JUDGMENT : S.R. Krishna Kumar, J. Both these appeals arise out of the impugned judgment and award dated 04.11.2017 passed in MVC No.232/2016 by the Senior Civil Judge and M.A.C.T. at Chincholi, partly allowing the claim petition filed by the claimants, thereby awarding compensation in a sum of Rs.20,75,000/together with interest at 6% p.a. from the date of petition till its realisation on account of the death of one Anand in a fatal road traffic accident that occurred on 18.09.2015 and directing the North East Karnataka Road Transport Corporation (NEKRTC) to pay the compensation in favour of the claimants. 2. MFA No.200134/2018 is filed by the NEKRTC, questioning its liability to pay compensation as well as the quantum of compensation awarded by the Tribunal. MFA No.201393/2018 is filed by the claimants seeking enhancement of compensation awarded by the Tribunal. 3. Brief facts giving rise to the above appeals are as follows : The claimants are the wife and children of the deceased Anand, who died in the aforesaid accident that occurred on 18.09.2015. The claimants filed a claim petition before the Tribunal inter alia contending that on 18.09.2015 at about 9.00 a.m., when the deceased was travelling on motorcycle bearing No. KA-38/Q-2496 on Kusarampally Kollar road, the NEKSRTC bus bearing No.KA-32/F-1429 came from the opposite direction in a high speed and rash and negligent manner and dashed against the said motorcycle resulting in the death of the said Anand. It was contended that the accident in question occurred due to the rash and negligent driving of the driver of the NEKRTC bus against whom a criminal case in Crime No.176/2015 was registered by the police. It was further contended that at the time of his death, the deceased, who was aged about 55 years was working as a Band Javan (Government servant), Revenue Department, Government of Karnataka and earning more than Rs.28,000/- per month. It was also contended that the deceased was the sole breadwinner of the family and the claimants being dependent on his income were entitled to compensation payable jointly and severally by the driver and owner of the NEKRTC, who were arrayed as respondent Nos.1 and 2 respectively before the Tribunal. 4. After service of notice, the respondents entered appearance and filed their objections, denying the averments made in the claim petition. 4. After service of notice, the respondents entered appearance and filed their objections, denying the averments made in the claim petition. It was contended that the accident occurred on account of the rash and negligent driving of the deceased Anand and the criminal case filed by the police against the driver of the NEKRTC bus was a result of collusion between the claimants and the police authorities. It was therefore contended that the claim petition was liable to be dismissed. 5. Based on the above pleadings, the Tribunal framed the following issues : “ISSUES 1. Whether the petitioners prove that Anand was died in the motor vehicle accident that occurred on 18-09-2015 at about 09.00 a.m, on KusarampalliKollur road, at Kusarampalli Ghat, Chincholi, on account of rash and negligent driving of NEKRTC Bus bearing Regn.No.KA-32/F-1429 by its driver as alleged? 2. Whether the petitioners are entitled for the compensation? If so, to what extent and from whom? 3. What order or Award ?” 6. During trial, claimant No.3 examined himself as PW.1 and documentary evidence at Exs.P1 to P8 were marked on behalf of the claimants. On behalf of the respondents, respondent No.1 examined himself as RW.1 and one document was marked as Ex.R1. 7. By the impugned judgment and award, the Tribunal answered issue No.1 in the affirmative, thereby holding that the accident was on account of the rash and negligent driving of the driver of the NEKRTC bus. In order to arrive at the said conclusion, at paragraphs 10 and 11 of the impugned judgment and award, the Tribunal took into account the unimpeached evidence adduced on behalf of the claimants viz., Ex.P1 (FIR) and Ex.P3 (Charge sheet) filed against the driver of the NEKRTC bus as well as Ex.P4 (Inquest Panchanama), Ex.P5 (Spot Sketch), Ex.P6 (P.M report) and Ex.P7 (M.V.A Report) and held that the accident was due to rash and negligent driving on the part of the NEKRTC bus and also that the death of Anand was on account of the grievous injuries sustained by him in the road traffic accident. 8. 8. Insofar as the quantum of compensation is concerned, the Tribunal answered issue No.2 partly in the affirmative in favour of the claimants, thereby awarding compensation in a sum of Rs.20,75,000/- together with interest at 6% p.a. Accordingly, the Tribunal proceeded to allow the claim petition, thereby directing the NERKTC to pay the aforesaid compensation in favour of the claimants. 9. Aggrieved by the impugned judgment and award, both the NEKRTC and the claimants have preferred the above appeals. 10. I have heard the learned counsel for the NEKRTC as well as learned counsel for the claimants. 