N.K. Patil J,

1. These two appeals by the insurer and the claimants are directed against the same impugned judgment and award dated 20.06.2006 passed in MVC No.5451/2002 on the file of the XI Addl. Judge, Court of Small Causes, Member, MACT, Metropolitan Area, Bangalore (SCCH No.12) (hereinafter referred to as ‘Tribunal’ for short).

2. The Tribunal by its impugned judgment and award has awarded Rs.16,81,180/- with interest at 6% p.a. from the date of the petition till realization, as against the claim of the claimants for a sum of Rs.1,00,00,000/- on account of the death of the deceased Shri.R.S. Prasad in the road traffic accident.

3. The insurer claimed that though the Tribunal has discussed in the body of the judgment regarding the contributory negligence on the part of the deceased at 25%, it has awarded compensation to the claimants without deducting any amount towards contributory negligence on the part of the deceased. The insurer has further contended that quantum of compensation awarded to the claimants is also on the higher side and has to be reduced substantially and hence, felt necessitated to file the appeal-MFA 10863/2006.

4. The claimants contending that the contributory negligence fixed on the deceased is on the higher side and that the compensation awarded to them is on the lower side, felt necessitated to file the appeal-MFA 11809/2006.

5. The brief facts of the case are as follows:

Claimant No.1 is the wife of the deceased and claimants 2 and 3 are the parents of the deceased. They filed claim petition before the Tribunal under Section 166 of the M.V.Act on account of the death of the deceased in the road traffic accident that occurred on 29/30-10.2002 at about 1.30 a.m. when the deceased after finishing his usual work left the office at late night in his car bearing No.KA-03/P-3083, driving carefully and slowly on Bangalore-Chennai NH4. When he reached near Abbaiah Garden, on the said road, a truck-trailer (HTV) bearing Regn.No.KA-01/B-1449 was parked in the middle of the road with a full load of steel/iron rods used in fabrication of beams protruding outside the body of the vehicle, unattended without any signals, signs or indications to warn or to caution the other road users. It was pitch dark at the place of accident and there was no proper visible lights on the road. As the deceased could not sight the same, he went and dashed against the said tractor-trailer from its behind. Due to the impact, the car was extensively damaged. The deceased sustained fatal injuries and died at the spot. The claimants further contended that the deceased was aged about 35 years, working as a Development Officer in LIC, drawing salary of Rs.30,836/-p.m. plus incentives. The deceased was the sole bread winner in the family. On account of the untimely death of the deceased the first claimant, wife of deceased, has lost her life partner at the young age and claimants 2 and 3, parents, have lost the love and affection of their son, security, future hopes and aspirations in life. The Tribunal taking into consideration all these factors, perusing the oral and documentary evidence and other material on record, awarded compensation of Rs.16,81,180/-with interest at 6% p.a. from the date of the petition till realization. Both the insurer and the claimants, not being satisfied with the judgment and award of the Tribunal felt necessitated to file the instant appeals, as stated supra.

6. The learned counsel for the insurer, at the outset, submitted that the Tribunal has committed a grave error in not fixing the contributory negligence on the part of the deceased. As a matter of fact, as per the recitals in the sketch and mahazar, it discloses that the offending vehicle had been parked properly on the left side of the road from the middle line marking. That indicated it was parked towards the left side of the road at about 4 ft. on account of the rash and negligent driving of the car by the deceased without properly mak