- 1 - MFA NO.201992/2019 AND CONNECTED MATTERS IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS 18TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MR. JUSTICE K NATARAJAN AND THE HON’BLE MR. JUSTICE VIJAYKUMAR A. PATIL MISCELLANEOUS FIRST APPEAL NO. 201992 OF 2019 C/W MISCELLANEOUS FIRST APPEAL NO. 201993 OF 2019 MISCELLANEOUS FIRST APPEAL NO. 201994 OF 2019 MISCELLANEOUS FIRST APPEAL NO. 200372 OF 2020 MISCELLANEOUS FIRST APPEAL NO. 200373 OF 2020 MISCELLANEOUS FIRST APPEAL NO. 200376 OF 2020 IN MFA NO.201992/2019: BETWEEN: THE BRANCH MANAGER, ROYAL SUNDARAM INSURANCE CO. LTD., SUNDARAM TOWERS, 45 & 46, WHITES ROAD, CHENNAI – 600002. NOW REPRESENTED BY ROYAL SUNDARAM GEN, INSURANCE CO. LTD., NO.1, SUBRAMANIAM BUILDING, 2ND FLOOR, CLUB HOUSE ROAD, ANNA SALAI, CHENNAI – 600002. THROUGH MANAGER LEGAL. …APPELLANT (BY SMT. PREETI PATIL MELKUNDI, ADVOCATE) AND: 1. VIVEKANAND S/O VEERAYYA SALIMATH, BAMMANAHALLI, Digitally signed by RAMESH MATHAPATI Location: HIGH COURT OF KARNATAKA - 2 - MFA NO.201992/2019 AND CONNECTED MATTERS AGE: 53 YEARS, OCC: LECTURER, 2. BHARATI W/O VIVEKANAND SALIMATH, BAMMANAHALLI, AGE: 48 YEARS, OCC: HOUSEHOLD, BOTH R/O VIVEKANAND NAGAR, SINDAGI, DIST: VIJAYPURA – 586101. 3. ARJUN S/O RACHAPPA KUMBAR, AGE: 43 YEARS, OCC: BUSINESS, R/O BARADOL, TQ: INDI, DIST: VIJAYAPURA – 586209. …RESPONDENTS (BY SRI. SANGANABASAVA B. PATIL, ADV. FOR R1 & R2; SRI. SANGANAGOUDA V. BIRADAR, ADV. FOR R3) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 13TH DAY OF JUNE 2019 PASSED BY THE III ADDITIONAL SENIOR CIVIL JUDGE & MEMBER MACT XII AT VIJAYPURA IN MVC NO.326/2016 AND TO MODIFY THE COMPENSATION AWARDED AND TO PASS SUCH OTHER ORDERS AS THIS HON’BLE COURT DEEMS FIT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. IN M.F.A NO.201993/2019: BETWEEN: THE BRANCH MANAGER, ROYAL SUNDARAM INSURANCE CO. LTD., SUNDARAM TOWERS, 45 & 46 WHITES ROAD, CHENNAI – 600002. NOW REPRESENTED BY ROYAL SUNDARAM GEN, INSURANCE CO. LTD., NO.1, SUBRAMANIAM BUILDING, 2ND FLOOR, CLUB HOUSE ROAD, ANNA SALAI, CHENNAI – 600002. THROUGH LEGAL MANAGER. …APPELLANT (BY SMT. PREETI PATIL MELKUNDI, ADVOCATE) - 3 - MFA NO.201992/2019 AND CONNECTED MATTERS AND: 1. KALYAN S/O KSHITISHCHANDRA MONDAL AGE: 54 YEARS 2. ANANYA W/O KALYAN MONDAL, AGE: 52 YEARS, OCC: HOUSEHOLD, BOTH R/O 45, KENDUA MAIN ROAD, GARIA, KOLKATA, WEST BENGAL – 700084. 3. ARJUN S/O RACHAPPA KUMBAR, AGE: 43 YEARS, OCC: BUSINESS, R/O BARADOL, TQ: INDI, DIST: VIJAYAPURA – 586209. …RESPONDENTS (BY SRI. SANGANABASAVA B. PATIL, ADV. FOR R1 & R2; NOTICE TO R3 – SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 13TH DAY OF JUNE 2019 PASSED BY THE III ADDITIONAL SENIOR CIVIL JUDGE & MEMBER MACT XII AT VIJAYPURA IN MVC NO.327/2016 AND TO MODIFY THE COMPENSATION AWARDED AND TO PASS SUCH OTHER ORDERS AS THIS HON’BLE COURT DEEMS FIT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. IN M.F.A NO.201994/2019: BETWEEN: THE BRANCH MANAGER, ROYAL SUNDARAM INSURANCE CO. LTD., SUNDARAM TOWERS, 45 & 46 WHITES ROAD, CHENNAI – 600002. NOW REPRESENTED BY ROYAL SUNDARAM GEN. INSURANCE CO. LTD., NO.1, SUBRAMANIAM BUILDING, 2ND FLOOR, CLUB HOUSE ROAD, ANNA SALAI, CHENNAI – 600002. THROUGH MANAGER LEGAL. - 4 - MFA NO.201992/2019 AND CONNECTED MATTERS …APPELLANT (BY SMT. PREETI PATIL MELKUNDI, ADVOCATE) AND: 1. RAJESH KUMAR S/O BRIJ MOHAN, BAMMANAHALLI, AGE: 47 YEARS, OCC: ENGINEER, 2. SUNITA KUMARI W/O RAMESH KUMAR, BAMMANAHALLI, AGE: 43 YEARS, OCC: HOUSEHOLD, BOTH R/O 4TH MAIN, 8TH CROSS, COFFEE BOARD LAYOUT, KEMPAPURA, BANGALORE – 560001. 