J U D G M E N T

This Civil Miscellaneous Appeal has been filed for enhancement of compensation granted by the award dated 11.01.2021 made in M.C.O.P.No. 638 of 2017 on the file of the Motor Accident Claims Tribunal, Special District Court, Erode.

2.The appellant is the claimant in M.C.O.P.No.638 of 2017 on the file of the Motor Accident Claims Tribunal, Special District Court, Erode. He filed the above said claim petition, claiming a sum of Rs.10,60,000/- as compensation on account of the injuries sustained by him in the accident that took place on 19.04.2017.

3.The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent driving by the driver of the car as well as motorcycle and by fixing contributory negligence of 80% on the rider of the car and 20% on the rider of the motor cycle, directed the 2nd respondent-Insurance Company to pay a sum of Rs.3,07,494/- as compensation to the appellant, after deducting the contributory negligence of 20% fixed on him.

4.Not being satisfied with the amounts awarded by the Tribunal, the appellant has come out with the present appeal seeking enhancement of compensation.

5.The learned counsel appearing for the appellant contended that the injured/claimant is 45 years old man and suffered backbone fracture and several injuries all over the body and therefore disability fixed at 15% is very low. He further submitted that amount of compensation awarded towards other heads are also very low and the same needs to be enhanced. It is the further contention of the learned counsel for the appellant that the Claims Tribunal had deducted 20% contributory negligence for not having driving license of the two wheeler rider is against law, for the reason that the appellant/claimant is a pillion rider and mere non possession of license will not make contributory negligence and the same has to be proved and further contributory negligence cannot be fixed by assumption, as per decision of Hon'ble Supreme Court in the case of Dinesh Kumar, J alias Dinesh, J Vs.

National Insurance Co. Ltd & Others reported in 2018 (1) TNMAC 34 6. The learned counsel appearing for the 2nd respondent-Insurance Company submitted that though the claimant was a pillion rider he should not have travelled in triple in a two wheeler, due to which he met with an accident and therefore the contributory negligence has been fixed on the appellant/claimant and therefore the Claims Tribunal cannot be faulted with.

He further submitted that the compensation awarded is reasonable and the Claims Tribunal by way of evidence has clearly held that three persons were in the vehicle and that the person who has ridden the two wheeler did not possess valid licence. He further submitted that the claims Tribunal on considering the oral and documentary evidence has awarded reasonable compensation and therefore the same does not warrant intereference.

7.Heard the learned counsel appearing for the appellants as well as the learned counsel appearing for the 2nd respondent-Insurance Company and perused the entire materials on record.

8. The Claims Tribunal, on considering the evidence of P.W.2-Doctor and Ex.P13- Disability Certificate came to the conclusion that though the Doctor assessed 20% disability, it cannot be taken as such and since there is no evidence with regard to the further treatment taken by the claimant from 02.05.2017, fixed the disability @ 15% and therefore the same need not be interfered with.

9. With regard to the other heads, the Claims Tribunal on considering the oral and documentary evidence has rightly arrived at the reasonable compensation.

10. The contention of the appellant/claimant that the Insurance Company has not proved with regard to contributory negligence cannot be accepted for the reason that the Claims Tribunal, in the light of evidence rendered a clear finding that three persons were in the vehicle and that the person who is riding the two wheeler did not possess va