Contributory negligence cannot be presumed and must be established by cogent evidence.

The deceased, Samadul Alam Hoque, died in a motor-vehicle accident on 30 September 2013 near Universal Oil Depot on National Highway 37, under Dergaon Police Station.

He was riding a motorcycle from Dergaon Chariali towards Jorhat when an oil tanker bearing registration No. NL-01/D-7377, allegedly driven rashly and on the wrong side of the road, collided with him.

The deceased’s parents and brother instituted MAC Case No. 25/2014 before the Motor Accident Claims Tribunal, Golaghat.

The Tribunal awarded Rs.21,27,792 with interest at 6% per annum from the date of filing of the claim petition.

The insurer appealed under Section 173 of the Motor Vehicles Act, 1988, contending that the deceased had contributed to the accident and that liability should be apportioned between the two vehicles.

The claimants filed Cross-Objection No.30/2022 seeking enhancement on the basis of the latest income-tax return, filial consortium, enhanced conventional heads, and a higher rate of interest.

The appeal was considered under Section 173 of the Motor Vehicles Act, 1988.

The Court held that a plea of contributory negligence must be established by the party asserting it through cogent, direct, or corroborative evidence and cannot rest on presumption or surmise, applying Jiju Kuruvila v. Kunjujamma Mohan, (2013) 9 SCC 166.

For income assessment, the Court relied on ICICI Lombard General Insurance Co. Ltd. v. Ajay Kumar Mohanty, (2018) 3 SCC 686, recognising that an average of income-tax returns may properly be adopted.

For filial consortium, it applied Magma General Insurance Co. Ltd. v. Nanu Ram, (2018) 18 SCC 130, and United India Insurance Co. Ltd. v. Satinder Kaur, (2021) 11 SCC 780.

The Court also relied on Pranay Sethi, (2017) 16 SCC 680, for future prospects and periodic enhancement of conventional heads.

Following Oriental Insurance Co. Ltd. v. Niru, (2025) INSC 822, it held that interest could be awarded on the entire compensation, including the amount attributable to future prospects.

The Court found that the evidence of CW-1 and CW-2 established that the deceased was travelling on his own side, whereas the oil tanker was being driven at excessive speed and on the wrong side of the road.

The insurer produced no evidence demonstrating any negligent act or omission by the deceased.

The argument that the deceased ought to have anticipated and avoided the tanker was treated as a presumption unsupported by evidence; consequently, contributory negligence could not be inferred merely because the collision involved vehicles travelling in opposite directions.

On quantum, the Court upheld the Tribunal’s averaging of the two income-tax returns—Rs.1,51,300 and Rs.1,81,700—resulting in annual income of Rs.1,66,500, or monthly income of Rs.13,875.

Applying 40% future prospects and deducting 50% for personal expenses, it calculated the loss of dependency using the multiplier of 18.

It further awarded filial consortium to the deceased’s mother and enhanced the amounts for loss of estate and funeral expenses by 10%.

In light of Niru, the Court held that interest was payable on the entire award, but considered 7.5% per annum fair and justified rather than the 9% sought by the claimants.

The cross-objection was partially allowed.

The claimants were held entitled to compensation of Rs.21,74,782, with simple interest at 7.5% per annum from the date of filing of the claim petition until realization.

The insurer was directed to deposit the awarded amount after deducting Rs.10,63,896 already withdrawn by the claimants, within six weeks, for subsequent disbursement after verification and identification.

The appeal and cross-objection were accordingly disposed of.