Insurer failed to prove contributory negligence or challenge income evidence; Tribunal's full liability and compensation upheld.

JUDGMENT

This Civil Miscellaneous Appeal is preferred against the Award, dated 15.03.2024 passed in M.C.O.P.No.1749 of 2022 by the Motor Accident Claims Tribunal/Special District Court, Madurai.

2.The second respondent in M.C.O.P.No.1749 of 2022 is the appellant herein. The petitioners/claimants are the respondents 1 to 3 herein, who filed st the claim petition and the 1 respondent in the claim petition is the th 4 respondent herein.

3.For the sake of convenience, the parties as arrayed in M.C.O.P.No.1749 of 2022 are adopted hereunder. 4.The brief facts of the case: On 05.08.2022 at about 5.30 p.m., the deceased Selvakumar was riding a two wheeler bearing registration No.TN 07 AR 1833 along the Virudhunagar to Thirumangalam NH road from south to north and while he was riding near Kallikudi Naira petrol bunk, the 1st respondent’s lorry bearing registration No.TN 52 3308, driven by its driver in a rash and negligent manner, hit behind the rear of the two wheeler. Due to the impact, the rider, Selvakumar, sustained fatal injuries and died on the spot. A case was registered in Crime No.115 of 2022 U/s.279 and 304(A) of theagainst the driver of the 1strespondent’s lorry by Kallikudi Police Station. At the time of death, the deceased Selvakumar was working as an Assistant in a Driving School and was earning Rs.1,000/- per day. The petitioners 1 to 3 are the wife and the children of deceased Selvakumar and they were dependent on the income of the deceased Selvakumar. The offending vehicle was insured with the second respondent. Hence, the petitioners filed a claim petition seeking compensation of Rs.30,00,000/-.

5.The first respondent remained ex-parte before the Tribunal.

nd 6.The 2 respondent/Insurance Company objected to the claim petition by contending that the deceased Selvakumar had ridden the two wheeler without wearing a helmet in a rash and negligent manner and dashed behind the lorry. The driver of the lorry was not responsible for the accident. The deceased Selvakumar was alone responsible for the accident. Hence, the nd 2 respondent is not liable to pay any compensation to the petitioners.7.Before the Tribunal, both sides adduced oral and documentary evidence. The petitioners examined three witnesses as P.W.1 to P.W.3 and marked 13 documents as Ex.P.1 to Ex.P.13. On the second respondent's side, two witnesses were examined as R.W.1 & R.W.2, but no exhibit was marked.

However, Ex.X.1 and Ex.X.2 were marked.

8.After hearing both sides and after considering the evidences, the Tribunal has held that the accident took place due to the negligence on the st part of the driver of the 1 respondent’s driver and has awarded st compensation of Rs.34,04,948/-, out of which the 1 petitioner is entitled to Rs.22,04,948/- and the petitioners 2 and 3 are entitled to Rs.6,00,000/- each with interest and cost, by its order, dated 15.03.2024.

9.Aggrieved by the said award, the 2^nd respondent/Insurance Company has preferred this Civil Miscellaneous Appeal.

10.Heard both sides and perused the records in this Civil Miscellaneous Appeal.

11.The learned counsel appearing for the appellant/Insurance Company has mainly argued that the deceased Selvakumar died of a head injury, which proves that he did not wear a helmet. The Tribunal has not discussed about this aspect. The deceased drove his two wheeler and dashed behind the lorry. So, some contributory liability has to be fixed upon the deceased Selvakumar.

12.The learned counsel for the petitioners/claimants stated that the lorry hit behin