Attribution of contributory negligence requires evidence, and loss of dependency should be re-evaluated based on the deceased's earning capacity.

JUDGMENT

P.S.Dinesh Kumar, J. - This appealis presented by the claimants challenging the judgment and award dated 01.04.2016 in M.V.C.No.2452/2014 on the file of VI Addl. Dist. and Sessions Judge and Addl. MACT, Belagavi, seeking enhancement and the aspect of contributory negligence attributed to the deceased.

2. Heard Shri H.D.Patil, for appellants and Shri Shivakumar S.Badawadagi, for the NWKRTC.

3. Briefly stated the facts of the case are, one Shivappa was riding his motorcycle bearing registration No.KA-24/L-3587 on 26.08.2013 on Sogal-Murgod road. A bus belonging to the State Road Transport Corporation bearing registration No.KA-22/F-1719 dashed against the motorcycle. Shivappa sustained grievous injuries and died. Shivappa s dependants have presented the instant claim petition. Tribunal, on consideration of material on record has awarded a compensation of Rs.6,18,000/-. It has also held that there was contributory negligence on the part of the deceased and accordingly, reduced 1/3rd compensation. Hence, this appeal.

4. Shri H.D.Patil, for claimants submitted that the Tribunal has erred in considering the earning capacity of the deceased as Rs.6,500/- per month. He further submitted that Tribunal, without any evidence on record has attributed contributory negligence to the deceased and the same is unsustainable in law.

5. Shri Shivakumar S. Badawadagi, for NWKRTC argued opposing the appeal.

6. Undisputed facts of the case are, Shivappa died in the road traffic accident which occurred on 26.08.2013. He was aged 19 years. Liability is admitted by the Corporation and it has satisfied the award passed by the Tribunal.

7. While computing the loss of dependency, Tribunal has considered the notionalincome of deceased as Rs.6,500/- per month. In the absence of any evidence, this Court has considered the notionalincome of an able bodied person in the year 2103, as Rs.7,000/- per month. An amount equivalent to 40% of the earning capacity ( i.e., Rs.2,800/-) will have to be added as future prospects. Thus, the earning capacity works out to Rs.9,800/- per month. The deceased was a bachelor. Therefore, 50% will have to be deducted from his earnings. Claimant was aged 19 years and therefore, the applicable multiplier is 18. Claimants 1 and 2 are parents. They shall be entitled for filial consortium of Rs.40,000/- each. Third claimant is brother of deceased and he shall also be entitled for Rs.40,000/- towards consortium. In addition, claimants shall be entitled to Rs.30,000/- under conventional heads.

8. So far as contributory negligence is concerned, records disclose that no evidence was let in on behalf of the Corporation. Learned advocate for the claimants is also right in his submission that no issue has been framed on that aspect. Therefore, Tribunalis not right in attributing 1/3rd contributory negligence on the deceased.

9. Hence, compensation is recomputed as follows:

10. Hence, the following:

ORDER

i ) Appeal filed by the claimants is allowed in part holding that claimants shall be entitled for additional compensation of Rs.5,90,400/-.

ii) The Corporation is directed to deposit the enhanced compensation with interest @ 6% p.a. from the date of petition till the date of deposit within six weeks from the date of receipt of a copy of this judgment, in the Tribunal for disbursement in accordance with law;

iii ) No costs.