JUDGMENT :

MFA No.202/2015 is filed by the insurance company under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act’, for short) whereas MFA Crob No.50/2015 is filed by the claimants under Order 41 Rule 22 of CPC being aggrieved by the judgment dated 31.10.2014 passed by the Motor Accident Claims Tribunal. Since, both, the appeal and the cross-objection arise out of the same accident as well as a common judgment, they were heard together and are being decided by this common judgment.

2. Facts giving rise to the filing of the appeal and cross objection briefly stated are that on 11.07.2010 at about 12.45 a.m. the deceased Venkatesh was proceeding in a motorcycle bearing registration No.KA-51/K-3533 on B.E.T.L. Elevated Highway. At that time, a tempo bearing registration No.KA-06/A-7811 was parked without any parking light, signal, indicator for parking the vehicle on the elevated highway. The deceased who was proceeding in the motorcycle dashed on the back of the said tempo. As a result of the aforesaid accident, the deceased sustained grievous injuries and succumbed to the injuries on the way to the hospital.

3. The claimants filed a petition under Section 166 of the Act on the ground that the deceased was aged about 29 years at the time of accident and was working at American Power Conversion as Field Service Engineer and was earning Rs.35,000/-per month. The claimants claimed compensation.

4. On service of notice, the respondent No.1 filed written statement in which the averments made in the petition were denied. The age, avocation and income of the claimant and the medical expenses are denied. It was pleaded that the accident was due to the rash and negligent riding of the vehicle by the deceased himself. It was further pleaded that the tempo was parked on the extreme left side of the road and there was lot of space available to the extent of 25 feet to the vehicles and it is the deceased who negligently dashed to the parked tempo on the back side. It was further pleaded that as per the petition version it is head on collusion between 2 vehicles and hence, there is negligence on the part of the rider of the motorcycle, i.e., the deceased. Hence, he sought for dismissal of the petition.

The respondent No.2 did not appear before the Tribunal inspite of service of notice and was placed ex-parte.

5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimants, in order to prove their case, examined claimant No.1 as PW-1, employer of the deceased as PW-2 and one employee of HSBC Bank as PW-3 and got exhibited 27 documents namely Ex.P1 to Ex.P27. On behalf of respondents, official of the Insurance Company was examined as RW-1 and I.O. as RW-2 and got marked the policy as Ex.R1. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident has occurred on account of negligence of the driver of the offending tempo and also the rider of the motorcycle, i.e., deceased at 75% and 25%, respectively. The Tribunal further held that the claimants are entitled to a compensation of Rs.31,32,856/-along with interest at the rate of 6% p.a. and directed the Insurance Company to deposit 75% of the compensation amount along with interest. Being aggrieved, these appeal and cross objection have been filed.

6. The learned counsel for the Insurance Company has raised the following contentions:

Firstly, the accident occurred due to negligence of the rider of the motorcycle, i.e., the deceased himself.

Secondly, the offending vehicle was parked on the side of the road. Even though it is mid night, street light was on and the parking of the tempo was clearly visible to the rider of the motorcycle. Since the deceased was riding the motorcycle at a high speed, he was not maintaining proper distance, he was not wearing helmet and du