THIS MFA FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED: 19.04.2013 PASSED IN MVC NO.4861/2011 ON THE FILE OF THE XIII ADDITIONAL SMALL CAUSE JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BANGALORE, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MRS. JUSTICE P SREE SUDHA

ORAL JUDGMENT

1. This appeal is filed by the appellant/claimant under Section 173(1) of Motor Vehicles Act, 1988 challenging the judgment and award dated 19.04.2013 passed in MVC No.4861/2011 on the file of the XIII Additional Small Cause Judge, Member, MACT, Court Of Small Causes, Bangalore, for enhancing the compensation.

2. Heard the arguments of the learned counsel for the appellant and learned counsel for respondent No.1. The ranks of the parties are retained as per tribunal for the sake of convenience.

3. One Vijay Kumar met with an accident on 18.05.2011 and his mother filed claim petition claiming compensation of Rs.25 lakhs. Tribunal considering the entire evidence on record granted an amount of Rs.7,02,000/- with interest at the rate of 6% p.a., from date of petition till realisation and also stated that there was negligence of 70% on the lorry driver and 30% on the rider of the motor cycle/deceased.

4. Aggrieved by the said order, she preferred an appeal and mainly contended that as per Ex.P6, the spot sketch, in which it was mentioned specifically that accident occurred due to the negligence of the lorry driver only. But the tribunal erred in fixing 30% contributory negligence on the part of the deceased, on the ground that he was riding the motorcycle along with 2 persons and it is in contravention of section 123 of the MV Act.

5. Learned counsel for the petitioner relied upon a citation reported in AIR 2020 SCC 520 in case of Mohammed Siddique and Anr Vs National Insurance Co. ltd and Ors., in which it was held as follows,

13. XXX. The fact that the deceased was riding on a motor cycle along with the driver and another, may not, by itself, without anything more, make him guilty of contributory negligence. At the most it would make him guilty of being a party to the violation of the law. Section 128 of the Motor Vehicles Act, 1988, imposes a restriction on the driver of a two wheeled motor cycle, not to carry more than one person on the motor cycle. Section 194C inserted by the Amendment Act 32 of 2019, prescribes a penalty for violation of safety measures for motor cycle drivers and pillion riders. Therefore, the fact that a person was a pillion rider on a motor cycle along with the driver and one more person on the pillion, may be a violation of the law. But such violation by itself, without anything more, cannot lead to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. There must either be a causal connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim. It may so happen at times, that the accident could have been averted or the injuries sustained could have been of a lesser degree, if there had been no violation of the law by the victim. What could otherwise have resulted in a simple injury might have resulted in a grievous injury or even death due to the violation of the law by the victim. It is in such cases, where, but for the violation of the law, either the accident could have been averted or the impact could have been minimized, that the principle of contributory negligence could be invoked.”

6. In this case, the manner of accident shows that on 18.05.2011 while Vijay Kumar was riding a motorcycle from Bangarpet to Deshihalli petrol bunk and reached near petrol bunk, the lorry bearing No.KA-05-B-3146 came in a rash and negligent manner and das