3. ARJUN S/O RACHAPPA KUMBAR, AGE: 43 YEARS, OCC: BUSINESS, R/O BARADOL, TQ: INDI, DIST: VIJAYAPURA – 586209. …RESPONDENTS (BY SRI. SANGANABASAVA B. PATIL, ADV. FOR R1 & R2; NOTICE TO R3 – SERVED) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO SET ASIDE THE JUDGMENT AND AWARD DATED 13TH DAY OF JUNE 2019 PASSED BY THE III ADDITIONAL SENIOR CIVIL JUDGE & MEMBER MACT XII AT VIJAYPURA IN MVC NO.328/2016 AND TO MODIFY THE COMPENSATION AWARDED AND TO PASS SUCH OTHER ORDERS AS THIS HON’BLE COURT DEEMS FIT UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE. IN M.F.A NO.200372/2020: BETWEEN: 1. IN M.F.A NO.200372/2020: BETWEEN: 1. RAJESH KUMAR S/O BRIJ MOHAN, AGE: 48 YEARS, OCC: ENGINEER, - 5 - MFA NO.201992/2019 AND CONNECTED MATTERS 2. SUNITA KUMARI W/O RAMESH KUMAR, AGE: 44 YEARS, OCC: HOUSE HOLD, BOTH ARE R/O: 4TH MAIN, 8TH CROSS, COFFEE BOARD LAYOUT, KEMPAPURA, BANGALORE-06. …APPELLANTS (BY SRI. SANGANABASAVA B. PATIL, ADVOCATE) AND: 1. ARJUN S/O RACHAPPA KUMBAR, AGE: 45 YEARS, OCC: BUSINESS, R/O BARADOL, TQ: INDI, DIST: VIJAYAPURA – 586101. 2. THE BRANCH MANAGER, ROYAL SUNDARAM INSURANCE CO. LTD., SUNDARAM TOWERS, 45 & 46, WHITES ROAD, CHENNAI – 600002. …RESPONDENTS (BY SMT. PREETI PATIL MELKUNDI, ADV. FOR R2) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD PASSED BY THE COURT OF III ADDITIONAL SENIOR CIVIL JUDGE & M.A.C.T. NO.XII VIJAYAPUR AT: VIJAYAPUR IN MVC NO.328/2016 DATED 13.06.2019 AND BE PLEASED TO ALLOW THE CLAIM PETITION BY GRANTING THE RELIEF AS PRAYED FAR BY THE APPELLANTS HEREIN. IN M.F.A NO.200373/2020: BETWEEN: 1. VIVEKANAND S/O VEERAYYA SALIMATH, AGE: 54 YEARS, OCC: LECTURER, 2. BHARATI W/O VIVEKANAND SALIMATH, AGE: 49 YEARS, OCC: HOUSE HOLD, - 6 - MFA NO.201992/2019 AND CONNECTED MATTERS BOTH ARE R/O: VIVEKANAND NAGAR, SINDAGI, DIST: VIJAYAPUR – 586101. …APPELLANTS (BY SRI. SANGANABASAVA B. PATIL, ADVOCATE) AND: 1. ARJUN S/O RACHAPPA KUMBAR, AGE: 44 YEARS, OCC: BUSINESS, R/O BARADOL, TQ: INDI, DIST: VIJAYAPURA – 586101. 2. THE BRANCH MANAGER, ROYAL SUNDARAM INSURANCE CO. LTD., SUNDARAM TOWERS, 45 & 46, WHITES ROAD, CHENNAI – 600002. …RESPONDENTS (BY SRI. SANGANAGOUDA V. BIRADAR, ADV. FOR R1; SMT. PREETI PATIL MELKUNDI, ADV. FOR R2) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD PASSED BY THE COURT OF III ADDITIONAL SENIOR CIVIL JUDGE & M.A.C.T. NO.XII VIJAYAPUR AT: VIJAYAPUR IN MVC NO.326/2016 DATED 13.06.2019 AND BE PLEASED TO ALLOW THE CLAIM PETITION BY GRANTING THE RELIEF AS PRAYED FAR BY THE APPELLANTS HEREIN. IN M.F.A NO.200376/2020: BETWEEN: 1. KALYAN S/O KSHITISH CHANDRA MONDAL, AGE: 55 YEARS, OCC: BUSINESS, 2. ANANYA W/O KALYAN MONDAL, AGE: 53 YEARS, OCC: HOUSE HOLD, BOTH ARE R/O: 45 KENDUA MAIN ROAD, GARIA, KOLKATA, WEST BENGAL – 700084. …APPELLANTS - 7 - MFA NO.201992/2019 AND CONNECTED MATTERS (BY SRI. SANGANABASAVA B. PATIL, ADVOCATE) AND: 1. ARJUN S/O RACHAPPA KUMBAR, AGE: 44 YEARS, OCC: BUSINESS, R/O BARADOL, TQ: INDI, DIST: VIJAYAPUR – 586101. 2. THE BRANCH MANAGER, ROYAL SUNDARAM INSURANCE CO. LTD., SUNDARAM TOWERS, 45 & 46, WHITES ROAD, CHENNAI – 600002. …RESPONDENTS (BY SRI. SANGANAGOUDA V. BIRADAR, ADV. FOR R1; SMT. PREETI PATIL MELKUNDI, ADV. FOR R2) THIS MISCELLANEOUS FIRST APPEAL IS FILED UNDER SECTION 173(1) OF MOTOR VEHICLES ACT, PRAYING TO MODIFY THE JUDGMENT AND AWARD PASSED BY THE COURT OF III ADDITIONAL SENIOR CIVIL JUDGE & M.A.C.T. NO.XII VIJAYAPUR AT: VIJAYAPUR IN MVC NO.327/2016 DATED 13.06.2019 AND BE PLEASED TO ALLOW THE CLAIM PETITION BY GRANTING THE RELIEF AS PRAYED FAR BY THE APPELLANTS HEREIN. THESE APPEALS HAVING BEEN RESERVED FOR JUDGMENT, COMING ON FOR “PRONOUNCEMENT OF ORDERS” THIS DAY, THE COURT, PRONOUNCED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE K NATARAJAN AND HON’BLE MR. JUSTICE VIJAYKUMAR A. PATIL - 8 - MFA NO.201992/2019 AND CONNECTED MATTERS CAV JUDGMENT (PER: THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL) These appeals are filed under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘MV Act’). The appeals filed are as under: i) MFA.No.201992/2019 is filed by the Insurance Company and MFA.No.200373/2020 is filed by the claimants against the judgment in MVC.No.326/2016. ii) MFA.No.201993/2019 is filed by the Insurance Company and MFA.No.200376/2020 is filed by the claimants against the judgment in MVC.No.327/2016. iii) MFA.No.201994/2019 is filed by the Insurance Company and MFA.No.200372/2020 is filed by the claimants against the judgment in MVC.No.328/2016. All these appeals are arising out of the common judgment and award dated 13.06.2019 passed in MVC.Nos.326-328/2016 by the III Additional Senior Civil - 9 - MFA NO.201992/2019 AND CONNECTED MATTERS Judge and MACT-XII, Vijayapura (hereinafter referred to as ‘Tribunal’). 