IMPORTANT POINT
Negligence in motor vehicle accidents is determined by the preponderance of probabilities, and the burden of proof for contributory negligence lies with the party alleging it. The absence of cogent evidence to establish contributory negligence absolves the claimant of liability.

JUDGMENT/ORDER

ABHAY AHUJA, J. - This Appeal has been filed under Sec. 173 of the Motor Vehicles Act, 1988 (the 'M.V. Act') challenging the judgment and award dtd. 25/7/2017 passed by the Motor Accident Claims Tribunal, Mumbai in Motor Accident Claim Application No.772 of 2013 partly allowing the Application of the Respondent and awarding a sum of Rs.13,50,073.00towards total compensation along with interest at the rate of 8% per annum.

2. Attempts were made by the parties to settle the matter before the Lok Adalat but since there was no final outcome of the settlement, the matter was once again listed for final hearing at the stage of admission.

3. The brief facts are as follows. That on 14/11/2012, the Respondent who was then aged about 28 years, a self-employed person conducting a pan shop from 9:00 pm till late hours of the night, after closing his pan shop was returning home at about 1:00 a.m. on a motor cycle ridden by him, moving from R.H.B. Road, Mulund towards Sanjay Gandhi Nagar and was going along Kalidas Road to go to M.G. Road and had reached beside Chanakya Society, Devidayal Road, when a BEST bus bearing Registration No. MH-01-AP-0694 (the 'Offending Vehicle') came from LBS road side and gave a dash to the Respondent's motorcycle. The Respondent fell down along with motor cycle on the road and sustained fracture injuries to his person. The Respondent was treated in Raj Hospital as an indoor patient from 14/11/2012 to 12/12/2012.

4. The Respondent then preferred an application on 29/4/2013 claiming Rs.25,00,000.00 from the BEST being the employer of the driver along with costs of medical treatment, pain and suffering caused by the accident and interest inter alia on the grounds that he did not recover well from the accidental injuries, and is facing difficulties to continue his business.

5. The Appellant vide its Written Statement filed before the Tribunal denied the claim. The Appellant claimed that the BEST bus was being driven in a proper manner and was going from Vashi to Mulund Bus Depot and that when the bus reached near Mulund station, the Appellant while riding his motorcycle tried to cross the bus from Kalidas road towards MG road at an extremely fast speed in rash and negligent manner and while doing so collided against the left side front portion of the BEST bus. The Appellant claimed that it was due to the Respondent's own negligence that he met with an accident and there was no negligence on the part of the bus driver. The Appellant denied the personal particulars of the Respondent as well as his claim for alleged disability and medical expenses as well as damages claimed on account of other expenses under the respective heads. The Appellant prayed for dismissal of the Respondent's application with costs.

6. The Tribunal examined the FIR, spot panchnama and chargesheet and the evidence being the examination of the Appellant with respect to the issue of negligence. The Tribunal observed that in view of death of the bus driver before he could be examined, it is only the version of the applicant and police papers that are available on record to determine the aspect of negligent driving of the BEST bus. After examining the above, the Tribunal held that it did not appear that the Appellant was attempting to cross the bus to go to the other side of the road. The Tribunal also noted that it was in the FIR that the BEST driver did not provide any assistance to the Appellant after the accident nor did he report the accident to the police, rather he fled from the spot to avoid any liability. The Tribunal concluded that the BEST driver was at fault and responsible for the accident.

7. On the issue of loss of income due to functional disability, the Tribunal, based on available evidence, estimated that the Respondent had an earning of Rs.9000.00 per month. The Tribunal also concluded that the Respondent had suffered 45% loss of income due to functional disability and in the same manner, 45% functional disability had to