Deduction in compensation for non-wearing of a helmet is justified as contributory negligence, with income determined based on industry standards despite lack of documentation.

JUDGMENT :

K.K.RAMAKRISHNAN, J.

The Civil Miscellaneous Appeal has been preferred by the Insurance Company against the award dated 19.10.2023 passed in M.C.O.P.No.335 of 2020 by the Principal District Judge / Motor Accident Claims Tribunal, Dindigul.

2. The respondents 1 to 3 / claimants have filed a claim petition in M.C.O.P.No.335 of 2020, claiming compensation for the death of A.Palanichamy, in an accident that took place on 30.05.2020. The Tribunal has awarded a sum of Rs.5,67,488/- (Rupees Five Lakhs Sixty Seven Thousand Four Hundred and Eighty Eight only) with interest at 7.5% per annum as compensation. Against which, the appellant / insurer has preferred this appeal.

3. A brief substance of the claim petition is as follows:

On 30.05.2020 at about 02.00 p.m., when the deceased Palanichamy was proceeding in his two wheeler bearing Registration No.TN-58-R-1058 from West to East direction on the left side of the road in Kallimanthaiyam road, near Porulur petrol bunk, a Ashok Leyland (Dost) four wheeler bearing Registration No.TN-57-BF-0335, which came behind the two wheeler in a rash and negligent manner, dashed against the two wheeler and as a result, the two wheeler rider Palanichamy sustained grievous injuries. He was admitted in Sri Kumaran Hospital, Oddanchatram and despite treatment, he succumbed to the injuries on 27.07.2020. A case came to be registered in Crime No.426 of 2020 for the offences under Sections 279 and 337 IPC against the driver of the four wheeler. The legal heirs of the deceased Palanichamy have filed the claim petition in M.C.O.P.No.335 of 2020 claiming compensation of Rs.10,00,000/- on the ground that the accident occurred only due to the rash and negligent driving of the four wheeler driver.

4. The fourth respondent / first respondent, owner of the vehicle, remained ex-parte before the Tribunal and the claim petition was opposed by the appellant / insurer.

5. A brief substance of the counter filed by the insurer is as follows:

The manner of accident as narrated in the claim petition is denied. The age, occupation and income of the deceased are all denied. The injury caused due to the accident was not the reason for the cause of death. The deceased drove the two wheeler without driving license and without wearing helmet, as such, there was a breach of policy conditions. The accident occurred only due to the rash and negligent driving of the deceased. The claim of compensation is excessive and exorbitant.

6. On the side of the respondents 1 to 3 / claimants, 2 witnesses were examined as P.W.1 and P.W.2 and 8 documents were marked as Ex.P.1 to Ex.P.8. On the side of the appellant / insurer, 1 witness was examined as R.W.1 and 3 documents were marked as Ex.R.1 to Ex.R.3. After trial, the Tribunal has awarded a sum of Rs.5,67,488/- (Rupees Five Lakhs Sixty Seven Thousand Four Hundred and Eighty Eight only) with interest at 7.5% per annum as compensation to be paid by the appellant / insurer. Against which, the appellant / insurer has preferred this Civil Miscellaneous Appeal.

7. The learned counsel appearing for the appellant / insurer would submit that the deceased was not wearing helmet at the time of accident and as such, the liability cannot be mulcted only against the appellant / insurer. He would further submit that the deceased was aged about 60 years at the time of accident but the Tribunal, without any evidence, fixed the income of the deceased at Rs.6,000/- per month, which is on the higher side and the Tribunal also erred in adding 10% of the income towards future prospects and therefore, the same should be reduced.

8. The learned counsel appearing for the respondents 1 to 3/claimants would submit that the deceased had wo