2. Though the matters are listed for admission, with the consent of the learned counsels representing the parties, the same are taken up for final disposal. 3. The parties are referred to as per their ranking before the Tribunal for the sake of convenience. 4. Brief facts leading to filing of these appeals are that the legal heirs of the deceased have filed claim petitions before the Tribunal under Section 166 of the MV Act, seeking compensation for the accidental death of their dependents/children’s. It is averred that deceased were proceeding on a motor bike bearing registration No.KA- 14/W-4793 from Solapur Bypass Road towards Sindagi Bypass Road near Sanganabasava School. At that time, the mini goods vehicle bearing registration No.KA-28/C- 2575 came from opposite direction i.e., from Sindagi Bypass Road, driven by its driver in a rash and negligent - 10 - MFA NO.201992/2019 AND CONNECTED MATTERS manner and dashed to the motorcycle, resultantly all the motorcyclists sustaining grievous injuries and they succumbed to those injuries. The dependents filed the claim petition claiming that the accident is due to the negligence of the driver of the offending mini goods vehicle and they are entitled to a compensation for the untimely death of their children. 5. The respondents entered appearance before the Tribunal and filed detailed statement of objections denying the negligence of the driver of the offending vehicle. It is averred that the liability is subject to the fulfillment of the conditions of policy. It is further averred that the rider of the motorcycle was not in possession of a valid driving license and they were travelling without wearing helmet and more than two persons were riding on the motorcycle which is in violation of Section 129 of the MV Act. It is also averred that the age, claimed income of the deceased are false and without any basis, and hence, sought for dismissal of the claim petitions. - 11 - MFA NO.201992/2019 AND CONNECTED MATTERS 6. The Tribunal based on the pleading framed the issues, recorded the evidence, the claimants examined PW-1 to PW-5 and got marked exhibits P1 to P31. The respondent examined RW-1 and RW-2 and got marked exhibits R1 and R2. The Tribunal on appreciation of the evidence, assessed the income of all the deceased at Rs.20,000/- per month, deducted 50% towards personal and living expenses, applied 18 multiplier and awarded Rs.21,60,000/- towards loss of dependency, Rs.25,000/- towards loss of love and affection, Rs.20,000/- towards loss of estate and Rs.25,000/- towards transportation of dead body and funeral expenses, in all Rs.22,30,000/- with interest at the rate of 6% p.a. in each of the claim petitions by saddling the entire liability on the insurance company. Being aggrieved, the insurance company is in appeal, challenging the saddling of entire liability on it, as well as the quantum of compensation. On the other hand, the claimants are seeking for higher compensation. - 12 - MFA NO.201992/2019 AND CONNECTED MATTERS 7. Smt. Preethi Patil Melkundi, learned counsel appearing for the appellant-insurance company submits that the Tribunal has committed a grave error in saddling the entire liability on the appellant-insurance company without appreciating the fact that all the three deceased were travelling on one motorcycle without wearing a helmet which is in violation of Sections 128 and 129 of MV Act. Hence, proportionate liability is required to be saddled on the deceased. It is submitted that non-wearing of the helmet and triple riding clearly demonstrates negligence of the rider and