JUDGMENT :

1. Aggrieved by the Order dated 24.08.2011 in MVOP.No.103 of 2007 passed by the Chairman, Motor Accident Claims Tribunal – Cum – I Additional District Judge, Anantapur, (for short ‘the Tribunal’, the New India Assurance Company Limited, represented by the Divisional Manager, Anantapur who is arrayed as 2nd respondent in MVOP.No.103 of 2007 filed this appeal questioning the awarding compensation amount of Rs.13,35,000/- with interest and proportionate costs.

2. For convenience sake, hereinafter the parties will be referred as they were arrayed in MVOP.No.103 of 2007.

3. The petitioners in MVOP.No.103 of 2007 who are the respondents 1 to 3 in this MACMA filed claim petition before Tribunal under Sec.140 and 166 (c) of Motor Vehicle At claiming the compensation amount of Rs.15,00,000/- with costs for the death caused to Dandu Ramgopal in Motor Vehicle Accident. The relationship of the petitioners as claimed in the petition is not in dispute. The 1st petitioner is the wife, petitioners 2 and 3 are the children of deceased. As per the case of the claimants on 03.05.2006 while the deceased Dandu Ramgopal (herein after referred as ‘deceased’) was proceeding in his car bearing No.AP02M3734 from Kadapa to Anantapur and when he reached near Chowtipali colony on Kadapa to Tadipatri road one lorry bearing No.TN.23A2929 (hereinafter referred as ‘offending vehicle’) came from the opposite side dashed against the car and as a result of which car was thrown out by the side of the road and Ramgopal died in the car and a case in Cr.No.23 of 2006 of Kondapuram Police Station, registered under section 304-A of Indian Penal Code against the driver of the lorry. It is not in dispute that the deceased was working as Assistant Hydro Geologist in APSIDC, Project Office, Kadapa and getting salary of Rs.23,000/- per month and the 1st respondent is owner and the 2nd respondent is the insurer of the lorry.

4. It is the contention of the 2nd respondent that the deceased was driving the car from Kadapa to Anantapur in a high speed and in order to overtake the opposite lorry, suddenly he had taken right side to the road without observing the road rules and dashed against the lorry, resulting the accident and the claim of the petition is excessive.

5. Based on the pleadings the Tribunal formulated the following issues for trial.

1. Whether the accident occurred on 03.05.2006 due to rash and negligent driving of the vehicle lorry bearing No.TN23A2929 by its driver and dashed against the car bearing No.AP02M3724 of the deceased and caused death of the deceased ?

2. Whether the petitioner is entitled to compensation ? If so, to what amount and from which respondent ?

3. To what relief ?

6. On behalf of claimants PWs.1 to 3 were examined and Exs.A1 to A4 and Ex.X1, X2 are marked and on behalf of respondents RW.1 is examined and Exs.B1 and B2 documents were marked.

7. After considering the evidence adduced on behalf of both sides, the Tribunal has given the finding that there was a contributory negligence on the part of the car driver and the lorry driver also and contributory negligence is 40% is on car driver and 60% is on lorry driver, and as compensation amount is fixed at Rs.22,25,000/- and the Tribunal observes that the 2nd respondent is liable to pay Rs.13.35.000/- towards its 60% share.

8. Heard the arguments of learned counsel for the appellant and respondent and perused the record.

9. Learned counsel for the appellant argued that the Tribunal failed to see that the deceased himself was responsible for the accident and it grossly erred in apportioning the liability at 40%:60% between the deceased and the driver of the lorry. On behalf of claimants no appeal or cross objections preferred questioning the finding of the Tribunal. Leaned counsel appeared for claimants supported the findings and observation of the learned Tribunal.

10. Now the point for determination is whether the tribunal is justified in holding that the accident occurred due to contributory