JUDGMENT

Dated this the 5th day of March 2021 These appeals are filed by the insurance company challenging the common award dated 31.1.2009 in OP(MV) No.30/1999 and OP(MV).No.31/1999 on the file of the Motor Accident Claims Tribunal Mavelikkara. In both the cases, the insurance company is the 3rd respondent.

2. The short facts are like this:-

On 7.7.1998 at about 11.30 am the deceased in OP(MV) No.31/1999 was riding a motor cycle bearing registration No.KL-2/4870 along the NH-47 road from the north to south with deceased in OP(MV).No.30/1999 as the pillion rider and when the motor cycle reached near Kayamkulm Highway bridge a private bus bearing registration No.KRK 5463 known as Krishna Bus driven by the 7th respondent in this appeal in a rash and negligent manner along the very same road in the opposite direction ie from south to north hit against the motor cycle and thereby both the rider and the pillion rider were thrown to the road and sustained very grievous injuries and they succumbed to their injuries. The legal heirs of the deceased rider of the motor cycle and pillion rider filed the above claim petitions, claiming compensation.

3. Since, these two claim petitions are connected, the tribunal disposed both the cases by a common award.

4. To substantiate the case, the appellants produced Exts.A1 to A16 and the respondents produced Ext.B1 before the tribunal. Two witnesses were examined on the side of the petitioners/claimants.

5. After going through the pleadings and documents, the Tribunal found that there is 30% negligence on the part of the rider of the motorcycle and 70% negligence on the part of the driver of the bus. Aggrieved by this finding the insurance company filed these appeals. The insurance company is also challenging the quantum of compensation awarded by the tribunal.

6. Heard the learned counsel for the appellant and the learned counsel for the claimants.

7. The counsel for the appellant/insurance company contend that based on Ext.A2 scene mahazar the tribunal found that the motorcycle was on a wrong side. The place of occurrence in the scene mahazar is also wrong side as far as the motorcycle is concerned. Thereafter, the counsel submitted that, the tribunal erred in fixing only 30% contributing negligence on the part of the rider of the motorcycle. According to the counsel, the accident occurred because of the negligence on the part of the rider of the motorcycle and the insurance company may be exonerated in paying the compensation. The counsel also submitted that the deceased in both claim petitions were bachelors. But, only one third is deducted from the dependency compensation and according to the counsel one half ought have been deducted as per the dictum laid down by the apex court in Sarla Verma & Others v. Delhi Transport Corporation & another [2010 (2) KLT802]. The counsel for the claimants submitted that the entries in the scene mahazar cannot be accepted as evidence by the tribunal. The counsel submitted that, on perusal of the scene mahazar, it will show that the place of occurrence is pointed out by one Mohammed Kunju to the police. He is not examined. If that is the case, the entries in scene mahazar are only hearsay evidence. The counsel submitted that in the light of the final report submitted by the police as evident by Ext.A4, the negligence is to be fixed on the driver of the bus and he relied the dictum laid down by this court in New India Insurance Company Ltd. V Pazhaniammal [2011(3)KLT648). The counsel submitted that while fixing the income of the deceased future prospects is not added. Therefore, the award passed by the tribunal is not correct and this court may kindly enhance the monthly income and reassess the dependency compensation.

8. The main argument of the insurance company is that based on Ext.A2 scene mahazar, the place of occurrence is wrong side as far as the motorcycle is concerned. If that is the case, the tribunal erred in attributing contributory negligence to the rid