IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23.04.2024 CORAM THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH Civil Miscellaneous Appeal No.2563 of 2024

1.Lakshmi

2.Suki

3.Minor Priyadharshini

4. Minor Subathirai ... Appellants Vs.

1. Elumalai [Since 1st respondent remained exparte before the Tribunal his presence may be dispensed with] 2. The Oriental Insurance Company Limited, 3rd Party Claim HUB, 32/312, 13th Street, PhaseII, Sathuvacheri, Vellore ... Respondents Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, to enhance the award against the judgement and decree dated 31.08.2021 and made in M.AC.T.O.P.No.210 of 2019 on the file of the Motor Accident Claims Tribunal, (Subordinate Judge)., Vaniyambadi.

For Appellant : Mr.A.Subadra For Respondents : Mr.M.J.Vijayaragavan for R2 *****

JUDGMENT

The appellants/claimants, not being satisfied with the quantum of compensation awarded by the Tribunal, have filed this appeal against the award passed in M.A.C.T.O.P.No.210 of 2019, on the file of the Motor Accident Claims Tribunal, Vaniyambadi, seeking for enhancement of compensation.

2. The case of the claimants is that the deceased Dhandabani was riding a two wheeler on 26.05.2019 at Kattukollai to Vellakuttai Main Road and at about 2.00 p.m., when the vehicle was nearing Pulliyanginaru, the Tractor belonging to the 1^st respondent was driven in a rash and negligent manner and it dashed on the rear side of the two wheeler and ran over the deceased. The same resulted in the instantaneous death of the deceased. An FIR came to be registered in Crime No.273 of 2019 against the driver of the Tractor. It is under these circumstances, the claim petition came to be filed before the Tribunal seeking for compensation.

3. The Tribunal, on considering the facts and circumstances of the case and on appreciation of oral and documentary evidence, came to a conclusion that the accident had taken place only due to the rash and negligent driving on the part of the driver of the Tractor belonging to the first respondent. Having rendered such a finding, the Tribunal proceeded further to attribute contributory negligence of 35% against the deceased. For not possessing a valid driving license, contributory negligence of 20% was attributed and for not wearing the helmet, another 15% was attributed.

4. The Tribunal calculated the compensation under various heads and the total compensation was fixed at Rs.16,34,348/-. Out of this, 35% was deducted towards contributory negligence and the balance sum of Rs.10,48,577/- was directed to be paid by the 2^nd respondent with interest @ 7.5%. The claimants not being satisfied with the quantum of compensation being reduced on the ground of contributory negligence, have filed the present appeal before this Court.

5. Heard Mr.A.Subadra, learned counsel for appellants/claimants and Mr.M.J.Vijayaragavan, learned counsel for second respondent insurance company.

6. This Court carefully considered the submissions made on either side and the materials available on record.

7. This Court also carefully went through the award passed by the Tribunal.

8. The learned counsel for the appellants submitted that the Tribunal after having come to a categoric conclusion that the entire negligence was on the part of the driver of the tractor, ought not to have deducted 35% towards contributory negligence since not possessing a valid driving license and not wearing the helmet, did not have any impact on the aspect of negligence in this case.

9. The learned counsel for insurance company submitted that driving the vehicle with a valid driving license and wearing head gear are statutory requirements which if not followed, should be taken into account and contributory negligence must be attributed in those cases. To substantiate his submission, the learned counsel relied upon the judgement of this Court in [Reliance General Insurance Company Limited, Chennai Vs. B.Chithra] reported in 2018 2 TNMAC 302 (DB) and [The Branch M