JUDGMENT

The above Civil Miscellaneous Petition is directed against the judgment and decree dated 16.10.2019 in M.C.O.P.No.3574 of 2018 on the file of the Motor Accidents Claims Tribunal (The Chief Judge, Small Causes Court), Chennai.

2. Shortly stated, on 12.02.2018 at about 13.50 hours, the deceased was travelling as a pillion rider on a motorcycle bearing Registration No.TN 10 AW 5136 in Nungambakkam Kodambakkam High Road near Valluvarkottam, at that time, the thuppatta was got into the back wheel of the motorcycle, due to which the deceased fell down from the vehicle and sustained fatal injuries.

3.Accordingly, the claim for compensation for a sum of Rs.72,00,000/- has been made by the legal heirs of the deceased.

4. The 2nd respondent/Insurance Company alleged that the deceased was solely responsible for the accident. Therefore, the respondents are not responsible for the accident.

5. Accordingly, the Tribunal framed following points for consideration:-

1.Whether the accident had occurred due to rash and negligent riding of the 1st respondent's vehicle by its driver?

2.Whether the respondents are liable to pay compensation?

3.Whether the petitioners are entitled to compensation as claimed in the petition?

6. The Tribunal came to the conclusion that the rider of the motorcycle was alone not responsible for the accident and the deceased had also contributed to the accident. Hence, the Tribunal found that the pillion rider as well as the motorcycle rider was responsible for the accident and fixed the liability at the ratio of 50:50 respectively and held that the claimants are entitled to claim compensation jointly and severely from the owner and insurer of the offending vehicle. The compensation of Rs.4,81,730/- has been awarded carrying interest at the rate of 7.5% per annum. Aggrieved by this, the present appeal is preferred by the claimants.

7. Through this appeal, award has been challenged on the ground that the Tribunal erred in fixing 50% of Contributory Negligence on the part of the deceased, eventhough the accident took place due to the rash and negligent driving of rider of the motorcycle. If the rider of the motorcycle has driven the vehicle slowly, accident would not happened, therefore, fixing 50% of contributory negligence is unreasonable. The claimants are the husband and son of the deceased and the compensation awarded under the head loss and affection is very low. It is further submitted that the Tribunal has erroneously deducted the medical bills claimed under the Mediclaim Policy, since the policy was purchased under the private agreement with the Mediclaim Insurance Company by paying concerned charges. Under such circumstances, it is not correct to deduct the medical expenses which has been reimbursed through Mediclaim Policy. It is further contended that the Tribunal failed to award any amount under the head of Transportation, Consortium and loss of Estate and Mental agony caused to the appellants. The further submission is that very meager amount under the head of Funeral Expenses and Love and affection have been awarded by the Tribunal. In the above circumstances, the appellants/claimants prays for enhanced compensation.

8. No doubt, it is admitted fact that at the time of the accident, the offending vehicle namely, the motorcycle bearing Registration No. TN 10 AW 5136 did not have a Saree guard, that made the thuppatta of the deceased to get into inserted into the back wheel of the said vehicle. So, it cannot be said that the deceased was solely responsible for the alleged accident. At the same time, the negligence on the part of the deceased cannot be ruled out. If she had been careful, the accident would not have occurred. However, fixing 50% Contributory Negligence on the part of the deceased is unreasonable. Therefore, considering the facts and circumstances, this Court deems it fit that 25% of Contributory Negligence on the deceased. Accordingly, 25% percent alone fixed as Contributory Negligence on the de