(Prayer: This MFA is filed u/s 173(1) of MV Act against the Judgment and award dated:27.07.2018 passed in MVC No.152/2017 on the file of the I Additional District Judge & MACT, Kodagu, Madikeri, partly allowing the Claim petition for compensation and seeking Enhancement of compensation.)

Oral Judgment:

1. This appeal is filed by the claimants challenging the judgment and award dated 27.07.2018 passed in M.V.C.No.152/2017 by the I Additional District Judge and the Motor Accident Claims Tribunal, Kodagu at Madikeri (for short 'Tribunal').

2. Smt.Suma Kedilaya, learned counsel for Sri.Padmanabha Kedilaya, learned counsel appearing for the appellants-claimants submits that the Tribunal has committed a grave error in recording the finding that the deceased has contributed to the accident and was negligent to an extent of 30%, by totally ignoring the evidence of the eye witness - PW-2. It is submitted that as per the evidence of PW-2, the accident is caused due to the sole negligence of the driver of the offending TATA Ace vehicle and hence, the entire liability is required to be saddled on the Insurance Company. It is further submitted that the Tribunal, without any justifiable reason disbelieved the evidence of PW-3 - employer of the deceased who has clearly deposed that the deceased was drawing Rs.600/- per day and hence, his income is required to be assessed at Rs.18,000/- p.m. It is also submitted that the Tribunal has awarded a meagre compensation on all the other heads. Hence, she seeks to allow the appeal by re-assessing the same appropriately by saddling the entire liability on the Insurance Company.

3. Per contra, Sri.D.Vijay Kumar, learned counsel appearing for the Insurance Company supports the impugned judgment and award of the Tribunal. Insofar as the contributory negligence is concerned, it is submitted that the sketch on record clearly indicates that the rider of the motorcycle crossed the centre of the road and dashed to the opposite side vehicle. Taking note of the same, the police have filed a charge sheet against the deceased rider as well. Hence, the Tribunal ought to have recorded the finding that the deceased also contributed to the accident to an extent of 50%. However, in the absence of any appeal by the Insurance Company, he seeks to retain the finding of the Tribunal on negligence. It is further submitted that neither PW-3 has produced any material to show that he was the employer of the deceased nor the claimants have produced any material to show that the deceased was drawing Rs.18,000/- p.m. from his vocation. It is also submitted that the award of compensation by the Tribunal is just and proper and does not call for any interference. Hence, he seeks to dismiss the appeal.

4. I have heard the arguments of the learned counsel for the appellants, the learned counsel for the respondents and meticulously perused the material available on record.

5. The only point that would arise for consideration in this appeal is:

               "Whether the impugned judgment and award passed by the Tribunal calls for any interference?"

6. The material on record indicates that on 22.08.2017, one Madhuraj.P.N was proceeding on his motorcycle from Singanaguppa to Hallymysore of Holenarasipura Taluk. The records indicate that the accident occurred approximately in the middle of the road. The records further indicate that the incident was reported to the jurisdictional police and after investigation, the police have filed a charge sheet against the deceased rider of the motorcycle as well as the driver of the offending TATA Ace vehicle bearing registration No.KA-13 B-7286. The Tribunal, considering the same recorded the finding that the deceased was negligent to an extent of 30% and 70% negligence on the driver of the TATA Ace vehicle. It is to be noticed that in order to prove the claim and the aspect of negligence, the claimant No.1 examined herself as PW-1 and examined witnesses PW-2 who claimed to be the eye witness to the incident and PW-3 who claimed to be the employer of the deceased. A perusal of the oral testimony of PW-2 indicates that PW-2 was also proceeding in the same direction behind the deceased and hence, he saw the accident in question. The oral testimony of PW-2 also indicates that the driver of the TATA Ace vehicle was driving the vehicle in a rash and negligent manner, came from the opposite direction and dashed against the motorcycle of the deceased. However, the said evidence runs contrary to Ex.P5-the sketch on record as well as the charge sheet. As per the oral testimony of PW-2, the driver of TATA Ace vehicle was negligent and caused the accident. However, the police investigation reveals that the negligence was on the part of the deceased as well as the driver of the TATA Ace vehicle. Ex.P5-sketch indicates that when the deceased crossed the middle of the road, the accident has occurred. Considering the said aspect, the Tribunal recorded the finding that the deceased has contributed to the accident to an extent of 30%. Taking note of the overall evidence of PW-2, the charge sheet material, Ex-P5 and keeping in mind the fact that the deceased was riding a small twowheeler and the opposite vehicle was a light motor vehicle, I am of the considered view that it would be appropriate to modify the negligence on the part of deceased to an extent of 25% and 75% on the part of the driver of the TATA Ace vehicle. Accordingly, the impugned judgment and award of the Tribunal is modified in this regard.

