Contributory negligence cannot be established solely by the absence of a valid driving license; evidence of fault is required. Notional income can be adjusted based on prevailing circumstances.

JUDGMENT :

S.SOUNTHAR, J.

The Civil Miscellaneous Appeal is filed challenging the award passed by the Motor Accident Claims Tribunal, Special District Court, Cuddalore by the insurance company.

2. It was the case of the respondents 1 to 5/claimants 1 to 6 that the husband of the first claimant, father of the claimants 2 to 5 and son of the deceased 6^th claimant namely Azhagesan died in a road accident that had taken place on 10.07.2020. According to the claimants, the deceased was driving his two-wheeler in Cuddalore to Vridhachalam main road. When he came near V.Sathamangalam new bus stand, an Ashok Leyland goods carrier belonged to the 6^th respondent, insured with the appellant came in a rash and negligent manner and dashed against the two-wheeler. As a result of the accident, the deceased sustained grievous injuries and died. Therefore, the claim petition was filed seeking compensation of Rs.50,00,000/-

3. The 6^th respondent remained exparte before the Tribunal and the claim petition was contested only by the appellant/ insurance company, on the ground that the accident had occurred only due to the rash and negligent driving of the deceased.

4. The Tribunal, based on the evidence of P.W.2 and the contents of Ex.P1, FIR and Ex.P5, final report, came to the conclusion that the accident had occurred due to the negligence on the part of the driver of the vehicle insured with the appellant/ insurance company. The compensation payable to the claimants was quantified at Rs. 29,88,000/-.Aggrieved by the same, the insurance company has come before this court by way of this appeal.

5. The learned counsel for the appellant/Insurance Company submitted that the deceased did not possess a valid driving license at the time of accident. Therefore, the tribunal should have fixed contributory negligence on his part. He further submitted that the notional income of Rs.18,000/- fixed by the tribunal is on higher side. It is also stated by him that the amount awarded by the tribunal under conventional damages is also on higher side.

6. The learned counsel for the respondents 1 to 5/ claimants submitted that mere failure to produce the valid driving license is not a ground to fix contributory negligence. The learned counsel also submitted that the deceased had six dependents at the time of accident including one son and three unmarried daughters. Therefore, the tribunal was justified in fixing Rs.18,000/- per month as notional income.

7. The Hon'ble Apex Court in the case of Sudhir Kumar Rana Vs Surinder Singh and Others reported in (2008) 12 SCC 436 categorically held that mere failure to produce a valid driving license is not a ground to fix contributory negligence on the part of the deceased unless there is a positive evidence to show that he also contributed to the accident. In the case on hand, there is no positive evidence to suggest that the deceased by his rash and negligence contributed to the accident. Therefore, following the law laid down in Sudhir Kumar Rana case cited supra, this Court holds that contributory negligence cannot be fixed on the part of the deceased.

8. As far as the quantum of compensation is concerned, the claimants in their petition had stated that the deceased was a contract labourer employed in NLC India Limited and was earning a sum of Rs. 25,000/- per month. However, to prove the said plea, they have not produced any documentary evidence. In these circumstances, the tribunal fixed Rs.18,000/- as notional income for the deceased. Even if there is no evidence to prove the avocation and income, this Court, by taking into consideration the facts and circumstances of the case, can fix a notional income.

9. It is submitted by the learned counsel for the claimants that the deceased had a large family including three unmarried daughters and one son. Therefore, according to him, the tribunal was justified in fixing Rs.18,000/- as notional income.

10. Having a large family or more dependents is not a factor while fixing the notiona