IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 09.02.2024 CORAM:

THE HONOURABLE MR. JUSTICE K. RAJASEKAR C.M.A. Nos. 1748 and 1749 of 2021 C.M.A. No. 1748 of 2021 Kalamani ... Appellant / Petitioner Vs.

1. M.I. Mansoor

2. M/s. National Insurance Co. Ltd., Represented by its Divisional Office – I, L.R.N. Complex, Salem – 636 007. ... Respondents/ Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Judgment and decree dated 17.02.2021 passed in M.C.O.P. No. 1292 of 2019 on the file of the Special District Judge, MCOP Tribunal, Salem.

For Appellant : M/s. M. Guruprasad For R1 : Dispensed With For R2 : M/s. S. Vadivel

1. Kalamani

2. Minor Surya

3. Minor Maikalraj

4. Minor Neela ... Appellants / Petitioners Vs.

1. M.I. Mansoor

2. M/s. National Insurance Co. Ltd., Represented by its Divisional Office – I, L.R.N. Complex, Salem – 636 007. ... Respondents/ Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Judgment and decree dated 17.02.2021 passed in M.C.O.P. No. 1294 of 2019 on the file of the Special District Judge, MCOP Tribunal, Salem.

For Appellant : M/s. M. Guruprasad For R1 : Dispensed With For R2 : M/s. S. Vadivel ******

JUDGMENT These Civil Miscellaneous appeals have been filed by the claimants seeking enhancement of compensation awarded in M.C.O.P. Nos. 1792 and

1794 of 2019, dated 17.02.2021 on the file of the Special District Judge, M.C.O.P. Tribunal, Salem.

2. For the sake of convenience, the parties are referred herein according to their litigative status and rank before the Tribunal. The brief facts leading to filing of this appeal is as follows:

3. On 24.03.2019, at about 8:30 AM, the deceased Sekar along with his son Dharani as a pillioner was riding a two wheeler bearing Registration No.TN-33-K-6919 on Salem – Coimbatore National Highway, inorder to cross the highway road, he stopped the two wheeler at an inter junction near JKKN College, Vattamalai, at that time, a Mini Lorry bearing Registration No.TN-66-S-2589, driven by its driver in a rash and negligent manner, dashed against the two wheeler of the deceased Sekar and caused instant death to both the rider and the pillion rider. A criminal case was registered against the driver of the Mini Lorry in Cr.No.187/2019 U/s. 279, 304(A) of IPC on the file of Komarapalayam Police Station. For the loss of both Sekar and his Dharani, dependants of both deceased have filed separate claim petitions claiming compensation for a sum of Rs.48,00,000/- and Rs.25,00,000/-, respectively by invoking section 166 of the Motor Vehicles Act, 1988.

4. The first respondent is the owner of the Mini Lorry has not contested the claim and remained ex-parte. The second respondent – insurance company filed a counter, denied the manner in which the accident has taken place and contended that the accident was taken place only due to the negligence on the part of the deceased Sekar, who has all of a sudden entered into the middle of the national highway, thereby invited the accident. The insurance company further contended that the deceased Sekar as well as the first respondent's driver does not possess a valid driving licence at the time of accident and the compensation claimed under various heads are on the higher side.

5. The Tribunal after considering the evidences placed on record has fixed the contributory negligence of 30% on the part of the deceased Sekar for not wearing helmet and not possessing a valid driving licence and 15% on the part of the deceased Dharani for not wearing helmet at the time of accident. The Tribunal has also quantified and granted compensation for a sum of Rs.11,28,400/- and Rs.5,44,080/- for the loss of deceased Sekar and deceased Dharani, respectively along with interest @ 7.5% per annum from the date of filing of petition till the date of realization.

6. Aggrieved over the award, the claimants have come forward with this appeal seeking enhancement of compensation.