Contributory negligence must be established by evidence, and the court granted enhanced compensation recognizing the deceased's age and clarifying the error in previous judgment.

JUDGMENT :

B.R. MADHUSUDHAN RAO, J.

1. This Memorandum of Motor Accident Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988 (for short, ‘the MV Act, 1988’) assailing the Award passed by the IV Additional Metropolitan Sessions Judge-cum-XVIII Additional Chief Judge, Hyderabad, in O.P.No.1550 of 2005 dated 03.12.2007.

2.1. Appellants are the petitioners and sole respondent is the respondent in O.P.

2.2. Notice got issued to the respondent in the appeal is served on 12.01.2009, none appeared.

3.1. Appellants-petitioners have filed claim petition under Section 166 of the M.V.Act claiming compensation of Rs.4,00,000/- for the death of Anantha Narsamma with interest at 9% per annum from the date of filing the petition with costs and interest.

3.2. Appellant No.1-petitioner No.1 is the husband and appellant Nos.2 to 4-petitioner Nos.2 to 4 are the sons of deceased Anantha Narsamma.

3.3. It is stated in the O.P. that on 07.03.2005, at about 07.00 a.m., while Anantha Narsamma was crossing the road near Risala Bazar, Kanchi Muthyalamma Temple in Secunderabad opposite to Electrical transformer, an RTC bus bearing No.AP10Z5811 came in a rash and negligent manner and dashed Anantha Narsamma, due to which she fell down on the road and received bleeding injuries, immediately she was shifted to G.N.R Hospital of Alwal, where the Doctors declared that the injured Anantha Narsamma brought dead. On the date of accident, deceased Anantha Narsamma was aged about 33 years and was hale and healthy, doing agriculture, used to sell vegetables and was earning Rs.3,000/- per month and contributing the same to the family.

3.4. On the death of deceased Anantha Narsamma, appellant No.1-petitioner No.1 has lost his wife and appellant Nos.2 to 4-petitioner Nos.2 to 4 have lost their mother and prayed to allow the O.P. as prayed for.

4. Sole respondent has filed counter and denied the manner in which the accident has taken place, the age and income of the deceased and prayed to dismiss the OP.

5. Learned Tribunal has framed the following issues:

i. Whether the accident resulting in death of Smt. Anantha Narsamma occurred owing to the rash and negligent driving of driver of RTC bus bearing No.AP10Z5811?

ii. Whether the petitioners are entitled for compensation? If so, to what amount and from whom?

iii. To what relief?

6. Appellant No.1-petitioner No.1 is examined as PW-1 and also examined PW-2 – Y. Yadagiri and got marked Exs.A1 to A4. No evidence is adduced by the respondent and no documents are marked.

7. Appellant No.1-petitioner No.1 expired after adducing his evidence, memo is filed to that effect before the learned Tribunal, stating that his legal representatives are already on record as appellant Nos.2 to 4-petitioner Nos.2 to 4.

8. Learned Tribunal after analyzing the evidence adduced by the appellants-petitioners has partly allowed the O.P and awarded compensation of Rs.3,60,000/-, as there is a contributory negligence on the part of the deceased, adopted the proportion of 2:1 ratio, held that the appellants-petitioners are entitled for Rs.2,40,000/- and Rs.15,000/- towards conventional expenses. In total, awarded an amount of Rs.2,55,000/- with interest at 7.5% per annum from the date of petition till the date of realization against the respondent.

9.1. Learned counsel for the appellants-petitioners submits that the learned Tribunal erred in awarding meager amount against the claim of Rs.4,00,000/-, committed serious irregularity and illegality and arrived at a perverse finding that the deceased was also held responsibility in causing the accident in proportion of 1:2 ratio. The Tribunal ought to have taken the age of deceased as 33 years instead of taking that the deceased was in the age group of 40-45 years and wrongly adopted the multiplier. Learned Tribunal has not awarded any amount towards loss of love and affection to the appellants-petitioners and the