IMPORTANT POINT
Death in motor accident – Contributory Negligence – On an allegation simpliciter, contributory negligence cannot be presumed.

ORDER :

1. Leave Granted

2. The present appeals are directed against the Judgment and Order dated 1st October 2020, passed in MFA No. 2162 of 2018 C/W MFA No. 4016 of 2018 by the High Court of Karnataka at Bengaluru, which in turn, was preferred against the judgment and order dated 12th December 2017 in M.V.C No. 3858/2016 passed by the IX Additional Small Causes and Addl. MACT, Bangalore (SCCH-7).

3. The brief facts giving rise to these appeals are that on 6th June 2016 the deceased, namely, Boobalan, aged 38 years, was travelling on his motorcycle from Krupanidhi Junction towards Madivala. The driver of the BMTC Bus (offending vehicle) bearing registration No. KA-01/F-9555 collided with the de- ceased, driving his vehicle in a rash and negligent manner, re- sulting in his death on the spot due to the grievous injuries sustained.

4. The Appellants (dependents of the deceased) filed a claim petition before the Tribunal seeking compensation of Rs. 3,00,00,000/- submitting therein that the deceased was the only earning member of the family, working as an Executive in the Housekeeping Department at Hotel Royal Orchid, Old Air- port Road, Bengaluru and earning upto Rs. 70,000/- per month.

5. The Tribunal, by its Order dated 12th December 2017, after considering the last drawn salary of the deceased as Rs. 62,725/- per month, awarded the Appellants an amount of Rs. 75,97,060/- along with interest @ 9% per annum and held that the accident occurred due to rash and negligent act of the driver of the BMTC Bus.

6. Being aggrieved with the amount of compensation awarded, both parties filed an appeal before the High Court. The appellant challenged the same on the ground that the Tribunal incorrectly determined the monthly income of the deceased as Rs. 62,725/- per month, whereas the proven income as per the bank statement (Ex.P.21) should be assessed at Rs. 70,000/- per month. On the other hand, the respondent challenged the assessment on the ground that there was no negligence on the part of the driver of the bus; instead of considering the notional income wrongly considered the income to the tune of Rs. 62,725/- as the deceased was not a permanent employee and the interest @ 9% was excessive.

7. The High Court, vide the impugned order dated 1st October 2020, allowed the appeal and determined the contributory negligence at 75% on the driver of the bus and 25% on the deceased by relying upon the statements and documentary evidence on record and came to the conclusion that the accident occurred due to the rash and negligent driving of both the deceased and the driver of the offending vehicle as both were driving at high speed and further assessed the monthly income of the deceased as Rs. 50,000/- per month and awarded an enhanced amount of Rs. 77,50,000/- @ 6% interest per annum.

8. Yet dissatisfied, the claimant-appellant is now before us. The significant point raised by the appellant is that the High Court wrongly assessed contributory negligence of the deceased to the extent of 25%.

9. We have heard the learned counsel for the parties.

10. We are unable to agree with the view taken by the High Court on the 25% contributory negligence of the deceased and 75% upon the driver of the bus. We find ourselves to agree with the view taken by the Tribunal on this issue. The Tribunal rightly, after considering the evidence on record and on perusal of the Ex.P3 Spot Mahazar, came to the conclusion that there wasn’t any sufficient evidence on record, indicating that the accident occurred due to negligent driving on the part of the de- ceased, and after considering the oral evidence of PW-1, held the cause of the accident to be rash and negligent on the part only of the offending vehicle.

11. Thus, in our considered v