the claimant was examined, who was not an eye witness. The Tribunal failed to consider that the person, who drove the motorcycle was a minor, who was not having valid driving licence. The compensation is excessive.

6. On the side of the appellant, it is stated that the claimant is a minor, he and 2 other minors travelled in the bike. The bike was rode by a minor and the same was hit a car, which was insured with the appellant. Negligence to be fixed on the rider of the motorcycle and not on the driver of the car. No eye witness was examined. The calimant was not examined.

7. On the side of the claimant, it is stated that it was the car driver, who was rash and negligen