(Prayer: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988 against the fair and decreetal order dated 07.03.2005 made in M.C.O.P.NO.2176/2002 on the file of the Motor Accident Tribunal, Additional District Judge, FTC No.II, Trichirappalli.)
The unfortunate fatal accident occurred on 02.05.2005 at about 5 a.m. on Trichy Chennai Trunk Road near Vedangur. The death occurred instantaneously on the spot and the mother of the deceased filed a claim petition before the Motor Accident Claims Tribunal, Trichy, claiming compensation. The Tribunal, considering the facts and circumstances of the case, passed an award granting Rs.3,35,000/- as total compensation. Against which, the Insurance Company preferred the present appeal on the ground that the quantum of award granted by the Tribunal is excessive, because the aspect of contributory negligence on the part of the deceased was not fixed by the Tribunal.
2. As per the FIR, the deceased had driven his vehicle behind the lorry and hit back side, which caused the grievous injuries and died instantly. Therefore, the entire negligence is to be fixed on the deceased and therefore, the Insurance Company is to be exonerated from the liability and the liability should be fixed 50% - 50%, and as a contrarily, the Tribunal fixed the liability on the Insurance Company in entirety and therefore, the same is to be set aside.
3. This Court is unable to consider the arguments advanced by the learned counsel for the appellant. The factum of the case is that the lorry was parked in the right side and the warning signals were switched off. So, in the absence of any road indicator, the deceased would not have expected. Under these circumstances, the driver of the lorry also committed the negligence in not using the parking light, especially at the time when the accident took place around 5 a.m. Such being the case, the contributory negligence cannot be fixed on the deceased and the negligence was first committed by the driver of the lorry by not using the parking lights in the lorry. Therefore, this Court is not inclined to consider the grounds raised in the appeal.
4. Accordingly, the award passed by the Tribunal in MCOP No.2176/2002 is confirmed and the Civil Miscellaneous Appeal is dismissed. The learned counsel for the appellant submitted that the entire award amount has been deposited. The first respondent/claimant is permitted to withdraw the same with accrued interest, through RTGS, without filing any necessary application. No costs. Consequently connected Miscellaneous Petition is closed.