11. Learned counsel for the NEKRTC submits that the Tribunal committed an error in coming to the conclusion that the accident was on account of the rash and negligent driving of the driver of the NEKRTC bus. It is contended that the Tribunal has failed to consider and appreciate the material on record which clearly established that while the driver of the NEKRTC bus was driving the vehicle in a cautious and careful manner, it was the deceased who was riding the motorcycle in a rash and negligent manner resulting in the accident in which he died. It is also contended that having regard to the rash and negligent driving on the part of the deceased Anand, the Tribunal committed an error in not attributing any contributory negligence to the said Anand and fastening the entire liability upon the NEKRTC by improper and erroneous appreciation of the material on record. It is further contended that the quantum of compensation awarded by the Tribunal is excessive and exorbitant and that the same deserves to be reduced by this Court. It is therefore contended that the impugned judgment and award passed by the Tribunal deserves to be set aside by this Court. 12. Per contra, learned counsel for the claimants in addition to supporting the impugned judgment and award insofar as it relates to fastening of the liability upon the NEKRTC to pay the compensation, would also submit that the quantum of compensation awarded by the Tribunal is meager and inadequate and that the same deserved to be enhanced by this Court. He would therefore request this Court to modify the impugned judgment and award, thereby awarding additional enhanced compensation in favour of the claimants. 13. We have given our anxious consideration to the rival submissions and perused the material on record. 14. He would therefore request this Court to modify the impugned judgment and award, thereby awarding additional enhanced compensation in favour of the claimants. 13. We have given our anxious consideration to the rival submissions and perused the material on record. 14. After hearing the learned counsel for the parties and perusing the material on record, the following points would arise for consideration in these appeals: (i) Whether the Tribunal was justified in coming to the conclusion that the accident in question was on account of the rash and negligent driving of the driver of the NERKTC bus without there being any contributory negligence on the part of the deceased Anand? (ii) Whether the quantum of compensation awarded by the Tribunal is just and proper? Point No.1: 15. Before we deal with the factual matrix involved in the instant case, it is essential to refer to the principles governing contributory negligence as held by the Apex Court as well as this Court. 16. In the case of North East Karnataka Road Transport Corporation vs. Smt. Vijayalaxmi and Others, ILR 2011 KAR 4845 (FB), the Full Bench of this Court held as under: “NEGLIGENCE 11. Negligence is conduct, not a state of mind-conduct which involves an unreasonably great risk of causing damage. Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission. It properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing. It is a question of law whether in any particular circumstances a duty of care exists. The question is was the defendant under any duty of care at all, and, if so, did he observe the standard required in the circumstances of the case? Foresight is the test for duty and remoteness. It is a characteristic of the definition of the tort of negligence that it does not refer to the scope of the protection it affords to the plaintiff but rather to the qualities of blameworthiness or fault to be attributed to the conduct of the defendant. Foresight is the test for duty and remoteness. It is a characteristic of the definition of the tort of negligence that it does not refer to the scope of the protection it affords to the plaintiff but rather to the qualities of blameworthiness or fault to be attributed to the conduct of the defendant. There is no liability for negligence unless there is in the particular case a legal duty to take care, and this duty must be one which is owed to the plaintiff himself and not merely to others. This duty of carefulness is not universal; it does not extend to all occasions and all persons and all modes of activity. The harm to the plaintiff’s interest which has in fact occurred must be of a kind against which it was the duty of the defendant to take precautions. In the absence of some existing duty the general principle is that there is no liability for a mere omission to act. The fundamental notion appears to be that the imposition of an obligation to take positive steps for the benefit of another requires that other should furnish something by way of consideration. The standard of conduct required by the common law is that of the reasonable man. The reasonable man is presumed to be free both from over-apprehension and from overconfidence. A reasonable man does not mean a paragon of circumspection. But he is also cool and collected and remembers to take precautions for his own safety even in emergency. So, while on the one hand an error of judgment may not amount