The burden of proving contributory negligence in motor accident claims lies on the insurance company based on the preponderance of probabilities; mere allegations without cogent evidence are insufficient to reduce the compensation award.

ORAL JUDGMENT

(1) Feeling aggrieved by and dissatisfied with the judgment and award dated 04.02.2022 passed by learned Motor Accident Claims Tribunal (Aux.), Dhoraji at Rajkot, (hereinafter referred to as "the Tribunal" for short), in Motor Accident Claim Petition No.81/2017, the appellant –Insurance Company preferred present appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "the Act" for short).

(2) Heard Mr. Rathin P. Raval, learned Advocate for the appellant – Insurance Company and Mr. Nishit Bhalodi, learned counsel for the original claimants. Though served, none appears for rest of the respondents.

(3) It is the case of the claimants that on 16.08.2017, deceased was going in motorcar bearing No.GJ-03-JL-4952, which was driven by his son Sagar Babubhai Unghad (claimant No.3) and when they reached near Aerodram on Porbandar – Rajkot National Highway, at that time, one another motorcar bearing No.GJ-03-EC-4371 was going ahead of the car of the deceased. At that time, driver of that car had suddenly applied brakes, due to which, the car of the deceased dashed with it. As a result, the deceased got serious injuries and succumbed to it. Therefore, the claim petition was filed by the legal heirs of the deceased to get compensation of Rs.20,00,000/- from the opponents. After appreciating the evidence produced on record, the learned Tribunal awarded compensation of Rs.16,02,000/- along with cost and interest @ 9 % p.a.

(4) Learned counsel for the appellant–Insurance Company has submitted that the Tribunal has committed an error in considering the income of the deceased as Rs.15,000/- p.m in absence of any evidence of income and further, in not considering contributory negligence on the part of the deceased. Therefore, at least 50 % contributed negligence ought to have been held by the Tribunal on the part of the deceased. On the aforesaid grounds, learned counsel for the appellant has requested to allow the appeal as prayed for.

(5) Per contra, learned counsel for the original claimants has opposed the present appeal and submitted that the Tribunal has not committed any error in holding sole negligent on the part of the driver of car bearing No.GJ-03-EC-4371 because the accident occurred only because of negligence on his part. Further, no any evidence is produced on record to rebut or presume that the deceased was negligent in causing the accident. The Tribunal has properly relied on the authorities delivered in case of National Insurance Company Ltd. v. Chamundeshwari Devi , reported in (2021) 9 SCC 439.

He has also submitted that, the Tribunal considering the fact that the deceased was owner of the car and from one day, he owned lath machine, considered his income as Rs.15,000/- p.m. Hence, no error has been committed by the Tribunal. Even deceased was driving the car as an occupant and hence, for him, this is a case of composite negligence and therefore, question does not arise to consider contributory negligence. Further, opponent Nos.1 and 2 did not appear before the Tribunal and have not disputed or rebutted the evidence produced before the Tribunal. Hence, question does not arise to consider contributory negligence on the part of the deceased. Hence, he has requested to dismiss the appeal.

(6) Having heard learned counsel for both sides and upon perusal of the material placed on record, it is evident that the involvement of the offending vehicle and the coverage of the insurance policy are not in dispute. To substantiate their case, the claimants have produced documenta