BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 14.10.2024 CORAM THE HON'BLE MR.JUSTICE SUNDER MOHAN C.M.A.(MD) No.815 of 2024

1.Ambigavathi, 2.S.Rajarathinam. ... Appellants Vs.

1.D.Muruganantham, 2.The Manager, Sriram General Insurance Co. Ltd., No.306, LIG, Nagasundaram Complex, II Floor, Suguna Stores Building, Anna Nagar, Madurai – 625 020.

3.The Divisional Manager, New India Assurance Co. Ltd., CMTS Bhavan, BSNL Buildings, Ellis Nagar, Madurai. ... Respondents Prayer: Civil Miscellaneous Appeal filed Section 173 of the Motor Vehicle Act, 1988, against the judgment and decree dated 18.10.2024 passed in M.C.O.P.No.465 of 2013, on the file of the Motor Accidents Claims Tribunal/Special District Judge (MACT), Madurai.

For Appellant : Mr.S.Kumaravel For Respondents for R1 : Dispensed with for R2 : Mr.V.Sakthivel for R3 : Mr.N.Dilipkumar *****

J U D G M E N T

The instant appeal has been filed challenging the finding on negligence and seeking enhancement of compensation.

2. The appellants filed a claim petition stating that while the deceased was riding his motor cycle in track meant for two wheelers in the Natham main road, a lorry insured with the second respondent was parked on the road without any signal or indication during night hours and since the deceased was blinded by the headlights of the vehicle coming in the opposite direction, the deceased dashed against the lorry and sustained fatal injuries.

3. The third respondent herein/insurer of the deceased filed a counter stating that the deceased did not wear helmet and therefore, they are not liable to pay compensation.

4. The second respondent herein/insurer of the lorry filed a counter stating that the insured vehicle was parked on the extreme left hand side of the road, as can be seen from the rough sketch prepared by the Police and therefore, the deceased was negligent and hence, they are not liable to pay compensation.

5. Before the Tribunal, the appellant examined P.W.1 to P.W.3 and marked Exs.P1 to P14. The respondents 2 and 3 examined R.W.1 to R.W. 4 and marked Exs.R1 and R2. The final report and the rough sketch were marked as Exs.X1 and X2, respectively.

6. The Tribunal, after taking into consideration the oral and documentary evidence, held that the accident took place both due to the negligence of the deceased and the driver of the insured lorry and apportioned contributory negligence at 40% on the deceased and 60% on the lorry driver and also fixed the total compensation of Rs.13,44,400/-, out of which, it directed the respondents 1 and 2 to pay Rs.8,06,640/- to the appellants.

7(a). The learned counsel for the appellants/claimants submitted that the Tribunal had apportioned 40% contributory negligence on the deceased, only on the ground that the deceased did not wear helmet and there is no evidence to suggest that the deceased did not wear helmet and hence, prayed for setting aside the finding on contributory negligence.

7(b). The learned counsel further submitted that the appellants/claimants had produced Ex.P10/salary slip of the deceased, which was marked through P.W.3-employer of the deceased, that would show that the deceased was earning Rs.12,675/- p.m.; and that the Tribunal had erroneously rejected the said certificate and hence, prayed for enhancement of the compensation.

8(a). The learned counsel for the second respondent/contesting respondent, per contra, submitted that the Tribunal ought to have fixed higher contributory negligence on the deceased, since the rough sketch would show that the lorry was parked in the extreme left hand side of the road and the FIR was lodged against the deceased.

8(b). The learned counsel also submitted that the quantum of compensation awarded by the Tribunal is just and reasonable and no interference is called for.

9. Heard the learned counsel for the third respondent. Since the first respondent remained ex parte before the Tribunal, notice to the first respondent is dispensed with.

10. The points for consideration in the ins