The main legal point established in the judgment is that contributory negligence must be supported by evidence, and compensation should be based on the injuries sustained and treatment taken by the claimant.

JUDGMENT

S G Pandit, J. - The claimant is before this Court not being satisfied with the quantum of compensation awarded and aggrieved by saddling of 30% negligence on the claimant under the judgment and award dated 13.09.2011 in MVC No.118/2010 on the file of the Fast Track Court-III, Dharwad and praying for enhancement of compensation.

2. The claim petition was filed under Section 166 of the Motor Vehicles Act claiming compensation for the injuries sustained by the claimant in a road traffic accident. It is stated that on 04.08.2009 when the claimant was traveling as passenger in a bus bearing No.KA-25/D-66 and after alighting from the bus the claimant was proceeding and the driver of the bus drove the same in a rash and negligent manner and dashed against the claimant. Immediately he was taken to the District Hospital, Dharwad and he was inpatient for one moth. It is stated that the claimant was doing centering work and was earning Rs.6,000/- p.m. He was aged about 44 years as on the date of the accident.

3. On issuance of notice, respondent No.1 failed to appear before the Tribunal and he was placed exparte. Respondent No.2 insurer filed its objection and denied petition averments. Respondent no.2 also denied rash and negligent driving of the bus driver and also contended that the driver of the vehicle was not holding driving license as on the date of the accident.

4. The claimant examined himself as PW.1 and also examined PW.2 doctor apart from marking Exs.P.1 to P.10. Respondent-Insurance Company marked Ex.R.1 insurance policy.

5. The Tribunal on careful scrutiny of the material on record, awarded total compensation of Rs.77,980/- and saddled contributory negligence to an extent of 30% on the claimant. The claimant aggrieved by saddling of 30% contributory negligence and praying for enhancement of compensation is before this Court in this appeal.

6. Heard the learned counsel for the appellant and the learned counsel for the respondent and perused the material on record.

7. The learned counsel for the appellant would submit that the Tribunal committed grave error in saddling 30% of contributory negligence on the claimant in the absence of examining the driver of the bus. The respondent-Insurance Company failed to prove the negligence on the part of the claimant and in that circumstances, the Tribunal ought not to have saddled 30% contributory negligence on the claimant. It is his submission that the accident occurred solely due to the negligence of the driver of the bus who ought to have moved the bus carefully after alighting the passengers. Thus, he prays for setting aside that portion of the judgment by which the Tribunal saddled 30% contributory negligence.

8. Further, the learned counsel submitted that the compensation awarded by the Tribunal is on the lower side and prays for enhancement of compensation. It is his submission that the Tribunal erroneously assessed the income of the claimant at Rs.3,000/- p.m. which needs to be enhanced. It is further submitted that the compensation awarded on the other heads are also on the lower side. According to him, the Tribunal has assessed the whole body disability at 10% which is proper and correct. Thus, he prays for allowing the appeal.

9. Per contra, the learned counsel for the Insurance Company would submit that the Tribunal has rightly saddled 30% contributory negligence on the claimant. It is submitted that after alighting from the bus the claimant ought to have walked on the Kachha road but instead of that he proceeded to walk on the tar road which resulted in the accident. Further, the learned counsel submits that there is no material to establish the income of the claimant. Therefore, the Tribunal has rightly assessed the notional income at Rs.3,000/- p.m. which also needs no interference. Learned counsel further submits that the Tribunal has erroneously assessed the whole body disability of the claimant at 10%. According to him there is no material whatsoever to come