Contributory negligence must be substantiated by evidence; the determination of notional income for compensation is governed by legal standards in absence of concrete financial records.

JUDGMENT :

UMESH M. ADIGA, J.

Both these appeals arises out of the judgment and award dated 25.04.2023 passed by the Chief Judge, Court of Small Causes, Member, MACT, Bengaluru (for short 'the Tribunal') in MVC.No.1195/2022.

2. MFA.No.5157/2023 is filed by the insurer challenging the quantum of compensation awarded and MFA.No.6090/2023 is filed by the legal representatives of deceased seeking enhancement of compensation.

3. Both the appeals arises out of common judgment and award, therefore they are taken up together for disposal.

4. Though appeals are slated for admission, with consent of learned advocates appearing for both the sides, they are taken up for final disposal.

5. For the sake of convenience, the parties are referred to as per their rankings before the Tribunal.

6. The brief facts of the case are that on 06.02.2022, at about 08.30 p.m., the deceased Manjunath M, while crossing the temple road from its left side at JL Puram, Mysuru, the rider of the motorcycle bearing registration No. KA-09-EU-0112, rode his vehicle in a rash and negligent manner and hit the said Manjunath. As a consequence, he fell down and sustained grievous injuries. Immediately he was shifted to hospital and while undergoing treatment he succumbed to injuries. The claimants being his wife, son and daughter filed the claim petition seeking compensation.

7. Respondent No.1 was the owner and respondent No.2 was the insurer. Respondent No.2- Insurer denied the petition averments and denied its liability to pay the compensation and also contend that accident occurred due to contributory negligence of the deceased as well as the rider of the motorcycle. Hence, prayed to apportion the liability. With these reasons, they prayed to dismiss the claim petition.

8. The Tribunal recorded the evidence. Claimant examined one witness as PW-1 and got marked Exs-P1 to P20. Respondents have not led any oral or documentary evidence.

9. The Tribunal after hearing the argument on both sides and on appreciating the materials available on record, held that the accident occurred due to contradictory negligence of the deceased as well as rider of the motorcycle in the ratio of 20:80 respectively.

10. The Tribunal awarded the following amount of compensation:

The Tribunal held that out of said amount claimants are entitled 80% of compensation i.e. Rs.17,15,884/-.

11. Being dissatisfied by the said amount of compensation so also, holding that the deceased had contributed to the accident in question, claimants have preferred this appeal. The learned counsel for the claimants contended that the place of accident is not a main road. The deceased had crossed major portion of the road and before he could cross the complete road, rider of the motorcycle hit against him and caused the injuries. There was no negligence of the deceased to cause accident. The Tribunal has not considered these facts properly and erroneously considered the facts of the case and said that the deceased contributed to an extent 20% for causing of the accident.

12. The learned counsel for insurer contends that the Tribunal in its judgment discussed in detail about the said fact and also relied on the judgment of Koosappa Poojary vs. K.Sadabba and others , ILR 2013 KAR 1104, and held that deceased who was crossing the road unmindfully in a place where it was not demarcated for crossing the road, led to a conclusion that accident occurred due to negligence of the person who crossed the road unmindfully. The Tribunal has properly applied its mind and considered the same and it doesn't call for any interference.

13. Undisputedly place of accident i