7. Insofar as the quantum of compensation is concerned, the claimants made an assertion that the deceased was working as a driver of a Maxi cab and in order to prove his income and vocation, the mother of the deceased has been examined as PW-1, the employer of the deceased has been examined as PW-3 and the driving licence of the deceased is produced at Ex.P11. Considering the said aspect, in my considered view, the Tribunal has committed a grave error in recording the finding that the claimants have failed to produce the passbook or the Income Tax returns of the deceased. The claimant No.1 who is the mother of the deceased driver of the Maxi cab cannot be expected to produce the Income Tax returns and the passbook. PW-3-employer of deceased clearly deposed that he used to pay Rs.600/- per day to the deceased and the said witness has been crossexamined at length. However, nothing has been elicited. Hence, in the absence of any such contrary evidence and taking note of the fact that the Karnataka State Legal Services Authority, for the accident of the year 2017, notionally assesses the income at Rs.11,000/- p.m. in respect of an unskilled worker, I am of the view that the income of the deceased is required to be re-assessed at Rs.18,000/- p.m. as the deceased was a driver by vocation and the claimants have examined his employer.

8. Learned counsel for the Insurance Company submits that the evidence of PW-3 cannot be believed as he has failed to demonstrate before the Tribunal that the deceased used to collect the money and used to pay the said amount to PW-3 and no material is also placed to that effect as PW-3 has clearly admitted that he has not maintained any accounts, ledger etc. for making the payment to the deceased. Hence, PW-3 may be a stranger and there is no employer and employee relationship. The said contention requires to be rejected for the simple reason that PW-1, the mother of the deceased has clearly deposed that the deceased was working with PW-3 and PW-3 has also categorically made a statement before the Tribunal that he used to pay Rs.600/- per day to the deceased. This evidence of PW-1 and that of PW-3 corroborates with each other. Moreover, in the cross-examination also, nothing is elicited. Hence, the aforesaid contention of the Insurance Company has no merit and is accordingly rejected.

9. The deceased was aged about 24 years. Hence, the claimants are entitled to an additional compensation under the head of future prospects at the rate of 40% to the assessed income. The appropriate multiplier would be '18'. The deceased was a bachelor and hence, the deduction towards his personal and living expenses would be 50%. Therefore, the compensation towards loss of dependency is re-assessed as under:

               Rs.18,000 + 40% x 12 x 18 - 50% = Rs.27,21,600/-

10. The claimants are the parents of the deceased. Hence, they are entitled to Rs.40,000/- each under the head of loss of consortium, Rs.15,000/- towards loss of estate and Rs.15,000/- towards the transportation of dead body and funeral expenses. The compensation awarded by the Tribunal towards medical expenses at Rs.51,700/- remains unaltered. Thus, the claimants would be entitled to the modified compensation as under:



11. The claimants are entitled to 75% of the aforesaid compensation i.e. Rs.21,62,475/- as against Rs.8,77,700/- awarded by the Tribunal.

12. In the result, this Court proceeds to pass the following:

                                                            ORDER

               a) The appeal is allowed-in-part.

               b) The impugned judgment and award dated 27.07.2018 passed by the Tribunal in M.V.C.No.152/2017 is modified to an extent that the appellants-claimants would be entitled to the compensation of Rs.21,62,475/- (75% of the total compensation of Rs.28,83,300/-) as against Rs.8,77,700/- awarded by the Tribunal.

               c) The enhanced compensation shall carry interest at the rate of 6% p.a. from the date of petition till realisation.

               d) The respondent No.2 shall deposit 75% of the total compensation with accrued interest before the Tribunal within a period of six weeks from the date of receipt of the certified copy of this judgment.

               e) The rest of the judgment and award of the Tribunal with respect to apportionment, deposit and release shall remain unaltered.

               f) Draw the modified award accordingly.