THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 08.07.2015 PASSED IN MVC NO.5760/2013 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, MEMBER, MACT, COURT OF SMALL CAUSES, BENGALURU, AWARDING A COMPENSATION OF RS.2,19,750/- WITH INTERST @ 9% P.A FROM THE DATE OF PETITION TILL THE DATE OF REALIZATION.

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

CORAM: HON'BLE MRS. JUSTICE P SREE SUDHA

ORAL JUDGMENT

This appeal is filed by the appellant-insurance company under Section 173(1) of the Motor Vehicles Act, 1988 challenging the judgment and award dated 08.07.2015 passed in MVC No.5760/2013 on the file of the III Additional Senior Civil Judge and Member, MACT, Court of Small Causes, Bangalore.

2. The Common Award is passed by the Tribunal in MVC.Nos.5759 and 5760/2013 dated 08.07.2015. The injured claimant met with an accident on 25.06.2013 and filed claim petition, claiming compensation of Rs.8,00,000/-. The Tribunal considering the entire evidence on record, granted an amount of Rs.2,19,750/- with interest at the rate of 9% per annum from the date of petition till its realization. The Tribunal assessed the contributory negligence of rider of the motorcycle as 25% and that of insurance company as 75%.

3. Aggrieved by the above said order, insurance company preferred this appeal and mainly contended that the petitioner was a pillion rider and rider of the motorcycle was traveling with two pillion riders on motorcycle bearing No.KA-05-HR-9841. Ex.P4 is the spot sketch and spot panchanama at Ex.P3 shows that motorcycle crossed the middle line of the road and went to the extreme right side against the insured Tempo bearing No.KA-03-C-0871. Therefore, the accident occurred only due to negligence of the driver of the motorcycle. The driver of the Tempo was proceeding slowly and cautiously by observing all traffic rules and there was no negligence on the part of driver of the Tempo. But the Tribunal relied upon a citation of the Hon'ble Supreme Court in the case of P.S. Somaiah vs. Director, Bangalore Diary reported in ACJ 2005 1359 and fixed 75% negligence on the driver of the Tempo, which is illegal and arbitrary. Further, the Tribunal relied upon spot sketch-Ex.P4, spot panchanama-Ex.P3 and stated width of the road at the spot of accident was 30 feet, western side of the footpath from spot of accident was 18 feet, eastern side of the footpath from spot of the accident was 12 feet. It is contended that the motorcycle crossed the middle line of the road, went to the eastern side of the road and dashed the insured Tempo and they further stated that the Tribunal ought to have attributed 90% of negligence on the part of the rider of the motorcycle and 10% negligence on the part of the driver of the Tempo. A rider of the motorcycle has no driving license and he was driving the motorcycle with two pillion riders, which is against Section 128 of the M.V.Act, and the driver of the motorcycle came to the extreme right side of the road and dashed the Tempo. Therefore, requested for modification of the contributory negligence.

4. Heard the learned counsel for the appellant. Learned counsel relied upon the judgment of this Court in MFA No.7742/2015 dated 12.06.2018 and the said judgment is filed by the insurance company against the award of the Tribunal. After discussing the entire evidence on record, the Co-ordinate Bench held that the contributory negligence on the part of the rider of the motorcycle was fixed as 60% and that of the pillion riders as 40% each.

5. This appeal is filed by the pillion rider and therefore this Court finds that it is just and reasonable to fix the contributory negligence of the appellant herein as 40% and 60% on the insurance company i.e., on the driver of the Tempo and the amount awarded by the Tribunal is not in dispute. The insurance company might have deposited 50% of the compensation at the time of appeal. Therefore, the insurance company is