Contributory negligence must be supported by evidence; the notional income of the deceased was adjusted based on age and circumstances, correcting the multiplier as per established legal principles.

JUDGMENT :

S. SOUNTHAR, J.

Not satisfied with the quantum of compensation awarded by the Motor Accident Claims Tribunal, Special District Court, Krishnagiri, the claimants have come by way of this appeal.

2. It is not in dispute that the father of the claimants aged about 80 years died in a road accident that had taken place on 23.06.2019. According to the claimants, on 23.06.2019 the deceased was travelling in a two wheeler bearing Registration No.TN-70-2540 as a pillion rider. The 2^nd claimant rided the two wheeler. When 2^nd claimant was proceeding on the left hand side of the road slowly and cautiously by observing all traffic rules, a Ford Car bearing Registration No.TN-63-BA-3372 owned by 1^st respondent insured with the 2^nd respondent came in the opposite direction in a rash and negligent manner and dashed against the two wheeler driven by the 2^nd claimant. As a result of which the deceased sustained fatal injuries and died on the spot. It is claimed by the claimants that the accident had occurred only due to the rash and negligent driving of the car belonging to the 1^st respondent insured with the 2^nd respondent-Insurance Company.

3. The 1^st respondent remained exparte before the Tribunal and the claim petition was opposed by the 2^nd respondent mainly on the ground that accident had occurred due to the rash and negligent driving of the two wheeler by the 2^nd claimant.

4. Before the Tribunal, the 2^nd appellant/2^nd claimant was examined as PW.1. On the side of the appellants, 8 documents were marked as Exs.P1 to P8. No one was examined and exhibited on the side of the 1^st respondent. One S.Chinnasamy, the Police Officer, was examined as RW.1 and on the side of the 2^nd respondent, 4 documents were examined as Exs.R1 to R4.

5. The Tribunal based on the evidence available on record came to the conclusion that the accident had occurred due to the rash and negligent driving of the car owned by the 1^st respondent. However, the Tribunal fixed Contributory Negligence of 10% on the part of the driver of the two wheeler on the ground that he did not possess valid driving licence. Ultimately, the Tribunal awarded a sum of Rs.3,00,625/- as compensation to the claimants after deducting 10% towards contributory negligence (Rs.3,34,028 – 10%). Aggrieved by the same, the claimants have come by way of this appeal.

6. The learned counsel appearing for the appellants/claimants would submit that the accident had occurred in the year 2019, however, the Tribunal fixed the income of the deceased at Rs.4,000/- per month which is very much on lower side.

7. The learned counsel appearing for the 2^nd respondent/Insurance Company would submit that the deceased was aged about 80 years at the time of accident and therefore, the Tribunal was justified in fixing Rs.4,000/- as monthly income of the deceased. He further submitted that the Tribunal committed an error in applying multiplier of 7 instead of 5 as per the law laid down by the Apex Court in Sarla Verma and others vs. DTC and others reported in (2009) 6 SCC 121.

8. Merely because, the driver of the two wheeler did not possess a valid driving licence, we cannot fix contributory negligence on his part. The contributory negligence can be fastened on the part of the driver only based on the positive evidence available on record. In the case on hand, the 2^nd claimant, who drove the two wheeler was examined as PW.1 and he deposed about the rash and negligent driving of the car owned by the 1^st respondent. However, the driver of the car belonging to the 1^st respondent was not examined.

9. Based on the evidence available on record, the Tribunal came to the conclusion that the accident had occurred only due to rash and negligent driving of the driver of the car alone. In the absence of any positive evidence to fasten contributory negligence on the part of the driver of the two wheeler of the vehicle, merely because, he did not possess valid driving licence, the Tribunal ought not have fixed 10% contributory negli