Contributory negligence must be established with clear evidence; lack of a driving license alone is insufficient to impose such negligence.

JUDGMENT

Appellants/claimants are the claimants in O.P.(MV)

No.418/2008 on the file of Motor Accidents Claims Tribunal (for short 'the Tribunal'), Manjeri. The claim petition was filed under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act') for compensation due to the death of their minor son, on a motor accident occurred on 25.12.2007 at about 2.15 p.m, while the deceased was riding motor cycle by hit with a tanker lorry bearing Reg.No.KL 10AA 5313 at Akkarapuram. It is alleged that the accident happened due to the rash and negligent driving of the driver/owner of the tanker lorry, who is the first respondent. 2nd respondent is the insurer of the tanker lorry. Total compensation of Rs.8 lakhs was claimed.

2. Before the Tribunal, respondents 1 and 2 filed written statement denying the negligence and rashness on the part of the first respondent. Policy coverage with respect to the offending vehicle is admitted by the second respondent and it is further contended that the deceased had been overtaking the tanker lorry in utmost disregard of traffic rules and safety measures and invited the accident and hence the deceased had contributed to the accident. It is also contended that he was not qualified to apply for licence to ride the motorcycle since he was only 16 years old.

3. Exts.A1 to A7 were marked from the side of the appellants/claimants. There was no oral evidence from either side.

4. The Tribunal, on evaluating the evidence as well as the documents produced from the side of the appellants/claimants, found that there is 50% contributory negligence on the part of the deceased. A total compensation of Rs.3,06,000/- was arrived at, but after deducting 50% towards contributory negligence, Rs.1,53,000/- was awarded with interest @ 9% per annum from the date of petition till realisation.

5. Aggrieved by the award passed by the Tribunal, the appellants/claimants (hereinafter be referred as 'the claimants')

are in appeal before this Court.

6. The first and the second respondents were duly served and there was no appearance for the first respondent. Second respondent appeared through Standing Counsel Sri.Latheesh Sebastian. Heard the learned counsel for the claimants as well as the learned Standing Counsel for the insurer. Lower court records were called for and perused.

7. According to the learned counsel for the claimants, the finding of contributory negligence made by the Tribunal is illegal and irrational and has to be set aside. He would also contend that the deceased was a salesman in a shop earning Rs.6,000/- per month but the Tribunal has taken only Rs.3,000/- as the monthly income. Compensation under the conventional heads awarded is also very low and hence he seeks for enhancement of monthly income and amount awarded under the conventional heads.

8. Learned Standing Counsel for the insurer, on the other hand, would contend that the deceased was a minor boy who did not have a valid driving licence to ride the motorcycle and the parents also permitted him to ride the motorcycle in his tender age without having any driving licence and thereafter they are coming before the court for claiming compensation due to the death of the son and it should not be encouraged. Hence the contributory negligence found by the Tribunal is not to be interfered with. It would atleast be a lesson to other parents also who are not taking proper care and caution in avoiding the minor children riding motorcycles and other vehicles and causing accidents. He would also contend that the deceased was only 16 years and 7 months old and hence the case of the claimants that the deceased was earning Rs.6000/- per month cannot, be accepted and hence Rs.3,000/- taken by the Tribunal as notional income is perfectly legal and there is no need to enhance the monthly income.

9. I would first deal with the finding regarding contributory negligence. It has been found by the Tribunal that the deceased was attempting to overtake the slower moving big vehicle