such negligence of the rider of the motorcycle caused accidental death of the pillion riders on the motorcycle and hence, the insurance company cannot be held solely liable to pay the compensation. It is further submitted that the Tribunal has committed further error in assessing the income of all the deceased notionally at Rs.20,000/- per month as they were the students pursuing their education. Hence, the assessment of income of the deceased should be based on the notional income chart prepared by the Karnataka State - 13 - MFA NO.201992/2019 AND CONNECTED MATTERS Legal Services Authority and it should not be more than Rs.10,000/- per month. On these grounds, she seeks to allow the appeals filed by the Insurance Company by modifying the impugned judgment of the Tribunal. 8. Sri. Sanganabasava B. Patil, learned counsel appearing for the appellant-claimants supports the impugned judgment and award of the Tribunal insofar as saddling of entire liability on the insurance company and the finding on negligence. It is submitted that the deceased were 2nd year MBBS students and if they were alive, they would have a bright future and they would have earned more than Rs.50,000/- per month and contributed to their families. However, the Tribunal without any basis has assessed the income of the deceased notionally at Rs.20,000/- per month, which is on the lower side and is required to be enhanced appropriately. It is further submitted that the Tribunal has erred in not awarding any compensation under the head of loss of future prospects of the deceased which they are entitled at the rate of 40% of - 14 - MFA NO.201992/2019 AND CONNECTED MATTERS the assessed income of the deceased. It is also submitted that the award of compensation under the head of loss of consortium and conventional heads are contrary to the settled position of law. In support of his contention, he placed reliance on the following decisions: a) Bishnupriya Panda vs. Basanti Manjari Mohanty1 b) Mohammed Siddique and another vs. National Insurance Company Ltd., and others2 c) Mallanna vs. Mahadevappa and others3 9. He seeks to allow the appeals filed by the claimants by dismissing the appeals of the insurance company. 10. We have heard the arguments of learned counsel for the appellant - insurance company, learned counsel for the appellants – claimants, perused the material available on record and meticulously considered 1 Civil Appeal No.4911/2023 dated 04.08.2023 2 AIR 2020 SC 520 3 MFA.No.202001/2018 and connected appeals DD 11.08.2023 - 15 - MFA NO.201992/2019 AND CONNECTED MATTERS the contentions advanced and the material available on record. The point that arises for consideration in these appeals is as under: i) Whether the impugned judgment and award passed by the Tribunal call for interference in these appeals? 11. The pleading and evidence on record indicates that one Sri. Vishwas, Sri. Anindya and Sri. Avadeshkumar were proceeding on a motorcycle bearing registration No.KA-14/W-4793 from Solapur Bypass Road towards Sindagi Bypass Road on 03.01.2016. At that time, the driver of mini goods vehicle bearing registration No.KA- 28/C-2575 came from the opposite direction in a rash and negligent manner and dashed to the motorcycle resulting in grievous injuries to all the three riders of the motorcycle. Later, they succumbed to those injuries. Admittedly, the jurisdictional police on completion of investigation filed charge sheet against the driver of the mini goods vehicle for the negligence. The driver of the offending vehicle has been convicted by the I Additional - 16 - MFA NO.201992/2019 AND CONNECTED MATTERS JMFC, Vijayapura in CC.No.1836/2016. Considering the oral and documentary evidence on record, the Tribunal answered the issue with regard to the negligence in favour of the claimants. 