IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.02.2024 CORAM:

THE HONOURABLE MR.JUSTICE K. RAJASEKAR C.M.A.No.2865 of 2021

1. Kalaiselvi

2. Indhumathi

3. Minor. Ranjani 4. Seerangammal

5. Nadesan ... Appellants Vs.

1. Ravi

2. United India Insurance Company Limited Rep.by its Divisional Office-II (HUB)

No.104-A, Peramanoor Main Road, Salem - 7. ... Respondents Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 10.03.2020 made in M.C.O.P.No.435 of 2020 on the file of Motor Accident Claims Tribunal Special District Judge, Salem.

For Appellants : Mr.S.P.Yuaraj For Respondents : Mrs.I.Malar for R2 R1 - Dispensed with

J U D G M E N T

This Civil Miscellaneous Appeal has been filed challenging 25% of contributory negligence fixed on the part of the deceased as well as for enhancement of compensation granted by the award dated 16.04.2021 made in M.C.O.P.No.435 of 2020 on the file of the Motor Accident Claims Tribunal, Special District Judge, Salem.

2. According to appellants/claimants, on 18.12.2019 at about 9:00 p.m.

the deceased Samivel was travelling as a pillion rider in a two wheeler bearing Registration No. TN 34 X 6867 on Komarapalayam - Veppadai road. While he reached near Muniyappan Kovil it is said the offending vehicle bearing Registration No.TN 36 AR 5949 which was coming from the opposite direction driven by its driver in a rash and negligent manner hit against the two wheeler resulted in the death of the deceased. The accident occurred due to the rash and negligent driving of the driver of the bus bearing Registration No. TN 36 AR 5949. The Pallipalayam Police had registered a case in Cr.No.725 of 2019 against the driver of the bus. The deceased Samivel was aged 40 years at the time of accident and he was working as a load man and was earning a sum of Rs.30,000/- per month. The petitioners are the wife, children and parents of the deceased and they were depending only upon the deceased Samuvel. Therefore, the claimants have come forward with the petition seeking for a sum of Rs.50,00,000/- by invoking Section 166 of Motor Vehicles Act.

3. The 1st respondent owner of the bus has not contested the claim and remained exparte.

4. The learned counsel appearing for the 2^nd respondent/Insurance Company submitted that the accident is a head on collision of a two wheeler bearing Registration No.TN 34 X 6867 and a bus bearing Registration No.TN 36 AR 5949 insured with this 2nd respondent. The rider of the two wheeler had sustained only a simple injury, but the pillion rider (deceased) had a head injury and jumped out of the two wheeler on seeing the bus coming on the opposite direction. The deceased had fallen down from the two wheeler as he had travelled without required precaution. Both the rider of the two wheeler and the pillion rider (deceased) was not wearing the helmet. The owner and insurer of the two wheeler are necessary parties for the final adjudication of the claim. The appellants have to prove that they are the legal heirs of the deceased and also the age, avocation and income of the deceased by producing valid documents. In any event, the quantum of compensation claimed by the claimants is highly excessive and prayed for dismissal of the claim petition.

5. Before the Tribunal, on behalf of the appellants, the first appellant examined herself as P.W.1 and one Ramesh, was examined as P.W.2 and 23 documents were marked as Exs.P1 to P23. The respondents did not let in any oral and documentary evidence.

6. The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred due to the rash and negligent riding by the rider of the bus belonging to the 1^st respondent and fixed 25%

negligence on the part of the deceased for not wearing helmet at the time of accident and 75% negligence on the part of the driver of the bus belonging to the 1^st respondent and directed the 1st and 2^nd respondent jointly and severally to pay