to negligence, on the other hand the fact that it might happen to him is not necessarily a defence – even the most careful are sometimes careless. CONTRIBUTORY NEGLIGENCE 12. The doctrine that, if the plaintiff’s act was the proximate cause of the damage the plaintiff could not recover damage was a well-established principle of medieval law. In the sixteenth and seventeenth centuries the conception of negligence as a ground of liability worked its way into the common law. With the recognition of negligence as a ground of liability a practice grew up of alleging that a plaintiff could not recover because he was debarred by his own negligence. In the sixteenth and seventeenth centuries the conception of negligence as a ground of liability worked its way into the common law. With the recognition of negligence as a ground of liability a practice grew up of alleging that a plaintiff could not recover because he was debarred by his own negligence. The Rule of law is that if there is blame causing the accident on both sides, however small that blame may be on one side, the loss lies where it falls. When any person suffers damage as the result partly of his own fault and partly on the fault of any other person or persons, the claim in respect of that damage shall not be defeated by reason of the fault of the person suffered damage, but the damages recoverable in respect thereof shall be reduced to such extent as the Court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage. 13. The question of contributory negligence does not depend upon any breach of duty as between the plaintiff and the defendant. All that the defendant is obliged to prove is that the plaintiff failed to take reasonable precautions for his own safety in respect of the particular danger which in fact occurred, so that he thereby contributed to his own injury. This however is not to say that in all cases the plaintiff who is guilty of contributory negligence owes to the defendant no duty to act carefully. The governing principle is that the defendant must show that the plaintiff has failed to take reasonable care for his own safety in respect to the particular danger which has in fact occurred. The question whether the principle applies in any particular case is, as always, one of fact. Firstly, the law does not, in general, require any man to be careful of his own safety. What it does say is that a man who has negligently created a danger whereby another person is injured may plead as a way of avoiding liability that the injured person by his negligence contributed to create the danger. Firstly, the law does not, in general, require any man to be careful of his own safety. What it does say is that a man who has negligently created a danger whereby another person is injured may plead as a way of avoiding liability that the injured person by his negligence contributed to create the danger. Secondly, no question of operative contributory negligence arises in a case where the defendant proves that the plaintiff has failed to take precautions against a foreseeable danger which has not occurred and that those precautions, if taken, would have been effective to protect him against the unforeseeable danger which in fact occurred. The statement that the plaintiff must be shown to have failed to take proper precautions for his own safety against the particular danger which in fact occurred does not mean that the particular form in which the danger manifested itself should actually have occurred to his mind. It is sufficient if it is a danger of a particular class whose occurrence he should anticipate and take reasonable precautions to guard against him. It is necessary to consider not only the causative potency of a particular act, but also its blameworthiness, though culpability here, as elsewhere in the law of torts, means not so much moral blameworthiness as a departure from the standard of care of the reasonable man. The court must also consider a third factor – namely, what is just and equitable. Hence the precise percentage by which the award is reduced is a question of fact in each case. The Court should find and record the total damages which would have been awarded if the claimant had not been at fault. It is inappropriate to apply this principle when the responsibility of one of the parties is properly to be assessed at 100 per cent. The court cannot deal with minute percentage. It is a question of fact in each case whether the conduct of the plaintiff amounts to contributory negligence. The burden of proving the negligence of the plaintiff that contributed to the damage in such a way as to exonerate the defendant wholly or partially lies upon the defendant. The defendant must always establish such contributory negligence as well amount to a defence. The burden of proving the negligence of the plaintiff that contributed to the damage in such a way as to exonerate the defendant wholly or partially lies upon the defendant. The defendant must always establish such contributory negligence as well amount to a defence. When the court has to decide, that the case is one in which it is proper to apportion the loss between the parties, the result is that the plaintiff’s damages are reduced to such extent as the court thinks just and equitable having regard to the plaintiff’s share in the responsibility for the damage. 