Contributory negligence must be proven and cannot be inferred; the deceased was not negligent, leading to a modified compensation of Rs.23,61,250.

JUDGMENT :

R.SAKTHIVEL, J.

Feeling aggrieved by the Award dated November 23, 2018 passed in MCOP No.423 of 2017 by the ‘Motor Accident Claims Tribunal/III Additional District Judge, Vellore at Tirupattur’ [‘Tribunal’ for short], the petitioners therein have preferred this Civil Miscellaneous Appeal praying for enhancement of the compensation awarded by the Tribunal.

2. For the sake of convenience, the parties will hereinafter be referred to as per their rank in the Motor Accident Claims Original Petition.

Petitioners' case

3. The first petitioner is the wife, the second and third petitioners are the daughters, and the fourth and fifth petitioners are the parents of the deceased - Kumaresan. At the time of the accident, the deceased - Kumaresan was 42 years old, employed as a Tamil Nadu Grade-I Police Constable, and earning a sum of Rs.32,000/- as monthly income.

3.1. On June 25, 2017, at about 06.20 a.m., in front of Rajeswari Marriage Hall at Jolarpet Junction, on the Tirupattur- Vaniyambadi Main Road, an auto bearing Registration No.TN-23- BX-5853, owned by the 1^st respondent, was being driven in a rash and negligent manner by its driver (who is first respondent’s son) towards Vaniyambadi from Tirupattur. It collided with another auto bearing Registration No.TN83-W-6696, which was driven by the deceased - Kumaresan, in the opposite direction, on the extreme left side of the road. Due to the impact, the deceased - Kumaresan sustained multiple grievous injuries on his head and all over his body. Immediately, the deceased was taken to the Government Hospital in Tirupattur and admitted as an inpatient for treatment. Later, he succumbed to the injuries. The first respondent is the owner and the second respondent is the insurer of the first respondent’s auto bearing Registration No.TN-23-BX-5853. Therefore, the petitioners filed a claim petition before the Tribunal, seeking compensation of Rs.50,00,000/- (Rupees Fifty Lakhs only) from the respondents.

First Respondent's case

4. The first respondent remained absent before the Tribunal and accordingly was set ex-parte by the Tribunal.

Second Respondent's case

5. The second respondent / insurance company filed a counter, denying the allegations made in the claim petition. It is averred that the deceased - Kumaresan was not a competent auto-rickshaw driver and did not possess a valid driving license at the time of the accident. The petitioners are put to strict proof of the alleged manner of the accident, the dependency of the deceased as well as transportation and funeral expenses. The age, occupation, and income of the deceased are denied. The compensation claimed by the petitioners is exorbitant, arbitrary, and excessive. Hence, the second respondent prayed for the dismissal of the petition.

Tribunal

6. During enquiry, on the side of the petitioners, the first petitioner was examined as P.W.1, one Mr.Arulnambi, ocular witness, was examined as P.W.2 and Ex-P.1 to Ex-P.14 were marked. On the side of the second respondent, Mr.Baskaran, Assistant attached to the RTO Office, Vaniyambadi was examined as R.W.1, and Ex-R.1, a letter from the MV Inspector to the Tribunal, was marked.

7. The Tribunal, after considering the evidence available on record, found that both vehicles collided with each other from opposite directions. Hence, both were equally held liable for the accident and therefore, 50% contributory negligence was mulcted on the deceased. The Tribunal, accordingly, held that the second respondent is liable to pay compensation to the petitioners, as tabulated below:-

8. Feeling aggrieved by the quantum of compensation awarded by the Tribunal, the petitioners have preferred this Civil Mi