In the absence of concrete evidence to prove contributory negligence, the burden of liability rests on the driver of the insured vehicle. Furthermore, for non-permanent employees, future prospects are limited to 10%, and compensation must be adjusted by deducting statutory taxes from gross income for calculating loss of dependency.

THESE APPEALS ARE COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE S.G.PANDIT AND HON'BLE MR. JUSTICE RAJESH RAI K

ORAL JUDGMENT

(PER: HON'BLE MR. JUSTICE S.G.PANDIT)

The above two appeals filed under Section 173 of the Motor Vehicles Act, 1988 is directed against the judgment and award dated 22.02.2023 in MVC No.561/2021 on the file of Motor Accident Claims Tribunal, Mayo Hall Unit, Bangalore (for short “the Tribunal”)

MFA No.3808/2023 is filed by the Insurer questioning the non- consideration of contributory negligence as well as quantum of compensation awarded by the Tribunal in favour of the claimants whereas MFA No.1203/2024 is by the claimants, not being satisfied with the quantum of compensation praying for enhancement of compensation.

The brief facts of the case are that:

The claimants are the wife, children and mother of the deceased one S.Mahadeshachari who died in a road traffic accident that occurred on 02.01.2021 involving a motorcycle bearing registration No.KA-53/HC-7233 and Bolero Pick up van bearing registration No.KA-02/AH-0234. It is stated that the deceased was aged about 54 years and was earning a sum of Rs.80,000/- p.m. by doing technical work.

On issuance of notice, respondent No.1 appeared before the Tribunal and filed its written statement contending that there is delay in lodging the complaint; there is contributory negligence on the part of the rider of the motorcycle and also contended that the claimants were not dependants of the deceased. Thus, prayed for dismissal of the claim petition. However, respondent No.2 remained exparte.

Before the Tribunal, claimant No.1, wife of the deceased got examined herself as P.W.1 apart from examining one more witness as P.W.2 and got marked the documents Ex.P1 to Ex.P26. On behalf of the respondents, an officer of the Insurance Company was examined as R.W.1 and got marked the documents Ex.R1 to Ex.R3.

The Tribunal, on appreciation of material on record awarded total compensation of Rs,66,91,000/- on the following heads:

1. Loss of dependency :: Rs.65,00,890/-

2. Loss of estate :: Rs. 15,000/-

3. Towards funeral and Obsequies ceremonies :: Rs. 15,000/-

4. Loss of consortium :: Rs. 1,60,000/-

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Total :: Rs.66,91,000/-

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While awarding the above compensation, the Tribunal determined the income of the deceased at Rs.64,041/- p.m. added 15% towards future prospects and awarded compensation on the conventional heads. The Insurer is in appeal, questioning non-consideration of contributory negligence and also questioning the quantum of compensation whereas the claimants are in appeal, not being satisfied with the quantum of compensation and praying for enhancement of compensation.

Learned counsel Sri.Ashok N Patil would contend that the Tribunal failed to consider the contributory negligence on the part of the deceased, rider of the motorcycle. It is submitted that the deceased was riding the motorcycle to enter the main road while the insured vehicle was coming from T.C.Palya. It is his contention that in terms of Regulations 8 and 9 of the Rules of Road Regulations, 1989 it was the responsibility of the deceased rider of the motorcycle to give way to the vehicle which was coming on the main road. Further, learned counsel would submit that the sketch of the accident would indicate that the accident occurred on the middle of the road that too in the night at 10.30 p.m. and the rider of the motorcycle ought to have been more cautious at the said time of the accident. As the deceased rider of the motorcycle was not cautious, due to his negligence the accident occurred. Thus, he would pray for consideration of contributory negligence on the part of the rider of the motorcycle.

Nextly, learned counsel Sri.Patil for appellant-Insurance Company contended that the Tribunal committed grave error in adding 15% of the assessed income towards future prospects as the deceased was