The appellate court upheld the principle of contributory negligence, reducing compensation for the deceased’s lack of helmet and finding a just compensation through a calculated adjustment of lost income and related benefits.

ORDER :

T.V. THAMILSELVI, J.

This Civil Miscellaneous Appeal has been filed against the judgment and decree dated 05.04.2023 passed in MCOP No.289 of 2022 by the learned Motor Accident Claims Tribunal (Special District Judge) Salem.

2. The facts leading to filing of this Civil Miscellaneous Appeal is as follows:-

(i) On 28.03.2021, at about 04.30 p.m., the Duraisamy was proceeding to Panamarathupatty in his TVS XL Super Motorcycle bearing Reg.No.TN 30 L 0299 towards extreme left isde of the Salem to Namakkal bypass, when the was waiting to cross the road near Panamarathupatty service branch road, a tempo traveller bearing Reg.No.KA-05-AD-8095 which came from Salem to Namakkal , driven by its driver in a rash and negligent manner, hit against the said Duraisamy, due to which, he was thrown away from his two wheeler and sustained grievous injury all over the body. Immediately, he was admitted in G.H., Salem for treatment, but he succumbed to injuries on 07.01.2020.

(ii) The 5^th respondent herein is the owner of the tempo traveller and the appellant is the insurer of the offending vehicle. .

(iii) Since the accident occurred only due to the rash and negligent driving of the tempo traveller, the 5^th respondent-owner of the offending vehicle and the appellant-insurer of the offending vehicle, both are jointly and severally liable to pay compensation to the claimants.

(iv) Hence, the respondents 1 to 4/claimants have made a claim petition before the Special District Judge, MCOP, Tribunal, Salem in M.C.O.P.No.289 of 2022 claiming compensation of Rs.20,00,000/- against the respondents.

(v) According to the claimants, at the time of accident, the deceased was aged 59 years and had been working as security in Meenatchi India Private Ltd., Kandampatty, Salem and was also doing part time job as marriage assembler and was earning Rs.20,000/- per month. Due to the accident, the dependants of the deceased/claimants have lost their only source of income.

(vi) Before the Tribunal, on the side of the claimants, PW1 was examined and exhibits Ex.P.1 to Ex.P.15 were marked. Ex.C.1 and Ex.C.2 on behalf of the court were also marked. On behalf of the respondents, no witness was examined and Ex.R.1 to R3 were marked. The owner of the offending vehicle remained exparte before the tribunal.

(vii) The tribunal, on an appreciation of evidence of witnesses and documents marked as exhibits, awarded a compensation of Rs.9,55,000/-to the claimants along with 7.5% interest from the date of petition till the date of realization. The tribunal directed the owner and insurer of the offending vehicle to pay the above said compensation amount jointly and severally. (viii) The compensation awarded by the tribunal to the appellant/claimant under various heads is as follows;

3. Aggrieved against the compensation awarded by the tribunal on the higher side, the insurance company has preferred the present Civil Miscellaneous Appeal on the ground that the compensation is highly excessive.

4. Learned counsel for the appellant/Insurance Company submits that while the deceased was travelling in the motor cycle, he was not wearing helmet and did not possess valid driving licence. Therefore, there is a negligence on the part of the deceased, but, the tribunal failed to take primary negligence on his part and fixed the contributory negligence on the part of the driver of the tempo vehicle. Further, the learned counsel also submits that the deceased was aged about 70 years as per Ex.R-1 Family Card, but tribunal has mistakenly fixed the age of the deceased as 59 years and applied multiplier of 9 years, instead of 5 years and awarded compensation by deducting 1/4^th towards his personal expenses by taking Rs.10,000/- as his monthly income. The salary slip Ex.P.9 was not properly appreciated, therefore, the fixation of Rs.10,000/- per month as his monthly income