In cases of contributory negligence involving motor vehicles, the liability of the insurer to pay compensation is limited to the percentage of negligence attributed to the insured vehicle by the Tribunal.

JUDGMENT

This Civil Miscellaneous Appeal is preferred against the Award, dated

20.12.2019 passed in M.C.O.P.No.489 of 2017 by the Motor Accident Claims Tribunal/Special Subordinate Court, Dindigul.

2.The second respondent in M.C.O.P.No.489 of 2017 is the appellant herein. The petitioner/claimant is the first respondent herein, who filed the claim petition. The first respondent in the claim petition is the second respondent herein.

3.For the sake of convenience, the parties as arrayed in M.C.O.P.No.489 of 2017 are adopted hereunder.

4.The brief facts of the case:

On 31.05.2015 at about 11.30 a.m., the petitioner Alagumuthuraja was riding as a pillion rider in a two wheeler bearing registration No.TN 59 AU 9920. The two wheeler was ridden by his friend Dhamodaran along the Madurai to Dindigul NH 7 main road and while he was proceeding near Tollgate, he dashed behind a parked container lorry bearing registration No.HR 55 N 7851 belonging to the first respondent. The first respondent’s lorry was parked in the service road in the area meant for road traffic. Due to the impact, the rider died and the petitioner sustained fractures in his jaw and in his left wrist and also multiple injuries all over the body. The petitioner was treated in a private hospital from 31.05.2015 to 07.06.2015. The accident took place due to negligence on the part of the driver of the first respondent’s lorry. The first respondent’s lorry was insured with the second respondent. Hence, the petitioner filed a claim petition seeking compensation of Rs.20,00,000/- for the injuries sustained by him.

5.The first respondent remained ex-parte.

6.The 2^nd respondent/Insurance Company objected that the accident had taken place due to the negligent act of the rider of the two wheeler. The FIR was registered against the rider of the two wheeler and not against the driver of the lorry. The rider of the two wheeler was riding in a rash and negligent manner and dashed behind the parked lorry during the daytime. There is no negligence on the part of the driver of the lorry. Hence, the second respondent is not liable to pay any compensation.

7.Before the Tribunal, both sides adduced oral and documentary evidence. The petitioners examined two witnesses as P.W.1 and P.W.2 and marked 15 documents as Ex.P.1 to Ex.P.15. On the second respondent's side, two witnesses were examined as R.W.1 & R.W.2 and Ex.R.1 was marked and also Ex.X.1 to Ex.X.3 were marked.

8.After hearing both sides and after considering the evidence, the Tribunal has held negligence on both the driver of the lorry and the rider of the two wheeler and fixed the negligence at 40% + 60%, respectively. The Tribunal has arrived at a total compensation of Rs.1,70,730/- and has directed the second respondent to deposit the entire compensation amount within two months with interest and costs.

9.Aggrieved by the said award, the second respondent has preferred this Civil Miscellaneous Appeal.

10. The points to be determined are:

(1) Whether the first respondent’s lorry driver was not fully responsible for the accident as the rider of two wheeler hit behind a stationed lorry?

(2)Whether the Tribunal failed to direct the owner/Insurance Company of two wheeler to pay compensation at 60% contributory negligence fixed by it?

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

12.It is the main contention of the counsel for the appellant/

nd

2 respondent Insurance Company is that after proper appreciation of evidences, the Tribunal has correctly fixed contributory negligence of 40% on the part of the driver of the lorry and 60% on the part of the rider of the two wheeler as rightly concluded in its order. However, while directing the payment of compensation, the Tribunal has direct