The court highlighted the necessity of presenting evidence to establish contributory negligence and redefined the compensation amount based on established income and circumstances of the accident.

1. Both appeals are being decided together as they arise out of a common award arising out of the same accident.

2. MA No. 258/2016 has been filed by the appellant insurance company on the ground that the offending vehicle has been falsely implicated in the accident, hence prays for exonerating the insurance company from its liability whereas MA No. 352/2016 has been filed by the claimants on the ground of enhancement of compensation as well as for setting aside the finding regarding contributory negligence on the part of the deceased.

3. Both appeals have been filed under S.173 of the Motor Vehicles Act challenging the award dated 2.11.2015 passed by MACT, Ujjain in Claim Case No. 104/2012.

4. Brief facts of the case are that on 20.2.2012 deceased Yashwant was going on a motor cycle along with his friend Sanjay and when they reached near RD Gardi Medical College, Agar Road, Ujjain, their vehicle dashed with a stationary tractor - trolley bearing registration No. MOU - 5780, due to which Yashwant died on the spot.

5. Appellant insurance company and driver and owner of the offending vehicle contested the claim and denied all the material allegations made in the claim petition. However, the Tribunal, after framing issues and recording evidence, allowed the claim petition filed by the claimants and calculated a total compensation of Rs.14,10,119 along with interest but after deducting 50 per cent amount towards contributory negligence on the part of the deceased, awarded only a sum of Rs.7,05,060 payable by the insurance company, driver and owner of the offending vehicle jointly and severally.

6. Being aggrieved by the said award, the insurance company has filed MA No. 258/2016 on the ground that the Tribunal has committed an error in not considering the fact that no eyewitness was examined by the claimants to prove the fact of accident. Witness Sitaram has admitted in his cross - examination that he reached the spot of accident after 10 minutes of the accident which goes to show that he was not an eyewitness to the incident. Since no eyewitness was examined by the claimants, the Tribunal has committed an error in believing the fact of accident.

7. Learned counsel for the insurance company further submits that the compensation awarded by the Tribunal is on the higher side because the restaurant which was being run by the deceased is still running, hence prays for reducing the amount of compensation awarded by the Tribunal and also seeking exoneration of the insurance company from its liability.

8. On the other hand, being aggrieved by the impugned award, the claimants have filed MA No. 352/2016 on the ground of inadequacy of compensation and seeking enhancement of compensation. Counsel for the claimants submits that the Tribunal has committed an error in not awarding just and proper amount of compensation in the case. The Tribunal has also committed an error in fastening 50 per cent contributory negligence on the deceased. The Tribunal has committed an error in assessing 50 per cent of the income of the deceased from the hotel business as his income which is totally against the documentary evidence - Exhs. P / 6, P / 7 and P / 8. The Tribunal has committed an error in disbelieving the income of the deceased as per the income tax return, i.e., Rs.1,86,997 per annum which is totally erroneous, perverse and against the evidence, hence prayed for setting aside the finding regarding 50 per cent contributory negligence on the part of the deceased. Hence, both the appellants, i.e., the insurance company of the offending vehicle as well as c