The court modified the contributory negligence from 60% to 40% against the motorcycle rider, enhancing the compensation awarded based on proper income assessment.

ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE G BASAVARAJA)

Appellants have preferred this appeal against the Judgment and Award dated 06^th January 2021 passed in MVC No.90 of 2013 on the file of the Principal District & Sessions Judge and Member, Motor Accident Claims Tribunal, Chikkamagaluru (for short hereinafter referred to as the "Tribunal"), challenging the saddling of 60% contributory negligence on the part of rider of motorcycle as also seeking enhancement of compensation.

2. The facts of the case are that on 24^th November 2012 at 4.00 pm, deceased Dinesh, son of appellants herein, was proceeding on motorcycle bearing registration No.KA-17/U- 490 near Mattavara check Post and at that time one Tipper Lorry bearing registration No.KA-18/B-0182 being driven in a rash and negligent manner hit the motorcycle. As a result, the rider of motorcycle-Dinesh sustained grievous injuries and died on the spot. It is submitted that deceased was a mechanic earning Rs.15,000/- per month and the appellants were dependent on his earnings. Hence, the appellants filed claim petition before the Tribunal seeking compensation of Rs.20.00 lakh. The Tribunal awarded compensation of Rs.8,91,800/- Further, the Tribunal has held that the rider of the motorcycle has also contributed to the accident and accordingly saddled 60% contributory negligence and accordingly awarded compensation of Rs.3,56,720/-. Challenging the said Judgment and Award, appellants are before the court in this appeal.

3. Sri Y. Varun Sai, learned Counsel appearing for the appellants, would submit that the Tribunal has committed an error in fastening contributory negligence on the part of the deceased. He would submit that after investigation, the Investigating officer has submitted charge-sheet against the driver of the tipper Lorry bearing registration No.KA-18/B- 0182. Sri Shivakumar, one of the eye-witnesses shown in the charge-sheet, who is examined as PW2, has deposed as to the accident in which he has clearly stated that the driver of Tipper came from opposite side in rash and negligent manner on the right side of the road and dashed to the motorcycle. The impact of which was, the rider of the motorcycle fell and succumbed to the injuries on the spot. The trial Court ignored the evidence of PW2, and also the charge-sheet submitted against the driver of the tipper and fixed the contributory negligence in an extent of 60% on the rider of the motorcycle, which is not sustainable under law. He would further submit that the Tribunal has wrongly taken the notional income of the deceased at Rs.6,000/- per month which is contrary to the guidelines issued by the Karnataka State Legal Services Authority. His further submission is that the Tribunal has also not awarded just compensation under the other heads as per the decisions of the Hon'ble Supreme Court. On all these grounds he sought to allow the appeal.

4. As against this, Sri Hegde Mulkhand, learned counsel appearing for respondent-Insurance Company would submit that the Tribunal has properly appreciated the evidence on record and has fastened the liability on both the rider of motorcycle and rider of tipper. However, he fairly submits that the Tribunal has taken the income only at Rs.6,000/-, which is not in consonance with the chart issued by the Karnataka State Legal Services Authority.

5. Having heard the arguments on both sides and on perusal of material is placed before us, it is clear that earlier in the said claim petition, the Tribunal has dismissed the claim petition on 22^nd September 2014. Being aggrieved, the appellants have challenged the same before this Court in MFA No.3293 of 2015, which came to