The main legal point established in the judgment is the determination of contributory negligence and the calculation of enhanced compensation under the Motor Vehicles Act.

JUDGMENT

(Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 30.03.2031 passed in MCOP No.602 of 2018 on the file of Motor Accident Claims Tribunal, Special District Court at Erode District.)

1. This Civil Miscellaneous Appeal has been filed by the appellants challenging the award dated 30.03.2031 passed in MCOP No.602 of 2018 on the file of Motor Accident Claims Tribunal, Special District Court at Erode District.

2. The appellants filed MCOP No.602 of 2018 on the file of Motor Accident Claims Tribunal, Special District Court at Erode District claiming a sum of Rs.30,00,000/- as compensation for the death of one Murugesan who died in the accident that took place on 01.02.2018.

3. According to the appellants, on 01.02.2018, while the deceased Murugesan was riding his TVS XL bearing Regn.No.TN39 BW 0816 alongwith his friend as pillion rider, on the Avinashi to Karumathampatty Road, near Thekkalur Santhai from East to West direction, the 1st respondent rode his bike bearing Regn.No.TN37 BY 4340 in a rash and negligent manner in the same direction and hit against the deceased motorcycle. Due to the sudden hit, both the rider as well as the pillion rider of the motorcycle were thrown away and sustained multiple grievous injuries all over their bodies. Inspite of treatment, the said Murugesan died on 02.02.2018 and hence the appellants filed the claim petition claiming compensation against the respondents.

4. The 1st respondent remained exparte before the Tribunal.

5. The 2nd respondent filed counter statement denying the averments made in the claim petition including the manner of accident. The deceased alone rode the motorcycle under the influence of alcohol in a rash and negligent manner and caused the accident. The deceased did not wear helmet at the time of accident and thereby violated the policy conditions. The appellant has not impleaded the owner and insurer of the TVS XL and hence the claim petition is bad for non-joinder of necessary parties. The 2nd respondent denied the age, avocation and income of the deceased. The total compensation claimed by the appellants is excessive and prayed for dismissal of the claim petition.

6. Before the Tribunal, the 1st appellant examined herself as PW1 and one Gurusamy, eye-witness to the accident was examined as PW2. Nine documents were marked as Exs.P.1 to Exs.P.9. On the side of the respondents, Dr.V.Balaji was examined as RW1 and Accident Register was marked as Ex.R1.

7. The Tribunal after considering the evidence and documents filed on the side of the appellants as well as respondents, held that the accident occurred due to the rash and negligent riding by the rider of the bike bearing Regn.No.TN37 BY 4340, fixed 75% negligence on the part of the rider of the bike and 25% on the deceased, rider of the TVS XL bearing Regn.No.TN39 BW 0816 for not possessing valid licence and not wearing helmet at the time of accident. The Tribunal directed the 2nd respondent / Insurance company to pay 75% of the award amount, i.e. Rs. 15,90,000/- as compensation to the appellants.

8. Challenging the award of the Tribunal fixing 25% negligence on the part of deceased, the appellants have filed the instant appeal.

9. The learned counsel appearing for the appellants submitted that the Tribunal erred in fixing the negligence on the deceased at 15% for not wearing helmet and 10% for not possessing valid driving licence at the time of accident in the absence of any evidence let in by the second respondent/insurance company to prove the same. The learned counsel further submitted that the manner of accident would go to show that no contributory negligence can be fixed for not possessing valid driving licence at the time of accident. The Tribunal having found that the accident occurred only due to the negligence of the offending vehi