PUSHPAL Vs. A V SHIVASUBRAMANIAM

JUDGEMENT

(1.) THE appeal is preferred by the claimants against the Judgment and Decree dated 29.10.2007 made in M.C.O.P. No.200 of 2006 on the file of the Motor Accident Claims Tribunal, Principal Sub-Court at Gobichettipalayam, Erode District.

(2.) THE background facts in a nutshell, are, as follows:- On 06.01.2006 at about 10.30 a.m. the deceased Shanmugam was riding a TVS 50 moped bearing Registration No.TN-33-U-7781 in Covai to Perundurai NH 47 main road from west to east. When he was nearing Kankayampalayam pirivu road, at that time, a car bearing Registration No.TN-36-Q-2930, belonging to the first respondent herein, driven by its driver, namely the second respondent herein, in a rash and negligent manner, in a high speed from east to west and suddenly hit the moped. Due to the said impact, the deceased with moped was thrown away on the road and sustained severe injuries on head, leg and all over the body and died on the spot. THE claimants are the wife, son, daughter and mother of the deceased. THEy claimed a sum of Rs.10,00,000/- as compensation before the Tribunal. THE said car was insured with the third respondent-Insurance Company, who resisted the claim. On pleadings, the Tribunal framed the following issues:- "1. Who is responsible for the accident" 2. Whether the claimants are entitled to any claim" If so, the quantum of compensation"" After considering the oral and documentary evidence, the Tribunal held that the accident had occurred only due to the rider of the two wheeler/deceased fault and fixed the percentage of his negligence at 50% and that of the car at 50% as contributory negligence and awarded a compensation of Rs.1,97,500/- with interest at 7.5% per annum from the date of petition and the details of the same are as under:- Loss of income to the family Rs.3,36,000/- Less:-50% contributory negligence Rs.1,48,000/- ------------------ Total...Rs.1,88,000/- Funeral expensesRs. 2,000/- Loss of consortiumRs. 5,000/- Loss of estateRs. 2,500/- ------------------ Grand Total...Rs.1,97,500/- ------------------ It is pertinent to note that the Tribunal ought to have deducted 50% contributory negligence at Rs.1,68,000/-. But, by mistake deducted a sum of Rs.1,48,000/- and wrongly taken the balance sum of Rs.1,88,000/- as loss of income to the family. Aggrieved by that award, the claimants have filed the present appeal for enhancement.

(3.) HEARD the learned counsel on either side. On the side of the claimants, P.Ws.1 to 4 were examined and documents Exs.P.1 to P.11 were marked. On the side of the respondents, R.W.1 " Rajendran, who is the Officer from the Insurance Company was examined and the copy of the Insurance policy of the car (TN-36-Q-2930) was marked as R.1. P.W.1 is the wife of the deceased. P.W.2 Manickam is an eye witness to the occurrence. P.W.3 Thangavel is the employer of the deceased. P.W.4 Rasu is the Panchayat President. Ex.P.1 is the copy of the First Information Report. Ex.P.2 is the copy of Post-mortem certificate. Ex.P.3 is the copy of rough sketch. Ex.P.4 is the copy of Motor Vehicle Inspector's report (car). Ex.P.5 is the original copy of Motor Vehicle Inspector's report (TVS 50). Ex.P.6 is the copy of Charge sheet. Ex.P.7 is the copy of death certificate. Ex.P.8 is the copy legal heir certificate. Ex.P.9 is the copy of ration card. Ex.P.10 is the copy of receipt. Ex.P.11 is the copy of Identity card. It is pertinent to note that in the evidence of P.W.2, who is an eye witness to the accident, has stated that only the driver of the car caused the accident. Ex.P.1 is the First Information Report, in which it is clearly stated that only the driver of the car caused the accident. Ex.P.3, rough sketch and Ex.P.6, charge sheet also prove the same. The only dispute in the present case is whether the rider of the two wheeler/deceased had possessed a valid driving licence at the time of accident or not. The evidence of R.W.1 show that the rider of the two wheeler did not possess the driving licence to ride the said two wheeler. After considering the above oral and documentary evidence, the Tribunal had given a categorical finding that the accident had occurred only due to the rider of the two wheeler/deceased fault and fixed the percentage of his negligence at 50% and that of the driver of the car at 50% towards contributory negligence. The finding is based on valid materials and evidence and the same is confirmed.