JUDGMENT :

R.POORNIMA, J. 

This Civil Miscellaneous Appeal is preferred against the order passed by the Motor Accident Claims Tribunal/Additional District Judge, Theni, in MCOP No.176 of 2017, dated 03/07/2019.

2.The brief case of the claimant are as follows:-

On 14.07.2017 at about 04.50 hours, the deceased (Saleem) was riding his two wheeler No.TN-60-V-5808 from west to east direction on Bodinaickanur to Thenimain road. While he was proceeding near AIADMK Party Office, the driver of the Car No.TN-09-AU-5142 belonged to the 1st respondent drove the same in a rash and negligent manner and dashed against the two wheeler. In the said accident,the deceased sustained grievous injuries and he was immediately, taken to the Government Hospital, Theni. Thereafter, he was referred to Government Rajaji Hospital, Madurai, for further treatment, however, he succumbed to the injuries on 14.07.2017. Over the occurrence, a case in Crime No.496 of 2017 was registered by the Palanichettiyatti Police Station for the offences under Sections 279 and 304(A) IPC against the driver of the offending vehicle.

3.At the time of accident, the deceased was aged about 32 years and was working as Electrical Engineer in Arun Enterprises, Theni and was earning Rs.30,000/- per month. Claiming compensation of Rs. 70,00,000/- for the death of the deceased Saleem, the legal heirs of the deceased filed a claim petition before the Tribunal.

4.The 1st respondent remained ex-parte before the Tribunal. The appellant Insurance Company filed their counter disputing the manner of the accident as projected by the claimants,contended that the accident was occurred due to the rash and negligent act of the deceased. The appellant further denied the occupation and income of the deceased and its liability to pay the compensation. It was further contended that the claim is excessive and exorbitant.

5.Before the Tribunal, on the side of the claimants, 4 witnesses were examined as P.W.1 to P.W.4 and 23 documents were marked as Exs.P1 to P23. On the side of the respondents, 2 witnesses were examined as R.W.1 and R.W.2 and 4 documents were marked as Exs.R1 to R4.

6.After considering the material evidence and records, the Tribunal has awarded compensation of Rs.35,49,000/- together with interest at the rate of 7.5% per annum and directed the 2nd respondent Insurance Company to pay the said award amount.

7.Aggrieved over the order of the Tribunal, this Civil Miscellaneous Appeal has been preferred by the Appellant Insurance Company, disputing the manner of accident and their liability to pay the compensation.

8. It is further submitted that the deceased was solely responsible for the accident, as the accident took place on the left side of the road, as evident from the rough sketch (Ex.R2) and observation mahazar (Ex.R1). The insurance company, therefore, contended that the material on record clearly establishes that the deceased contributed to the accident and that the same is a case of head on collision. The Tribunal had erroneously fixed the entire negligence upon the insured driver which is proper as the deceased is also liable for contributory negligence.

9.This Court considered the rival submission of the learned counsels appearing on either side and perused the materials available on record.

10. The issue that now arises for consideration before this Court is whether the first respondent driver alone was responsible for the accident ? or whether the deceased, who drove the vehicle in a rash and diligent manner also contributed for the accident?

11. It is not in dispute that the FIR was registered against the driver of the offending insured vehicle and the charge sheet was also filed against the driver of the said vehicle. Further the first respondent, the owner of the car did not contest the case and remained ex parte.

12. The appellant relied upon the evidence of R.W.1 and R.W.2 and Exs.R1 to R4. The Special Sub Inspector of Police attached to Palanichettipatty Police Station was summoned