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

JUDGMENT

(Prayer:- Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree in MCOP.No. 2005 of 2005 on the file of the Additional District Judge/Fast Tract Court No.1, Madurai dated 24.08.2010.)

1.The present appeal has been filed by the claimants challenging the award passed by the Additional District Judge/Fast Tract No.1, Madurai in MCOP.No.2005 of 2005 wherein an award was passed for a sum of Rs.50,000/- under no fault liability.

2. According to the claimants, the deceased aged about 27 years was working as a Junior Engineer in Hindu Newspaper, Trivandrum and drawing a salary of Rs10,000/- per month. While he was riding his Hero Honda Splendor Motor Bike from north to south direction in West Veli Street, a Bajaj CT 100 driven by the first respondent came in the east-west direction from Town Hall Road and dashed against the Splendor Bike in which the deceased sustained grievous injuries and he died on his way to hospital. According to the claimants, the driver of both the two wheelers had driven in a rash and negligent manner. The claimants had prayed for a sum of Rs.8,00,000/- towards compensation.

3. The second respondent who is the insurer of Bajaj CT 100 had filed a counter contending that the claimants have not specifically mentioned about the manner of accident. He had have further contended that an F.I.R has been registered only as against the deceased person on the ground that he was solely responsible for the alleged accident. The deceased being a tortfeasor, his legal heirs are not entitled to maintain a claim petition.

4. The Insurance Company had further contended that the Bajaj CT 100 though it was insured with the second respondent, the driver of the said vehicle did not have a valid driving licence at the relevant point of time. The Insurance Company had further contended that the Splendor Bike was neither insured nor the driver was having any driving licence at the relevant point of time. They have also questioned the quantum of compensation. Hence, he prayed for exonerating the Insurance Company.

5. The Tribunal had found that the oral evidence let in by the claimants is not satisfactory to the effect that the negligence was on the part of the rider of the Bajaj CT 100. The Tribunal was convinced that only due to the rash and negligent driving on the part of the deceased, the accident has taken place. The Tribunal had relied upon the F.I.R which is marked as Exhibit P1 and deposition of RW4 who was a pillion rider of Bajaj CT 100. The Tribunal ultimately found that the deceased was the tortfeasor and his legal heirs are not entitled to receive any compensation except a sum of Rs.50,000/- under no fault liability. This award is under challenge in the present appeal by the claimants.

6. According to the learned counsel appearing for the appellants /claimants even as per the F.I.R, the deceased was driving his two wheeler from north to south direction in West Veli Street and the other vehicle came from east-west direction from the Town Hall Road and entered into the main road. Therefore, the negligence cannot be solely fixed upon the deceased person and the same ought to have been shared between the driver of the Bajaj CT 100 and the driver of the Hero Hondo Splendor namely the deceased person. When there is a negligence on the part of the driver of the Bajaj CT 100, the Tribunal ought to have considered the claim of the petitioners for demand of compensation under Section 166 of the Motor Vehicles Act. The award of the Tribunal under Section 140 of the Act mulcting the total negligence on the part of the deceased is not sustainable in the facts of the case. Hence, he prayed for allowing the appeal.

7. Per contra, the learned counsel appearing for the Insurance Company had contended that the deceased was solely responsible for the accident and the F.I.R was registered as against him. The said F.I.R was closed on the ground that the accused had passed away. The c