The main legal point established in the judgment is the rejection of contributory negligence and the recalculated notional income to determine the enhanced compensation.

JUDGMENT :

Hanchate Sanjeev Kumar, J.

1. This appeal is filed under Sec. -173(1) of the Motor Vehicles Act, by the appellants-claimants, challenging the judgment and award dtd. 21/12/2011, passed in MVC No. 716/2010, on the file of Fast Track And Additional MACT (11) at Bhadravathi, seeking enhancement.

Brief facts:

2. The appellants - claimants are the father and mother of deceased Raju @ Shivaraju. That on 19/2/2010 at about 4.45 p.m., the deceased Rau was pushing his bike by walking on left side of Anavatti to Shivamogga road near Veeranna Benavalli Cross. At that time, first respondent came driving the bus bearing registration No. KA.15.A.1371, from Shivamogga side in a rash and negligent manner with high speed and dashed against deceased Raju. Due to the impact, Raju sustained grievous injuries on his head and other parts of his body and he died on the way to the hospital.

3. Hence, a claim petition was filed by the appellants-claimants under Sec. -166 of the M.V. Act, claiming compensation. The deceased was a Contract Labour in H.T.S. Department, V.I.S.P. Bhadravathi and earning Rs.7,000.00 per month. The appellants, who are the parents were depending upon the earning of the deceased. The Tribunal on appreciating the materials on record, allowed the petition in part, and awarded a compensation of Rs.2,20,500.00.00.00, along with interest at 6% per annum from the date of petition till realization. The Tribunal held respondent Nos.2 and 3 therein, jointly and severally liable to pay the compensation.

4. The learned counsel appearing for the appellants-claimants submitted that the Tribunal has committed an error in holding that the bus driver was negligent of 70% and the deceased was negligent of 30% by applying contributory negligence. The spot sketch produced at Exhibit-R3, shows that the accident has occurred on the right side of the road from Shivamogga to Sagar. The Motor cycle was coming from Sagar to Shivamogga. Therefore, the bus driver had come to the extreme right side of the road and hit motor cycle, which can be clearly seen in the spot sketch. Further, the Police have filed a charge-sheet against the driver of the offending bus, that fortified the appellants-claimants' case. Therefore, the learned counsel submitted that applying contributory negligence is not correct.

5. Further, the learned counsel for the appellant submitted that the compensation awarded by the Tribunal under the various heads is not sufficient. Therefore, prays to enhance the compensation on various heads.

6. On the other hand, the learned counsel appearing for respondent No. 3 - insurance company Sri.K.Lakshmi Narasappa vehemently contended that the deceased, who was the rider of the motor cycle, was riding along with two pillion riders on the motor cycle and he was unable to control the motor cycle. Therefore, the accident has taken place. In this regard, the Tribunal has correctly assessed the contributory negligence on the part of the deceased also at 30%. Therefore, prays to confirm the judgment and award of the Tribunal. Further, submitted that the accident has taken place on middle of the Road as can be seen in the spot sketch at Exhibit-R3. Therefore, the Tribunal has rightly observed and held that there is a contributory negligence on the part of the deceased. Further, submitted that the compensation awarded by the Tribunal under various heads are sufficient. Hence, there is no need to enhance the compensation amount. Therefore, prays to dismiss the appeal.

7. The compensation awarded by the Tribunal under various heads are as follows.

8. Heard the learned counsels and perused the material on record.

9. The Tribunal has held that the bus driver was 70% negligent and the rider of the motor cycle was 30% negligent and therefore the theory of contributory negligence is applicable. Upon perusing Exhibit-R3, a copy of the spot sketch produced, it is seen that the bus was moving from Shivammogga to Sagara and motor cycle was proceeding from Sagara t