The court applied the principles of contributory negligence and liability under the Motor Vehicles Act, 1988 to determine compensation for the injuries sustained in the accident.

JUDGMENT :

(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, to set aside the order and decree dated 12.04.2011 passed in M.A.C.O.P.No.145 of 2009 on the file of the Motor Accident Claims Tribunal, Additional Sub Court, Tenkasi.)

1. This Civil Miscellaneous Appeal is directed as against the judgment and decree on certain counts passed by the Motor Accident Claims Tribunal, Additional Sub Court, Tenkasi, in M.A.C.O.P.No.145 of 2009 dated 12.04.2011 by the appellant/4th respondent/insurance company

2. For the sake of convenience, the parties are addressed herein as per the rank in M.A.C.O.P.No.145 of 2009.

3. The brief facts leading to the filing of the Civil Miscellaneous Appeal is as follows:- This is a case of injury. On 08.04.2009, at about 12.15 p.m, in Quilon to Tirumangalam National Highways Road, in the western side of Chockampatti O.P. Police Station which is 5 kms north east to Kadayanallur Police Station, the petitioner and his family went to Sastha Temple for the Panguni Uthiram Festival in an auto bearing registration No.TN-76-B-0046. The said auto was driven by the petitioner. While so a Maruti Omni car bearing registration No.TN-76-Y-8143 travelling from opposite east to west direction directly hit against the auto. The petitioner sustained severe injuries on his right leg and left hand and all over the body. Seeking to compensate these injuries, restricting the claim to Rs. 10,00,000/-, the claim petition has been filed by the petitioner.

4. The first respondent is the owner of the Maruti car, the second respondent is the insurance company with which the said Maruti car was insured and the third respondent is the owner of the auto driven by the petitioner. The fourth respondent is the insurance company with which the auto was insured. The second respondent had filed a counter refuting each and every allegations in the claim petition and an additional counter was also filed by the second respondent pleading that the auto was overloaded at the time of accident. A total number of eight persons travelled in the said auto. As the result of which, the driver lost control and had caused the accident. Hence, it is not necessary for the insurance company to indemnify the insurer. It was pleaded that instead of four persons nine persons travelled in the auto and thus resulted in the accident.

5. The learned Tribunal has framed three issues. Four witnesses P.W.1 to P.W.4 were examined on the side of the petitioners and 23 documents Ex.P1 to Ex.P23 were marked. Four witnesses R.W.1 to R.W. 4 were examined on the side of the respondents and six documents Ex.R1 to Ex.R6 were marked. The respondents 1, 3 and 4 were called absent and set exparte. On the basis of oral and documentary evidence and on the basis of arguments submitted by respective parties, the learned Tribunal proceeded to conclude that the accident had happened due to rash and negligent driving of both the vehicles and the contributory negligence was fixed on both the vehicles i.e. Auto and Maruti car. The learned Tribunal directed the respondents 2 and 4 to pay the compensation equally on 50%-50% basis. That apart the Doctor who had examined the petitioner had issued a certificate of partial permanent disability at 85% by observing the fact that the petitioner is a driver. However, considering the fact that his right hand is fully functional, the learned Tribunal has reduced 85% partial permanent disability as certified by the Doctor to 45% partial permanent disability and fixed a notional monthly income as Rs.3,000/- and considering the factum, the petitioner was 45 years at the time of accident, the relevant multiplier 15' was adopted and the head of partial permanent disability was calculated at Rs.2,16,000/- (Rs.3,000x12x15x45%). Further the Tribunal had passed the award under following heads:-