Negligence must be established with evidence, and contributory negligence cannot be presumed without proof.

(Judgment of the Court was delivered by N.ANAND VENKATESH, J.)

This appeal has been filed by the Insurance Company against the award passed by the Motor Accident Claims Tribunal / Additional District Court, Paramakudi in M.C.O.P.No.14 of 2018 dated 25.01.2023.

2. Heard the learned counsel on either side.

3. The respondent Nos.1 to 3 were the claimants before the Tribunal. They filed a claim petition on the ground that the body of the deceased Karuppiah, who is the husband of the first respondent and father of the second and third respondents, was found near the bridge at Ayyanarkovil and an FIR came to be registered in Crime No.343 of 2017 for the offence under Section 304 (A) of IPC by the Paramakudi Taluk Police Station.

4. According to the claimants, the deceased was sleeping at Kumaran Store Manufacturing Company during the night hours, since his two-wheeler was in repair and at that time, the lorry belonging to the fourth respondent ran over the deceased and caused serious injuries, as a result of which, the deceased succumbed to the injuries.

5. The appellant / Insurance Company took a stand that two different versions have been given by the claimants with respect to the cause of demise of the deceased and they have improved the case at a later stage. The Insurance Company has also taken a stand that the deceased should have been under the influence of alcohol and had slept in an open place inside a cement factory and hence, had contributed for the accident. Accordingly, the appellant / Insurance Company sought for the dismissal of the claim petition.

6. The claimants examined P.W.1 and P.W.2 and marked Ex.P.1 to Ex.P.21. The appellant / Insurance Company examined R.W.1 and R.W.2 and examined Ex.R.1 to Ex.R.7.

7. The Tribunal broadly dealt with two issues. The first issue was as to whether there was negligence on the part of the driver of the lorry, who had ran over the body of the deceased and the second issue was whether the compensation claimed by the claimants is just and reasonable.

8. The Tribunal, on considering the facts and circumstances of the case and on appreciation of evidence, came to a conclusion that the accident had taken place only due to the negligence on the part of the lorry driver. Having rendered such a finding, the Tribunal fixed the total compensation of Rs.18,30,000/- (Rupees Eighteen Lakhs and Thirty Thousand only) payable with interest at the rate of 7.5 interest per annum.

9. The main ground that was urged by the learned counsel appearing for the appellant is that there was certainly contributory negligence on the part of the lorry driver and the same has not been taken into consideration by the Tribunal. It was further submitted that the manner in which the accident had taken place itself is questionable, since two versions were given with respect to the incident. The learned counsel further submitted that the compensation fixed by the Tribunal is exorbitant.

10. Insofar as the issue of negligence is concerned, the Tribunal took into consideration the evidence of P.W.1 and P.W.2. The Tribunal mainly focused on the evidence of P.W.2, who is an eye witness to the incident. He had stated that the two-wheeler belonging to the deceased was under repair and he had sought for a spanner to refix the chain and since it was not available, he parked the vehicle and slept inside the factory and at about 02.00 a.m., the driver belonging to the lorry which is owned by the fourth respondent drove in a rash and negligent manner and the left side front tyre ran over the deceased and as a result, he died.

11. The Tribunal also took into consideration the FIR that was registered in Crime No.343 of 2017 and the pol