Contributory negligence must be established with evidence; mere assumptions are insufficient to negate liability. Compensation modified based on medical evidence and disability assessment.

JUDGMENT :

C M JOSHI, J.

Heard the learned counsel Sri O. Mahesh, appearing for appellant, Insurance Company in MFA No.2413/2014. None has appeared on behalf of respondents and appellant/petitioner in MFA No.3387/2014.

2. Being aggrieved by the judgment and award in MVC No.819/2011 dated 24.10.2013 passed by the Principal Senior Civil Judge and MACT-IV, Davangere, the Insurance Company is before this Court in MFA No.2413/2014 seeking to set aside the same and the petitioner is before this Court in MFA No.3387/2014 seeking enhancement of compensation.

3. The factual matrix of the case is that, when on 19.01.2011 the petitioner along with his wife was going on a motorcycle bearing No.KA.20.EC 7278 on Honnali- Nyamathi road, at about 3.00 p.m., the Tata Ace vehicle bearing No.KA.17.A.9594 came from opposite direction in a rash and negligent manner and dashed to the motorcycle, resulting in both the petitioner and his wife falling down and sustaining injuries. They were taken to Government Hospital, Honnali. Thereafter, the petitioner was shifted to C.G. Hospital, Davangere, where the petitioner was inpatient from 19.01.2011 to 15.2.2011. Contending that the petitioner had sustained the fracture of left femur, which has resulted in a disability, he claimed compensation from the owner and insurer of the Tata Ace vehicle. The petitioner has also contended that he was working as coolie and earning Rs.10,000/- per month and aged about 23 years and he has suffered permanent disability.

4. On being served with the notice, respondent Nos.1 to 3 appeared before the Tribunal. Respondent Nos.1 and 2 did not file any written statement. Respondent No.3, Insurance Company filed written statement denying petition averments. It was alleged that the compensation claimed is highly exorbitant, imaginary and untenable in law. The Insurance Company also contended that the terms and conditions of the policy were violated and therefore, it is not liable to pay the compensation to the petitioner. It was also alleged that petitioner was riding the motorcycle without following the traffic rules and therefore, there was negligence on the part of the petitioner also.

5. On the basis of the above pleadings, the Tribunal has framed appropriate issues. The petitioner was examined as PW1. The Doctor who assessed the disability was examined as PW2 and Exhibits P1 to P10 were marked in the evidence. Respondent No.3 examined its Legal Officer as RW1 and the ARTO as RW2 and exhibits R1 to R4 were marked in the evidence.

6. After hearing the arguments, the Tribunal awarded the compensation of Rs.69,000/- under the following heads:

7. Being aggrieved by the same, both the Insurance Company and the petitioner are before this Court in these appeals.

8. On being served with the notices, the rival parties have appeared before this Court, except respondent Nos. 1 and 2 who are the driver and owner of the Tata Ace vehicle.

9. The learned counsel Sri O. Mahesh, appe