Non-possession of a driving licence by a deceased victim does not constitute contributory negligence in motor accident claims unless evidence demonstrates the victim actually contributed to the cause of the accident. Liability rests upon the proven negligence of the offending driver.

[Judgment of the Court was delivered by C.V. KARTHIKEYAN, J.

This appeal has been filed by the claimants challenging the contributory negligence fixed on the deceased and also seeking enhancement of compensation awarded by the Motor Accident Claims Tribunal, Chennai (in the II Court of Small Causes, Chennai) in M.A.C.T.O.P.No.1477 of

2022 by the award dated 29.01.2024.

2. It is the case of the appellants/claimants that they are the dependents of the deceased Srinivasan, who died in the accident that took place on 20.03.2022 at about 12.10 hours. According to the claimants, the deceased was riding a motorcycle bearing Registration No.TN 06 AA 6530 on Adyar Club Gate road from north to south and when he turned towards east to Boat Club first Avenue Road, a lorry bearing Registration No.TN 02 3699 came in a rash and negligent manner and hit against the deceased due to which the deceased sustained multiple injuries and died on the same day. Claiming that driver of the lorry alone is responsible for the accident and the 1st respondent being the owner and the 2nd respondent being the insurer alone are liable to pay the compensation, the claimants filed the above claim petition.

3. The second respondent Insurance Company resisted the claim on the ground that the accident had occurred only due to the negligence on the part of the deceased himself and that apart, the deceased was not having valid driving licence as on the date of the accident and hence, the second respondent is not liable to pay the compensation.

4. Before the Tribunal, on the side of the claimants, PWs 1 and 2 were examined and Exs.P1 to P17 were marked. On the side of the second Respondent, no oral evidence was adduced and no documents were marked.

5. The Tribunal, on appreciation of materials and evidence, held that the accident had occurred due to the rash and negligent act of the driver of the 1st respondent lorry bearing Registration No.TN-02-3699. Though the tribunal has come to the conclusion that the accident is the result of rash and negligent act of the first respondent lorry, the Tribunal held that 10% contributory negligence has to be fixed on the deceased as the deceased was not in possession of valid driving licence. The Tribunal relied on the judgment in Sarla Verma Vs. Delhi Transport Corporation reported in 2009 (2) TANMAC 1 (S.C) and held that the second claimant who is the father of the deceased is not a dependent to the deceased and directed the first respondent being the owner of the lorry and second respondent being the insurer of the lorry to pay the compensation to claimants 1 and 3 subject to deduction of 10% towards contributory negligence on the part of the deceased. Aggrieved by the fixation of 10% contributory negligence on the part of the deceased and also the quantum of compensation awarded under the other heads, the claimants have filed the present appeal.

6. Heard learned counsel for the appellants/claimants and learned counsel for the second respondent insurance company.

7. The learned counsel for the appellants/claimants would submit that a case has been registered against the driver of the lorry and First Information Report has also been marked as Ex.P9 and the Tribunal, on the basis of the aforesaid document, found that the accident had occurred only due to the rash and negligent driving of the lorry, but however erroneously fixed 10% contributory negligence on the part of the deceased. The learned counsel also submits that the compensation awarded under the other heads also needs enhancement.

8. The learned counsel appearing for the 2nd respondent Insurance Company submitted that the accident had occurred only due to th