Negligence in motor accident cases is established primarily by evidence; contributory negligence must be substantiated. Enhanced compensation granted based on established income and future prospects as per judicial guidelines.

JUDGMENT

Gaurang Kanth, J. The present appeal has been preferred by the Appellant under Section 173 of the Motor Vehicles Act, 1988 against the Award dated 12.12.2013 ("impugned Award") passed by the Court of learned Presiding Officer, Motor Accident Claims Tribunal, Dwarka Courts, Delhi in MACP No. 126/2012.

2. By way of the impugned Award dated 12.12.2013 the learned Claims Tribunal Awarded a compensation of Rs.9,79,272/- with interest @ 7.5 % per annum from the date of filing of the claim petition till realization of the amount and directed the Insurance Company to deposit the entire awarded amount before the learned Claims Tribunal within a period of one month.

SUBMISSION OF THE APPELLANT

3. Mr. Pankaj Seth, learned counsel for the Appellant contended that learned Claims Tribunal erred in observing that the alleged incident took place due to negligent driving of the offending vehicle. He further contended that it is a settled law that when two vehicles are involved in an accident then the act has to be treated as contributory negligence. He further contended that in terms of dicta of Hon'ble Supreme Court in National Insurance Co. Ltd. Vs Pranay Sethi & Ors. reported as (2017)16 SCC 680, compensation under the head `Future Prospects' is to be paid by adding 40% of the assessed income of the deceased. Learned counsel fairly concedes that multiplier should be adopted in terms of dicta laid down in case of Sarla Verma & Ors. Vs DTC & Anr. reported as (2009)6 SCC 121 which is upheld in the judgment of Pranay Sethi (Supra) case.

SUBMISSION OF THE RESPONDENT

4. Mr. S. N. Parashar, Advocate learned counsel appearing on behalf of the respondent/claimant while placing reliance on Pranay Sethi (supra) contended that compensation under the `Loss of Consortium', `Loss of Estate' and `Loss of Funeral Expenses' needs to be modified/enhanced. Learned counsel fairly concedes that in terms of judgment of Pranay Sethi (Supra), compensation under the head `Love and Affection', has to be deducted.

REBUTTAL ARGUMENTS

5. Mr. Pankaj Seth, learned counsel for the appellant in rebuttal contended that the respondent/claimant is not entitled for any enhancement in compensation as the respondent/claimant has neither challenged the impugned order by way of an appeal nor preferred any cross objection to the present appeal.

LEGAL ANALYSIS

6. Brief facts of the case as noted by learned Claims Tribunal are as under:

"...on 21/4/2012 at about 1.00 PM, Sachin Kumar (hereinafter the deceased) was pillion on motorcycle bearing no. UP-14BD-1158 being driven by his friend Imran Ali at a normal speed on correct side of the road when the motorcycle was hit by the offending vehicle from behind near GT road in front of PVR Oplent Mall, Chowki Nehru Nagar, PS Sihani Gate, Distt. Gaziabad being driven by R1 with fast speed in rash & negligent manner without blowing any horn in the contravention of the traffic rules & regulations. As a result thereof both the riders fell down along with motorcycle and sustained grievous injuries. Both the victims were taken to Yashoda hospital, Nehru Nagar, Gaziabad where the victim Sachin was declared as `brought dead' by the Doctors on duty..."

7. Mr. Pankaj Seth, learned counsel for the appellant contended that in an accident where two vehicles are involved, it has to be declared an act of contributory negligence. In this context it is necessary to ascertain the preliminary issue of negligence.

8. The learned Claims Tribunal while deciding the issue of negligence has held as under:

"7. The onus to prove the aforesaid issues was on the petitioner. PW2 Sh. Imran had narrated the sequence of the accident in paragraph two of his affidavit Ex. PW2/A. On being cross examined on behalf of the respondents, he confirmed his driving on the correct side of the road at the speed of 40-30 Kmph whereas the offending vehicle was running at the speed of 65-70 Kmph and hit the motorcycle from behind. He had noted down the number of th