This appeal under Section 173(1) of Motor Vehicles

Act, 1988 (hereinafter referred to as ‘the Act’) has been

filed by the Insurance Company being aggrieved by the

judgment dated 30.06.2012 passed by the MACT, Udupi in

MVC No.313/2010.

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Facts giving rise to the filing of the appeal

briefly stated are that on 08.02.2010 the deceased Rajesh

Shanthi, aged 20 years was Purohith by profession was

proceeding on his motor bike towards Padubidri side on

NH-17 and when he reached near Kallapu of Moodabettu

Village, the driver of the Tanker bearing Registration

No.AP-28-U-6147 came from Mangaluru side and that the

driver of the lorry while overtaking another vehicle, had hit

the motor bike. As a result of the aforesaid accident, the

deceased sustained grievous injuries and succumbed to

the injuries.

3.

The claimants filed a petition under Section 166

of the Act seeking compensation for the death of the

deceased along with interest.

4.

On service of summons, the respondent No.2

appeared through counsel and filed written statement in

which the averments made in the petition were denied. It

was pleaded that the petition itself is false and frivolous in

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the eye of law. It was further pleaded that the accident

was due to the rash and negligent riding of the motorcycle

by the deceased himself and he was riding the motor bike

without wearing helmet at the time of the accident. The

driver of the offending vehicle did not possess valid driving

licence as on the date of the accident. The liability is

subject to terms and conditions of the policy. The age,

occupation and income of the deceased are denied. It was

further pleaded that the quantum of compensation claimed

by the claimants is exorbitant. Hence, he sought for

dismissal of the petition.

The respondent No.1 did not appear before the

Tribunal inspite of service of notice and hence was placed

ex-parte.

5.

On the basis of the pleadings of the parties, the

Claims Tribunal framed the issues and thereafter recorded

the evidence. The claimants, in order to prove their case,

examined claimant No.1 as PW-1 and another witness as

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PW-2 and got exhibited documents namely Ex.P1 to Ex.P7

On behalf of respondents, one witness was examined as

RW-1 and got exhibited a document namely Ex.R1. The

Claims Tribunal, by the impugned judgment, inter alia,

held that the accident took place on account of rash and

negligent driving of the offending vehicle by its driver, as a

result of which, the deceased sustained injuries and

succumbed to the injuries. The Tribunal further held that

the

claimants

are

entitled

to

a

compensation

of

Rs.7,47,000/- along with interest at the rate of 6% p.a.

and directed the Insurance Company to deposit the

compensation

amount

along

with

interest.

Being

aggrieved, this appeal has been filed by the Insurance

Company.

6.

The learned counsel for the Insurance Company

has raised the following counter-contentions:

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Firstly, the finding of the Tribunal without considering

sole negligence or contributory negligence on the part of

the deceased is contrary to law and material on record.

Secondly, the Tribunal ought to have seen that PW-2

was not an eyewitness and was only an invented one to

suit the claim and admittedly complaint was lodged by one

Mr.Rajesh and this person was not examined. The Tribunal

further has not considered the fact that deceased was not

an experienced rider and was riding a new un-registered

two wheeler without wearing a safety helmet and was

entering the National High Way from a cross-road.

Thirdly, the Tribunal has not considered the evidence

of driver of the tanker who was examined as RW-1 to

drive home that alleged accident was due to negligence of

the deceased only and filing of charge sheet is not

conclusive proof of negligence.

Fourthly, the accident occurred in the middle of the

road. In the cross-examination of PW-1, he has admitted

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that the accident occurred in the middle of the road. Even

the dri