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This appeal is at the instance of the claimants calling in question the correctness of the judgment and award dated 10.03.2010 in MVC No.594/2008 passed by the learned Presiding Officer, Fast Track Court-II cum Motor Accident Claims Tribunal-X at Ballari (for short "the Tribunal").

2. Brief facts as per the case of the claimants is that on 18.03.2008, deceased-S.Nagaraj was riding motorcycle bearing registration No.KA-17/W-7804 from Hospete towards Kudligi near Murugesh Dhaba in Kaivalyapura village and at that time, the driver of JCB bearing registration No.KA-35/M- 4068 drove the same in a rash and negligent manner and in high speed and dashed against the motorcycle resulting in death of the deceased.

3. The claim petition was contested by all the respondents before the learned Tribunal. However respondent No.1 and 2 did not file any written statement and only the Insurance Company filed its written statement.

4. During trial, claimant No.1 examined herself as PW1 and Exs.P1 to P9 were marked. One eyewitness was examined as PW2. Respondent No.3 examined one of its officials as RW1 and Ex.R1 to R4 were marked.

5. After hearing the learned counsel on both sides and perusing the records, the learned Tribunal quantified a total compensation of Rs.19,36,000/- for the death of the deceased but upon its finding that there was 75% contributory negligence on the part of the deceased, awarded Rs.4,84,000/- to the claimants with interest thereon at 6% per annum and fastened the liability to pay the same on the insurance Company. In this appeal, learned counsel for the appellants-claimants strenuously contended that the contributory negligence fixed at 75% against the deceased is not supported by evidence and on the other hand, JCB being a bigger vehicle, no contributory negligence should have been attributed to the rider of the motorcycle at all. Her further contention is that the reliance placed by the learned Tribunal on the Sketch Map (Ex.R4) and the Spot Panchanama (Ex.P2) is erroneous inasmuch as they only reflect the state of affairs as to what situation obtained at the spot post-accident. She contended that the charge sheet (Ex.P3) showed that the accident had taken place due to the rash and negligent driving by the driver of the JCB and in view of the evidence of eyewitness, learned Tribunal should have held that the driver of the offending JCB vehicle alone was negligent. She also pointed out that the respondents had not examined the driver of the JCB. She therefore submitted that the award to the extent it apportioned contributory negligence on the deceased is liable to be set aside. She also submitted that on conventional heads like consortium etc., the learned Tribunal has awarded a lesser compensation.

7. I have given my anxious consideration to the submissions made on both sides and I have carefully perused the records.

8. The case of the claimant is that on 18.03.2008 while deceased-S.Nagaraj was riding his motorcycle near a Dhaba in Kaivalyapura village, on account of rash and negligent driving of the offending JCB, the accident had taken place resulting in death of the deceased.

9. Learned Tribunal, after trial and on appreciation of the evidence has recorded a finding that deceased was earning monthly income of Rs.9,254/- by working as a teacher in a Government School and the said correctness of the same is not disputed by the learned counsel for the Insurance Company before me. Similarly, the age of the deceased is also not in dispute. Learned Tribunal has taken the same at 27 years and it has held that appropriate multiplier applicable to the said age is '17'. 50% of the income is required to be added to the salary of the deceased towards loss of future prospects by following the decision of the Hon'ble Supreme Court in National Insurance Company Limited v. Pranay Sethi and others1 and since he has left behind a widow and mother, 1/3rd of the income is required to be deducted towards personal expenses of the deceased. Learned Tribunal has observed the above said aspects by following correct principles of law.

10. In regard to the aspect of negligence regarding the occurrence of the accident is concerned, the charge (2017) 16 SCC 680 sheet (Ex.P3) is filed against the driver of the offending JCB in question. It is also true that respondents have not examined the driver of the JCB, who was the most important witness in this case. Further, as per the charge-sheet (Ex.P3), the culpable negligence is attributed solely to the driver of the JCB for the accident. In regard to the scene of occurrence, Ex.P2, which is Spot Panchanama and Ex.R4, which is a Sketch Map show that when they were prepared by the police i.e. after the accident, the motorcycle and the dead body were on the wrong side so far as the rider of the motorcycle is concerned. The eyewitness examined (PW2), as held by the learned Tribunal, cannot be relied upon in view of the fact that before the learned Criminal Court he was examined as a witness and he had turned hostile and he has explicitly stated before the Court that he had not seen the accident(Ex.R3). The question of negligence has to be now decided keeping the above facts in view. The probabilities clearly suggest that the rider of the motorcycle was somewhere on the median of the road which was 24 ft. in width at the time of the accident. It cannot be denied that the JCB is a bigger vehicle. Learned Tribunal has needlessly kept in view the aspect of deceased possibly not having a valid and effective driving licence to ride a motorcycle. In view of the fact that Ex.P2 and Ex.R4 do not reflect the actual spot of the accident at the time of the impact and also the fact that the driver of the JCB was not examined by the respondents, it can be safely assumed that there was equal negligence on the part of both driver of JCB as well as the rider of the motorcycle. As a matter of fact, learned Tribunal has held that there was negligence on the part of the driver of the JCB also. However, there was error in apportioning the contributory negligence to the extent of 75% on the rider of the motorcycle. If only the respondents had examined the driver of the JCB, it would have been possible for the Court to ascertain what measures the driver of the JCB had taken to avert the accident. In that view of the matter, I am of the view that the negligence has to be apportioned equally between the rider of the motorcycle as well as the driver of the JCB.