The apportionment of contributory negligence and calculation of compensation should be based on evidence and considerations of vicarious and contractual liability.

JUDGMENT

(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, to set aside the fair and decreetal order dated 29.04.2019 made in M.C.O.P.No.55 of 2017 on the file of the Motor Accident Claims Tribunal, (Special District Judge), Madurai.)

1. This Civil Miscellaneous Appeal has been filed by the appellant/insurance company, challenging the compensation awarded on certain counts by the learned Motor Accident Claims Tribunal, Special District Judge, at Madurai in M.C.O.P.No.55 of 2017 dated 29.04.2019.

2. For the sake of convenience, the parties are addressed herein as per the rank in M.C.O.P.No.55 of 2017.

3. The factual matrix of the present case, briefly stated, are as under:- The deceased Selvaraj along with his brother in law and the first respondent who is the owner of the vehicle travelled in a Tata Ace goods vehicle bearing registration No.TN-58-U-2341 by sitting in the front side from Madurai to Nagercoil on 22.08.2009 in which, he loaded his household articles for shifting from Madurai. At about 2.15 a.m., while the said Tata Ace proceeded from south to west, near Pullalakottai Vilakku road, Byepass Road, Virudhunagar, a lorry bearing registration No.TN-33-X-6977 stood in the middle of the left side road. The driver of the Tata ace in a uncontrollable speed without seeing the lorry parked in the middle of the road, hit against the said lorry and as the result of which, the deceased Selvaraj was crushed in between two vehicles and sustained crush injury to major neck vessels and hemorrhage shock in all vessel organs, and multiple grievous injuries and resulted in his death on the spot. The other persons who travelled along with him also sustained grievous injuries. The deceased person was 22 years old at the time of death. The petitioners 1 and 2 are the parents of the deceased and the third petitioner is the unmarried sister of the deceased and the fifth respondent is his wife. Seeking compensation for the death of the deceased, the petitioners filed the claim petition in M.C.O.P.No.55 of 2017.

4. The second respondent is the insurance company with which the Tata Ace goods vehicle was insured and the third respondent is the owner of the lorry bearing registration No.TN-33-X-6977 and the fourth respondent is the insurance company with which the said lorry was insured. Counters have been filed by the second and fourth respondents before the learned Tribunal refuting each and every allegations set forth with the claim petition.

5. The learned Tribunal had framed four issues and three witnesses were examined P.W.1 to P.W.3 and Ex.P1 to Ex.P16 were marked on the side of the petitioners and neither witnesses nor document was marked on the side of the respondents. The respondents 1, 3 and 5 were called absent and were set exparte. The learned Tribunal on perusing the oral and documentary evidence and on the basis of the arguments put forth by the parties, concluded that the accident had happened not only due to the negligence of the driver of the Tata ace but also due to the contributory negligence of the lorry driver, who had parked the vehicle in the middle of the left side of the road and thereby, fixing contributory negligence to the tune of 70% on the driver of the Tata Ace and 30% on the driver of the lorry. Tata Ace was insured with the second respondent insurance company and lorry was insured with the fourth respondent insurance company.

6. The learned Tribunal further concluded that in view of the vicarious liability on the part of the respondents 1 and 3 and contractual liability on the part of the respondents 2 and 4, they are entitled to pay compensation as awarded by the Tribunal to the petitioner. The learned Tribunal on the basis of evidence deposed by Syed Mohammed, Part Time Manager, Chennai as P.W.3 through whom Ex.P11 appointment order and Ex.P12 salary receipt of the dece