14. The contributory negligence has two facets. One in which two or more vehicles and drivers are involved in the accident. In such a case the question is who drove the vehicle in a rash and negligent manner. If all of them drove the vehicle in a negligent manner, who contributed to what extent in causing the accident. It is on the basis of such factual finding apportioning the blameworthiness on the drivers, the contributory negligence has to be assessed. To the extent of the percentage of negligence attributed to each driver, the owner of the vehicle and consequently if the vehicle is insured, the insurer would be liable to pay the compensation. If the driver himself is claiming compensation as third party, if his negligent act is also the cause of the accident, then the compensation payable to him would get reduced to the extent of the percentage of negligence attributed to him. 15. The second fact where the claimant is not involved in the accident in any manner, i.e., in driving the vehicle but arises out of breach of duty, resulting in injury on account of the accident. Failure to take reasonable care or precaution for his own safety while traveling in a motor vehicle, in respect of the particular danger, which in fact occurred, so that he thereby contributed to his own injury. It is this second aspect which is dealt with under Section 123 of the Act.” 17. Similarly, in the case of Mr. Devaraju T. vs. The United India Insurance Company Ltd., rep., by its Manager, Bangalore and Another, ILR 2014 KAR 2558, this Court held as under: “14. The contention of the insurer is that there was enough space for the claimant to ride his motor cycle without dashing it against the lorry. Similarly, in the case of Mr. Devaraju T. vs. The United India Insurance Company Ltd., rep., by its Manager, Bangalore and Another, ILR 2014 KAR 2558, this Court held as under: “14. The contention of the insurer is that there was enough space for the claimant to ride his motor cycle without dashing it against the lorry. Therefore, the Court below ought to have held that the rider of the motor cycle was also negligent to some extent. I have carefully perused the written statement filed by the insurer before the Tribunal. No such plea has been raised in the written statement, nor has the insurer let in any evidence. 15. The question of contributory negligence arises when there has been some act or omission on the claimant's part, which has materially contributed to the damage caused, and is of such a nature that it may properly be described as 'negligence'. The expression 'contributory negligence' means the failure by a person to use reasonable care for the safety of either himself or his property, so that he becomes blameworthy in part as an author of his own wrong. It is well settled that where, by his negligence, if one party places another in a situation of danger, which compels, other to act quickly in order to extricate himself, it does not amount to contributory negligence if that other acts in a way, which, with the benefit of hindsight, is shown not to have been the best way out of difficulty (See PRAMODKUMAR RASIKBHAI JHAVERI vs. KARMASEY KUNVARGI TAK AND OTHERS reported in 2002 ACJ 1720). In this case, the Apex Court, has relied on the decision in SWADLING vs. COOPER, (1931) AC 1, wherein it has been held that mere failure to avoid the collision by taking some extraordinary precaution does not in itself constitute negligence; the plaintiff has no right to complain if in the agony of the collision the defendant fails to take some step which might have prevented a collision unless that step is one which a reasonably careful man would fairly be expected to take in the circumstances. 16. A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. 16. A finding of contributory negligence turns on a factual investigation whether the plaintiff contributed to his or her own loss by failing to take reasonable care of his or her person or property. What is reasonable care depends on the circumstances of the case. The question of contributory negligence is to be decided on the same principle on which the question of defendant's negligence is decided. The standard of reasonable man is as relevant in the case of plaintiff's contributory negligence as in the case of defendant's negligence. The Apex Court in PRAMODKUMAR'S case (supra), was considering a similar case relating to contributory negligence. In the said case, the respondent did not contend before the Tribunal that there was contributory negligence on the part of the appellant, driver of the car. Taking note of this aspect of the matter it has been observed as under : "11. It is important to note that the respondents did not contend before the Tribunal that there was contributory negligence on the part of the appellant, the driver of the car. There was not