Contributory negligence in motor accident cases cannot be assumed from the mere non-use of protective gear without evidence establishing that such omission caused or contributed to the accident. Appellate courts may rectify errors in multiplier application to ensure the award of just and reasonable compensation.

JUDGMENT

Not satisfied with the quantum of compensation granted in Award dated

23.03.2023 passed in M.C.O.P.No.18 of 2021 on the file of the Motor Accident Claims Tribunal/First Additional District Court, Namakkal, the legal heirs of the deceased Sathish Kumar has preferred this Civil Miscellaneous Appeal for enhancement of compensation.

2. Parties are indicated herein as per their litigative status and ranking before the Tribunal.

3. According to the claimants, on 03.10.2020 at about 5.30 p.m. when the deceased Sathish Kumar was riding his motor cycle bearing Reg.No.TN 28 AR 9659 along Pallapatti-Thottipatti Road, in front of the residence of Sivakumar, the driver of the Tipper Lorry bearing Reg.No.TN.28AK 6274 came in a rash and negligent manner and at high speed hit upon the two wheeler and thereby the accident occurred. In the result, the said Sathish Kumar, succumbed to the injuries on the way to Hospital on the same day.

3.1. As the accident occurred due to the rash and negligent driving of the driver of the aforesaid Tipper Lorry, its Owner and Insurer, namely first and second respondents are liable to pay compensation to the claimants herein. The claimants herein filed claim petition , claiming a compensation of Rs.50,00,000/- for the death of Sathish Kumar.

4. First respondent remained exparte before the Tribunal.

5. It was contended by the second respondent that as to the manner in which the accident occurred, it has to be proved by the claimants. It is because of the rash and negligent driving of the two wheeler, accident occurred. He did not wear helmet at the relevant point of time; the claimants are put to strict proof of age, avocation, income of the deceased and other details.

6. At trial , to substantiate the claim of the claimants, two witnesses have been examined and nineteen documents have been marked. On the side of the second respondent / insurance company , no evidence was led in.

7. The learned counsel for the claimants would vehemently contend that as per the exhibits marked by the claimants, age of the deceased was 35 years and fixing of contributory negligence upon the deceased for not wearing the helmet is based on surmises. He would further contend that for loss of consortium, the amount granted by the Tribunal is less. Hence, he sought for enhancement of compensation.

8. Per contra, the leaned counsel for the second respondent would strenuously argue that as per Ex.P.6 and Ex.P8, age of the deceased was rightly taken as 36 years by the Tribunal. He would further contend that non wearing of helmet at the relevant point of time has rightly been pleaded in the counter and the tribunal has also on appreciation of evidence, has fixed 10%

contributory negligence upon the deceased ,strictly in order.

9. P.Wl.2 Senthil Kumar is an ocular witness. No question is posed during the cross examination of P.W.2, even, if it is made clear that the deceased did not wear helmet at the relevant point of time, it could be taken as violation of relevant provisions of the Motor Vehicle Act, 1988. The cross examination of P.W.2, does not ,support the case of the insurance company to the effect that the rider of the two wheeler was at fault. In such circumstances, fixing of contributory negligence at 10% upon the deceased has to be interfered with and the said finding of the Tribunal is hereby set aside.

10. As regards the age of the deceased, driving license of the deceased is Ex.P.6 and Post Mortem Certificate is Ex.P.8. As per the Driving License ,date of birth of the deceased is 4.5.1985. As per the post mortem certificate is Ex.P.8, age of the deceased is mentioned as 34 years . By relying upon the aforesa