JUDGMENT

This appeal is preferred by the appellant/insurer questioning the judgment & award dated 27th February, 2020 passed in MVC No.1242/2019 by the XVIII Addl. Judge, Court of Small Causes & MACT, Bengaluru (for short ‘the Tribunal). This appeal is founded on the premise that the judgment & award passed by the Tribunal is perverse, arbitrary, illegal and the compensation awarded is exhorbitant and unreasonable.

2. Parties to the appeal shall be referred to as per their status before the Tribunal.

3. Brief facts of the case are as under:

On 30.11.2019 at about 11.00 a.m. when the claimant was crossing the road by observing traffic rules, all of a sudden a motor cycle bearing Registration No.KA- 04-EK-4143 ridden by its rider in a rash and negligent manner came in a high speed and dashed against the claimant, due to which the claimant sustained grievous injuries all over the body and immediately, she was shifted to Prolife hospital and thereafter to Medstar hospital, where she was admitted as an in-patient. She expended huge amount towards medicine, nourishment, transportation and conveyance.

3.1 It is stated that prior to the occurrence of the accident, the claimant was hale and healthy and working as Proprietor of Bhavani Hardware and Electricals earning Rs.50,000/- per month. In view of the financial loss, physical injury and emotional stress caused by the accident by the rider of the offending motorcycle, the claimant filed a claim petition claiming compensation for the injuries sustained, loss of future income etc., 3.2 On service of notice, respondent No.2 remained absent and he was placed exparte before the Tribunal.

Respondent No.1 appeared through its counsel and filed the written statement denying the averments made in the claim petition including age, avocation, income and negligence attributed against rider of the motorcycle and contended that the accident occurred due to the sole negligence of the claimant, who crossed the road negligently. On these grounds sought for dismissal of the claim petition.

3.3 On the basis of the pleadings, the Tribunal framed the relevant issues for consideration.

3.4 In order to substantiate the issues and establish the case, the claimant got examined herself as PW.1 and doctor as PW.2 and got marked Ex.P1 to Ex.P18. The respondents did not adduce any evidence nor produce any documents on their behalf.

3.5 Based on the material evidence, both oral and documentary, the Tribunal awarded total compensation of Rs.9,50,000/- alongwith interest at 6% per annum and directed the respondent No.1/insurer to deposit the compensation within 30 days.

3.6 Being aggrieved by the exhorbitant compensation awarded by the Tribunal, the insurance company is before this Court on the ground that the judgment & award passed by the Tribunal is perverse, arbitrary, illegal and erroneous.

4. I have heard learned counsel for the parties.

5. It is the vehement contention of learned counsel for the appellant/insurer that the Tribunal failed to appreciate that the claimant crossed the highway negligently where there was no zebra crossing or signal lights and contributed to the occurrence of the accident. The Tribunal failed to attribute contributory negligence as against the claimant and erroneously fastened the entire liability against rider of the motorcycle which was insured with the appellant. Secondly, the Tribunal has committed gross error in assessment of the income for computation of the compensation. The Tribunal assessed the income on the higher side and erroneously taken the entire income as mentioned in Ex.P14/Income Tax Returns ignoring the fact that the claimant was working as Proprietor of Bhavani Hardware and Electricals prior to the accident and pursuant to the accident, her son is running the business in the same proprietary concern and therefore, there is no stoppage of income and the business has not been stooped or closed down. Therefore, it is appropriate to take the notional income as per the Karn