The court established that the deceased did not contribute to the negligence and upheld the calculation of loss of dependency for compensation.

( 1 ) THE owner and insurer of the motor vehicle involved in the accident have preferred this appeal under section 173 (1) of the Motor Vehicles act, 1988 (for short 'the Act') calling in question the judgment and award dated 14. 9. 2001 passed in M. V. C. No. 411 of 2000 on the file of the Addl. Civil Judge (Sr. D) Addl. M. A. C. T. , Hubli (for short 'the M. A. C. T. ' ).

( 2 ) THE facts of the case in brief are: on 1. 1. 2000, one Mahaveerappa Prathamashetty was travelling on the top of the bus belonging to the appellants along with his goods being tin sheets. When the bus reached K. E. B. Pole No. GDR 16 on hubli-Gadag Road, the driver of the bus applied brakes suddenly and the deceased fell down from the top of the bus and died instantaneously. The legal representatives of the deceased being the widow and the minor son, dependent on the income of the deceased, instituted a claim petition in m. V. C. No. 411 of 2000 seeking compensation.

( 3 ) THE appellants, on being notified by the M. A. C. T. , have appeared through their counsel and filed their objections denying the claim. The appellants, the respondents in the claim petition took a specific contention that the deceased was travelling on the roof of the bus without any permission of the conductor or the driver and also without a ticket and that the deceased was solely responsible for his death. On the basis of the pleadings of the parties, the m. A. C. T. framed the following issues: (1) Whether the petitioner prove that the accident in question has taken place on 1. 1. 2000 at about 15. 45 hours on gadag-Hubli Road near K. E. B. pole due to rash, negligent and speed driving of the K. S. R. T. C. bus as pleaded in the petition? (2) Whether the petitioner prove that deceased Mahaveerappa was travelling on the top of the K. S. R. T. C. bus bearing no. KA 25-F 863 with permission of driver and conductor of said bus and due to the sudden application of brakes by the driver of bus Mahaveerappa fell down on the kacha road as a result he sustained severe injuries and died as pleaded in the petition? (3) Whether respondent prove that the deceased was travelling by bus sitting on the roof of bus illegally and unau thorisedly without permission and without ticket and became himself the root cause for accident and he himself contributed for his accident and death as alleged in the objection? (4) Whether the petitioner is entitled to any compensation? If so, what amount and from whom? (5) What order?

( 4 ) THE claimant No. 1 examined herself as PW 1 and also examined another witness as PW 2 and marked 11 documents as exhs. P-l to P-l 1. The respondent examined the driver of the bus as RW 1 and did not exhibit any documents. The M. A. C. T. after having considered the oral and documentary evidence placed before it, answered issue Nos. 1 and 2 in the affirmative and issue No. 3 in the negative and awarded total compensation of Rs. 3,73,000 together with interest at 9 per cent per annum from the date of petition till realisation. Being aggrieved by the said judgment and award, the appellants have preferred this appeal.

( 5 ) LEARNED counsel for the appellants contended that the deceased, on his own, was travelling on the top of the bus without the permission of the conductor or the driver and, therefore, was responsible for his own death. Finding of the M. A. C. T. to the contrary, is contended, to be perverse. Learned counsel further sought to contend that there was no evidence to substantiate negligence on the part of the driver of the bus in applying the brakes, therefore, it would in the least amount to contributory negligence on the part of the deceased, which aspect of the matter was not considered by the M. A. C. T. In addition, the learned counsel contends that there was no evidence oral or documentary to establish that the deceased was earning a sum of rs. 3,000 p. m. from running a kirana shop and fixing of income of the deceased at rs. 3,000 by the M. A