even an allegation in the written statement filed by the respondents that the car driver was negligent and the accident occurred as a result of partial negligence of the car driver. During the trial of the case, there was an attempt on the part of the case, there was an attempt on the part of the respondents to contend that driver of the car was trying to overtake a truck which was going ahead of the car. The appellant car driver had also pleaded that the truck driven by the respondent No.2 was trying to overtake another car, which was going ahead of the truck. But these circumstances are not proved by satisfactory evidence. One expert had also given evidence in this case but he had not seen the accident spot. His opinion was based on the observation of the damaged parts of the two vehicles. The total width of the tarred portion of the road was 22 ft. and there were mud shoulders on either side having a width of 3 ft. It is proved by satisfactory evidence that the offending truck had come to the central portion of the road and there was only a 3 ft. width of the road on the left side of the car driven by the appellant. and there were mud shoulders on either side having a width of 3 ft. It is proved by satisfactory evidence that the offending truck had come to the central portion of the road and there was only a 3 ft. width of the road on the left side of the car driven by the appellant. In this factual situation, the High Court was not justified in holding that there was contributory negligence on the part of the appellant. It would, if at all, only prove that the appellant had not shown extraordinary precaution. The truck driven by the respondent No.2 almost came to the centre of the road and the appellant must have been put in a dilemma and in the agony of that moment, the appellant's failure to swerve to the extreme left to the road did not amount to negligence. Thus, there was no contributory negligence on his part especially when the respondent No.2, the truck driver had no case that the appellant was negligent." (underlining is by me) 17. A Full Bench of this Court in SMT. VIJAYALAKSHMI'S case (supra), has held that before the Tribunal is called upon to decide the question of contributory negligence, the plea that is available to the driver and conductor of the bus/driver, conductor and owner of the bus, they must specifically plead the contributory negligence and in support of the said plea, they must adduce evidence.” 18. In the case of Ashvinbhai Jayantilal Modi vs. Ramkaran Ramchandra Sharma and Another, (2015) 2 SCC 180 , while dealing with an identical situation involving a motorcycle and a truck, the Apex Court held as under: “13. With regard to the apportionment made by the Tribunal and the High Court, we are of the view, after considering the facts, evidence produced on record and circumstances of the case on hand, that there was no negligence on the part of the deceased. The courts below have failed to examine the facts of the case on hand with respect to the opinion of this Court given in Juju Kuruvila & Ors. v. Kunjujamma Mohan, (2013) 9 SCC 166 . 14. From the evidence produced on record, the two-wheeler of the deceased was dragged up to a stretch of about 2025 feet on the road after the collision with the offending truck. v. Kunjujamma Mohan, (2013) 9 SCC 166 . 14. From the evidence produced on record, the two-wheeler of the deceased was dragged up to a stretch of about 2025 feet on the road after the collision with the offending truck. We are of the considered view, that to be able to create this kind of enormous effect on the two-wheeler of the deceased, the offending truck must have been travelling at a fairly high speed and that its driver did not have sufficient control over his vehicle. The driver of the offending truck should have been aware that he was driving the heavy motor vehicle and taken sufficient caution. We do not see any direct evidence that shows negligence on the part of the deceased that led to the accident. Therefore, as per the principles laid down by this Court in the case referred to above in this aspect, the contributory negligence apportioned by the courts below on the part of the deceased is set aside”. 19. As can be seen from the principles laid down in the aforesaid decisions, contributory negligence is essentially a question of fact, which has to be decided on the basis of the pleadings and evidence of the parties. There is no gainsaying the fact that in the absence of pleadings no amount of evidence can be looked into by the Courts. It is equally well settled that in a case of contributory negligence, the burden is on the person asserting contributory negligence on the part of the driver of the other vehicle to plead and prove that the said driver was guilty of contributory negligence. It follows therefrom that in the absence of pleading and proof with regard to contributory negligence, the said contention urged by a party defending a claim petition is liable to be rejected. 