12. The contention of the insurance company is that all the three riders of motorcycle were proceeding on the motorcycle bearing registration No.KA-14/W-4793 without wearing a helmet which is a clear violation of Sections 128 and 129 of the MV Act. It is trite law that if there is a violation of Sections 128 and 129 of the MV Act, the consequences under the law would follow. However, that itself would not establish the factum of negligence of the rider of the motorcycle. The parties to the proceedings are required to establish the actionable negligence by adducing legally acceptable evidence. In the instant case, the claimants have established the factum of negligence by oral and documentary evidence before the Tribunal. The Tribunal while considering the issues No.1 and 2 has recorded the clear finding that the driver of the mini goods - 17 - MFA NO.201992/2019 AND CONNECTED MATTERS vehicle was negligent and caused the accident in question. The said finding of the Tribunal is on appreciation of oral and documentary evidence on record and the said finding of the Tribunal is neither perverse nor contrary to the evidence on record calling for any interference. The contentions urged by the insurance company with regard to the shifting of partial liability on the claimant, has no merit and accordingly rejected. Our view gains support from the decision of the Hon’ble Supreme Court in the case of Mohammed Siddique and another referred supra. The relevant paragraphs of the judgment is extracted herein below: “13. But the above reason, in our view, is flawed. The fact that the deceased was riding on a motor cycle along with the driver and another, may not, by itself, without anything more, make him guilty of contributory negligence. At the most it would make him guilty of being a party to the violation of the law. Section 128 of the Motor Vehicles Act, 1988, imposes a restriction on the driver of a two wheeled motor cycle, not to carry more than one person on the motor cycle. Section 194C inserted by the Amendment Act 32 of 2019, - 18 - MFA NO.201992/2019 AND CONNECTED MATTERS prescribes a penalty for violation of safety measures for motor cycle drivers and pillion riders. Therefore, the fact that a person was a pillion rider on a motor cycle along with the driver and one more person on the pillion, may be a violation of the law. But such violation by itself, without anything more, cannot lend to a finding of contributory negligence, unless it is established that his very act of riding along with two others, contributed either to the accident or to the impact of the accident upon the victim. There must either be a causal connection between the violation and the accident or a causal connection between the violation and the impact of the accident upon the victim. It may so happen at times, that the accident could have been averted or the injuries sustained could have been of a lesser degree, if there had been no violation of the law by the victim. What could otherwise have resulted in a simple injury, might have resulted in a grievous injury or even death due to the violation of the law by the victim. It is in such cases, where, but for the violation of the law, either the accident could have been averted or the impact could have been minimized, that the principle of contributory negligence could be invoked. It is not the case of the insurer that the accident itself occurred as a result of three persons riding on a motor cycle. It is not even the case of the insurer that the - 19 - MFA NO.201992/2019 AND CONNECTED MATTERS accident would have been averted, if three persons were not riding on the motor cycle. The fact that the motor cycle was hit by the car from behind, is admitted. Interestingly, the finding recorded by the Tribunal that the deceased was wearing a helmet and that the deceased was knocked down after the car hit the motor cycle from behind, are all not assailed. Therefore, the finding of the High Court that 2 persons on the pillion of the motor cycle, could have added to the imbalance, is nothing but presumptuous