COMMON JUDGMENT

CMA(MD)No.1115 of 2018 filed by the Oriental Insurance Company challenging the award passed by the Motor Accident Claims Tribunal (VI Additional District Judge), Madurai, in MCOP No.2275 of 2015, dated 14.06.2018, whereas CMA(MD)No.1170 of

2018 filed by the claimants seeking enhancement of compensation.

2.The short facts of the case is that on 12.06.2014 at about

13.45 hours, the deceased Chandran @ Ramachandran was riding the two wheeler TN-63-H-6796 on Vijayankudi Village Road in Manamadurai to Ilayankudi Main Road and when he was nearing Therkku Vaikkal Eighth Madai, at that time, another two wheeler TN-63-AF-3489 came in a rash and negligent manner and dashed against the deceased vehicle and due to it, the deceased sustained grievous head injuries and died on the same day itself. The legal heirs of the deceased filed a claim petition seeking compensation of Rs.50,00,000/- on the ground that the driver of the offending vehicle caused the accident.

3.The claimants have stated that the deceased was 43 years at the time of accident and he was working as 'Production Operator' in Pre-Circuit Technology Corporation SDN BHD, Malaysia, thereby he was earning Rs.6,00,000/- per annum. It is alleged that the said Chandran @ Ramachandran died only due to the negligence on the part of the driver of the offending vehicle.

4.In the counter filed by the Oriental Insurance Company, they disputed the manner of accident and their liability to pay compensation.

5.Before the tribunal, on the side of the claimants, 2 witnesses were examined and marked 26 documents. On the side of the Insurance Company, 4 witnesses were examined and 7 documents were marked.

6.The Tribunal, on consideration of oral and documentary evidence adduced by the parties, came to the conclusion that the driver of both the two wheelers, was responsible for the accident and awarded compensation of Rs.14,59,450/- together with interest @ 7.5% p.a, by fixing the negligence at 60% on the side of the offending vehicle and 40% on the side of the deceased and directed the Insurance Company to pay the award amount and then recover the same from the owner of the offending vehicle. Aggrieved by the award of the tribunal, the Insurance Company and the claimants are before this court.

7.Heard both sides and perused the materials available on record.

8.The first contention of the learned counsel appearing for the Insurance Company is that at the time of accident, the deceased consumed alcohol and hence, the accident had occurred due to the rash and negligent driving of the deceased and not due to the rash and negligent driving of the offending vehicle and hence, the entire negligence can be fixed on the deceased and prays that the Civil Miscellaneous Appeal has to be allowed.

9.On the other hand, the learned counsel appearing for the claimants submitted that at the time of accident, the deceased was not in drunken mood and in the AR copy of the injured, it was shown that at the time of autopsy, the Doctor found breach of alcohol from the deceased and hence, only due to the rash and negligent driving of the offending vehicle driver, the accident occurred and even though in Ex.R5 AR copy, it was stated that breach of alcohol smell from the deceased and to find out whether the deceased consumed alcohol no urine or blood was conducted and hence, it was not proved that at the time of accident, the deceased consumed alcohol and hence, there was no negligence on the part of the deceased and prays that the CMA(MD)No.1170 of

2018 has to be allowed.

10.In this case, to prove that at the time of accident, the deceased was in intoxicant mood, on the side of the Insurance Company, steps were taken to examine the Doctor, who gave treatment to the deceased. But the alleged Doctor did not appear before the Court. However, the AR copy was produced and marked as Ex.X5.

11.On perusal of Ex.X5, it is stated that “the alleged road traffic accident took place near Vijayankudi. Travelled in two wheeler on