Contributory negligence cannot be presumed solely based on the violation of law; a causal connection to the accident must be established.

JUDGMENT :

The claimants are before this Court seeking an enhancement of the compensation and to fix the entire liability on the 2^nd respondent made in order dated 02.11.2023 made in M.C.O.P.No.453 of 2019 on the file of the MACT Tribunal, Additional District Court, Hosur.

2. The appellants/claimants are the father, mother and sister of the deceased Anil Kumar. On 12.05.2019 at about 14.30 hours, when the deceased was riding the two-wheeler Bajaj Pulsar bearing Regn.No.TN-70- AA-8583 along with one pillion rider on Bagalur to Housr Road, at that time, the 1^st respondent/driver of the Eicher lorry bearing Regn.No.TN-59- BD-0120 belonging to the 2^nd respondent, which was insured with the 3^rd respondent coming from Bagalur towards Hosur in front of the two-wheeler and he drove the same in a rash and negligent manner and applied sudden brake, the two-wheeler in which the deceased was travelling hit on the right rear safety bumper of the Eicher lorry, due to which, the deceased sustained fatal injuries and succumbed to the same. Therefore, the claimants have filed a claim petition claiming a sum of Rs.1,00,00,000/- as compensation in M.C.O.P.No.453 of 2019 for the death of the deceased.

3. Before the Tribunal, the claimants examined 4 witnesses viz., P.W.1 to P.W.4 and marked 30 documents viz., Ex.P.1 to Ex.P.30. On the side of the respondents, no witnesses were examined, but marked 3 documents viz., Ex.R.1 to Ex.R.3. After adjudication, the Tribunal partly allowed the petition and awarded a sum of Rs.17,68,576/- as compensation to the claimants after deducting 50% towards contributory negligence. Aggrieved by the same, the claimants/appellants have preferred the present appeal.

4. Learned counsel appearing for the appellants submitted that the accident had happened solely due to the rash and negligent driving of the 1^st respondent, for which, the FIR came to be registered as against the 1^st respondent. Further, he submitted that the accident is of the year 2019 and at the time of accident, the deceased was only aged about 26 years and was working as Junior Executive, Shahi Exports Pvt. Ltd., Bangalore and was earning a sum of Rs.30,255/- per month, however, the Tribunal had fixed a sum of Rs.10,750/- as notional income of the deceased, which is very meagre and the same is contrary to the ratio laid down by the Hon'ble Apex court in catena of decisions and thereby, the same has to be reconsidered by this Court and the compensation awarded under other heads are also on the lower side and the same needs to be enhanced.

5. Further, he submitted that the Tribunal had fixed 50% contributory negligence on the part of the deceased solely on the ground that, three persons have travelled in the two wheeler in which the deceased was travelling at the time of accident, which is wholly unsustainable and the same is contrary to the decision of the Hon'ble Apex court in the case of Mohammed Siddique & Another Vs. National Insurance CO. Ltd., & others reported in 2020 (1) TN MAC 161 (SC) (C.A.No.79 of 2020 (SLP.(C).No.9618 of 2018 dated 08.01.2020)) and thereby, the same has to necessarily be set aside. Accordingly, he prayed for appropriate orders.

6. Per contra, the learned counsel appearing for the 3^rd respondent/Insurance Company contended that, at the time of accident, three persons have travelled in the motorcycle in which the deceased Anil Kumar was the rider, which is a clear violation of policy condition and the same is also strictly prohibited under the Motor Vehicles Act. Thereby, the Tribunal, after careful consideration of all the above said facts had rightly fixed 50% contributory negligence on the part of the deceased, and the same does not warrant any interference of this Court. Further, the compensation awarded by the Tribunal is already on the higher side and the same does not require any further enhancement. Accordingly, he prayed for dismissal of this appeal.

7. Heard the learned counsel appearing for the appellants and the learned