and is not based either upon pleading or upon the evidence on record. Nothing was extracted from PW3 to the effect that 2 persons on the pillion added to the imbalance.” [Emphasis supplied] 13. The Co-ordinate Bench of this Court in the case of Mallanna referred supra considered the decision of this Court in the case of Bharma Kallappa Murashetti and others vs. Karamjeet Kaur and another4 and held that the violation of statutory provision itself cannot be the reason to come to the conclusion that there is a contributory negligence. The relevant paragraphs of the 4 ILR (2016) 5098 - 20 - MFA NO.201992/2019 AND CONNECTED MATTERS judgment of Bharma Kallapa Murashetti and others referred supra is extracted herein below: “8. A careful perusal of these judgments makes it clear that the very violation of a statutory provision would not lead to negligence causing the accident. A concrete evidence is necessary to establish the violation of the statutory provision, resulting in the negligence causing the accident. Only in such circumstances, proportionate contributory negligence could be attributable. No doubt three passengers were traveling in a motorcycle in violation of Section 128 of the Act, but no evidence is led by the insurer to establish that the said violation of the statutory provision itself was the cause for the accident to attribute contributory negligence on the part of the deceased. Mere taking a defence in the written statement would not be suffice to establish the factum of contributory negligence, it has to be supported by direct and corroborative evidence, which is admittedly missing in the present case, since the insurer has not made any attempt to adduce evidence to establish the contributory negligence on the part of the deceased. It is well settled principle that, for the insurer to avoid its liability, the breach of the policy must be so fundamental in nature that it brings contract to an - 21 - MFA NO.201992/2019 AND CONNECTED MATTERS end. The burden of proving rests on the shoulder of the insurer to establish this breach of the policy, which was fundamental in nature. That having not been done by the insurer, no contributory negligence can be attributed on the part of the deceased. On the other hand, the Police records very well establish that the negligence on the part of the driver of the truck was the cause for the accident. This vital material evidence was lost sight of by the Tribunal while fixing contributory negligence to the extent of 50% on the deceased. Thus, this Court is of the considered opinion that the Tribunal fixing 50% contributory negligence on the part of the deceased is not fit to be sustained. Accordingly, the entire negligence is fixed on the driver of the truck (offending vehicle) and the insurer of the offending vehicle-respondent No.2 shall be liable to satisfy the award." 14. In view of the settled position of law, we are of the considered view that the factum of negligence is required to be pleaded and proved before the Tribunal by the parties to the proceeding by proper pleading and legally acceptable evidence. Mere infraction of Sections 128 and 129 of the MV Act, would not ipso facto lead to contributory negligence. The Tribunal has rightly come to - 22 - MFA NO.201992/2019 AND CONNECTED MATTERS the conclusion that the driver of the mini goods vehicle was negligent and directed the appellant-insurance company to indemnify the loss caused. 15. Insofar as the quantum of compensation is concerned, the Tribunal notionally assessed the income of the deceased at Rs.20,000/- per month taking note of the fact that the deceased were 2nd year MBBS students of B.M. Patil Medical College, Vijaypura. Admittedly, the deceased were non-earning members of the claimants family and their income is required to be re-assessed notionally. The pleading and evidence on record, indicates that the deceased were pursuing their MBBS course in B.M. Patil Medical College, Vijayapura and they were academically sound. Keeping in mind the potential earning capacity of the deceased, we are of the considered view that the income of the deceased is required to be re- assessed. 