20. In the facts of the instant case, as stated above, the Tribunal has recorded a finding of fact at paragraphs 10 and 11 of the impugned judgment that the accident in question occurred on account of rash and negligent driving of the driver of NEKRTC bus. 20. In the facts of the instant case, as stated above, the Tribunal has recorded a finding of fact at paragraphs 10 and 11 of the impugned judgment that the accident in question occurred on account of rash and negligent driving of the driver of NEKRTC bus. Upon reappreciation of the entire material on record, we are of the considered opinion that the following circumstances emerge, which would militate against the plea of the contributory negligence urged by the NEKRTC in the present appeals and which also clearly establish that there was no contributory negligence on the part of the deceased Anand in respect of the accident in question and that the same occurred solely on account of the rash and negligent driving of the driver of the NEKRTC bus are as under: a) Ex.P1 (FIR) and Ex.P3 (Charge sheet) have been filed only against the driver of the NEKRTC bus. (b) The Charge sheet has not been challenged by either the driver or NEKRTC. (c) The Spot Panchanama at Ex.P5 and the M.V.A Report at Ex.P7 along with the sketch annexed to it indicate that while the deceased was riding the motorcycle on the correct (left) side of the curved road, the bus was being driven on the wrong (right) side of the road. (d) The aforesaid Exs.P5 and P7 also indicate that the NEKRTC bus was being driven by crossing the notional median as can be seen from the said sketches. (e) No independent legal or acceptable evidence to counter or impeach the Charge sheet has been adduced by the NEKRTC. (f) There is no pleading with regard to contributory negligence by the NEKRTC in its written statement. (g) No satisfactory legal and acceptable rebuttal evidence is adduced by the NEKRTC to establish contributory negligence. (h) The undisputed circumstance that the bus being a huge/big vehicle, especially in comparison with the motorcycle, which was a small vehicle, there was an extra obligation/duty cast upon the driver of the bus to drive the vehicle in a more cautious and careful manner. (i) The undisputed fact that the accident occurred in the vicinity of a ghat section on a narrow road which was curved in shape making it incumbent upon the bus driver to drive the vehicle in an extremely careful and cautious manner. 21. (i) The undisputed fact that the accident occurred in the vicinity of a ghat section on a narrow road which was curved in shape making it incumbent upon the bus driver to drive the vehicle in an extremely careful and cautious manner. 21. The aforesaid facts and circumstances clearly establish that there was no contributory negligence on the part of the deceased Anand towards the accident. Under these circumstances, we are of the considered opinion that the Tribunal was fully justified in coming to the correct conclusion that the accident in question had occurred on account of the rash and negligent driving on the part of the bus driver and that the deceased Anand was not guilty of contributory negligence to any extent whatsoever. 22. Upon re-appreciation of the entire material on record, we are of the view that there is no illegality or infirmity in the impugned judgment and award with regard to the finding of the Tribunal on issue No.1, nor can the same be said to be perverse or arbitrary so as to warrant interference by this Court. Accordingly, we answer point No.1 against the insurance company and in favour of the claimants. Point No.2: 23. A perusal of the impugned judgment and award would indicate that while dealing with issue No.2 in relation to quantum of compensation, the Tribunal has awarded just and proper compensation, which is fully in accordance with the law laid down by the Apex Court in the case of Sarla Verma and Others Vs. Delhi Transport Corporation and another, 2009 (6) SCC 121 and in the case of National Insurance Company Limited vs. Pranay Sethi and others, (2017) 16 SCC 680 . 24. Upon re-appreciation of the entire material on record with regard to this aspect of the matter also, we are of the considered opinion that the compensation awarded by the Tribunal is just, fair and proper and the same does not warrant interference by this Court. Point No.2 is answered accordingly. 25. In view of the aforesaid discussion, we pass the following: ORDER (i) Both MFA No.200134/2018 and MFA No.201393/2018 are hereby dismissed. (ii) The impugned judgment and award dated 04.11.2017 passed by the Senior Civil Judge and M.A.C.T. at Chincholi in MVC No.232/2016 is hereby affirmed. (iii) The amount in deposit in MFA No.200134/2018 is directed to be transferred to the Tribunal for disbursement. (ii) The impugned judgment and award dated 04.11.2017 passed by the Senior Civil Judge and M.A.C.T. at Chincholi in MVC No.232/2016 is hereby affirmed. (iii) The amount in deposit in MFA No.200134/2018 is directed to be transferred to the Tribunal for disbursement. (iv) In view of disposal of the appeals, I.A.No.1/2020 filed in MFA No.200134/2018 does not survive for consideration and the same is dismissed.