JUDGMENT :

These Civil Miscellaneous Appeals arise out of the common award passed in MCOP Nos.1083 and 1084 of 2006, dated 24/07/2009 by the Motor Accident Claims Tribunal/Additional District Court, (FTC No.2), Tirunelveli.

2.The brief case is as follows:-

(i) On 20/01/2006 at about 10.30 pm, one Jothi was riding his Bajaj M80 TN-76-Z-0843 along with his friend Pauldurai as pillion rider on the Surandai to Senthamaram road by south-north direction. When they were nearing Natarajan Kalyanamandabam Pillaiyar Kovil, a load auto rickshaw not bearing registration number mark, which was driven by the 1st respondent from the opposite direction in a rash and negligent manner and dashed against the motor cycle. In that process, both the rider and the pillion rider of the motor cycle fell down and sustained injuries. They were immediately taken to the Tirunelveli Medical College Hospital, Palayamkottai, for treatment and thereafter, admitted in the private hospital for further treatment.

(ii) Over the occurrence, a case in Crime No.21 of 2006 was registered by the Surandai Police Station, against the 1^st respondent for the offences under Sections 279, 337 and 338IPC.

(iii) Claiming compensation for the injuries sustained in the accident, the both the claimants filed claim petitions separately as mentioned in the claim petitions.

3.The 1^st respondent and second respondent filed their counter statement denying the entire allegations made in the claim petitions and contended that the accident occurred solely due to the negligence on the part of the rider of the two wheeler. At the time of accident, three persons were travelling on the motor cycle; and the rider did not possess a valid driving licence. Furthermore the two wheeler was also not insured with any of the Insurance Company.

4. It is further contended that the 1^st respondent, the owner of the load auto, drove the vehicle without registration and without obtaining fitness certificate from the competent authority at the time of the accident, thereby, violating the policy conditions as contemplated under the Motor Vehicles Act.

5.Before the Tribunal, on the side of the claimants, 3 witnesses were examined as PW1 to PW3 and 15 documents were marked as Exs.P1 to P15. On the side of the 2^nd respondent Insurance Company, 3 witnesses were examined as RW1 to RW3 and 3 documents were marked as Exs.R1 to R3.

6. After considering the material evidence and records, the Tribunal has awarded compensation of Rs.3,95,000/- in respect of MCOP No.1083 of 2006 and Rs.3,24,000/- in respect of MCOP No.1064 together with interest at the rate of 7.5% per annum and directed the respondents 1 and 2 to pay the said award amount jointly and severally.

7. Aggrieved over the common order of the Tribunal, these Civil Miscellaneous Appeals have been preferred by the Insurance Company, disputing their liability and negligence to pay the compensation.

8.This court considered the rival submission of the learned counsel appearing on either side and perused the materials available on record.

9. Now, this Court has to decide the following points for considerations:

(1) Whether the order of the Tribunal is proper or liable to be set aside ?

10. Point No.1 As per the averments contained in the petition, the auto which was insured with the appellant hit the two wheeler and three persons were injured. However, only two persons alone come forward and filed petitions seeking compensation while the third person has not come forward with any claim. This fact is also supported by FIR which is marked as Ex.P1, wherein it is clearly recorded that three persons were travelled with beedi bags. The petitioners' has also contributed to the accident and therefore, the Tribunal ought to have fixed 50% contributory negligence on the part of the petitioners. However, the Tribunal failed to appreciate the above facts and rejected the appellant's contention by merely stating that the appellant had not proved that the accident occurred due to the neglig