16. This Court has also taken judicial notice of the fact that the students of MBBS course earns stipend during - 23 - MFA NO.201992/2019 AND CONNECTED MATTERS their studies. We have also considered the decision of the Hon’ble Supreme Court in the case of Bishnupriya Panda referred supra, wherein the income of the deceased - 4th year MBBS student for the accident year-2013 was notionally assessed at Rs.50,000/- per month. In the instant case, all the deceased were in 2nd year of the MBBS course at the time of accident and taking note of the stipend paid to the MBBS student for the relevant year, we have re-assessed the notional income of the deceased at Rs.30,000/- per month. 17. Having re-assessed the notional income of the deceased at Rs.30,000/- per month, the claimants are also entitled for an addition of 40% of the assessed income of the deceased towards the loss of future prospects as held by the Hon’ble Supreme Court in the case of National Insurance Company Limited vs. Pranay Sethi and others5. Each of the claimants are also entitled to Rs.40,000/- towards the loss of consortium as per the law 5 (2017) 16 SCC 680 - 24 - MFA NO.201992/2019 AND CONNECTED MATTERS laid by the Hon’ble Supreme Court in the case of Magma General Insurance Company Limited vs. Nanuram alias Chuhru Ram & others6. The claimants are also entitled to a compensation of Rs.15,000/- under the head of loss of estate and Rs.15,000/- towards transportation of dead body and funeral expenses. The claimants are also entitled to an interest at the rate of 6% from the date of petition till the realization of the compensation amount. The appropriate multiplier would be 18 and deduction towards the personal and living expenses would be 50% as all the deceased were bachelors. The compensation is re-assessed in all the claims as under: Loss of dependency: Rs.30,000/- + 40% (Rs.12,000/-) = Rs.42,000/- x 12 x 18 x 50% = Rs.45,36,000/-. 18. Thus, the claimants would be entitled to the modified compensation as under: 6 (2018) 18 SCC 130 - 25 - MFA NO.201992/2019 AND CONNECTED MATTERS Particulars Amount (Rs.) Loss of dependency 45,36,000 Loss of consortium 80,000 Loss of estate 15,000 Transportation of dead body and funeral expenses 15,000 Total Rs.46,46,000 Thus, the claimants in each claim petition are entitled to a total compensation of Rs.46,46,000/- as against Rs.22,30,000/- awarded by the Tribunal with interest at the rate of 6% p.a. from the date of petition till realization. 19. In the result, we proceed to pass the following : ORDER i. MFA.No.201992/2019, MFA.No.201993/2019 and MFA.No.201994/2019 are dismissed. ii. MFA.No.200373/2020, MFA.No.200376/2020 and MFA.No.200372/2020 are allowed in part. - 26 - MFA NO.201992/2019 AND CONNECTED MATTERS iii. The impugned judgment and award of the Tribunal dated 13.06.2019 passed in MVC.No.326/2016, MVC.No.327/2016 and MVC.No.328/2016 are modified and each of the claimants are entitled to a total compensation of Rs.46,46,000/- as against Rs.22,30,000/- awarded by the Tribunal with interest at the rate of 6% p.a. from the date of petition till realization. iv. The appellant-insurance company shall deposit the entire compensation amount with accrued interest in all the claim petitions before the Tribunal within a period of eight weeks from the date of receipt of certified copy of this judgment. v. On such deposit, the apportionment, deposit and disbursement shall be made in terms of award of the Tribunal. vi. The amount in deposit, if any, shall be transmitted to the Tribunal. - 27 - MFA NO.201992/2019 AND CONNECTED MATTERS vii. Draw modified award accordingly. viii. There shall be no order as to costs. Sd/- (K NATARAJAN) JUDGE Sd/- (VIJAYKUMAR A. PATIL) JUDGE MCR CT: PS