NEW INDIA ASSURANCE COMPANY LTD Vs. DHANALAKSHMI

JUDGEMENT

(1.) The appeal has been preferred by the Insurance Company against the fixing of liability and also the quantum of Rs.17,02,000/- awarded to the claimants for the death of one M.Sasikumar, aged about 23 years, who is a self employed contractor, earning about Rs.15,000/- per month, in the accident which occurred on 28.07.2008 at 03.15 P.M, when he was driving a two wheeler along with his newly married wife, which hit against the stationary lorry parked on the road.

(2.) Mr.G.Udhaya Sankar, learned counsel appearing on behalf of the appellant would submit that Ex.P.1/FIR itself would prove that the deceased alone was responsible for the accident, as he drove the two wheeler and hit against the stationary lorry insured with the appellant insurance company. Therefore, no negligence can fixed on the part of the driver of the lorry and it is the deceased who was the tort-feaser and therefore, the learned counsel appearing on behalf of the appellant seeks to set aside the award passed by the Tribunal.

(3.) On the other hand, Mr.M.Sivakumar, learned counsel representing on behalf of Mr.C.Prabakaran, learned counsel for the claimants would submit that the lorry was parked on the road side without following the rules and the parking lights were not switched on and therefore, the Tribunal rightly found that the accident occurred only because the lorry was parked on the road side without following the rules and regulations. Moreover, 25% negligence has been fixed on the deceased as he was not wearing helmet. The learned counsel would further submit that the evidence of P.W.2 would categorically prove that the deceased was wearing helmet and therefore 25% contributory negligence slapped on the deceased has to be set aside.