Case: Sri Dinesh Kumar. J. @ Dinesh J Vs. National Insurance Co. Ltd &amp; Others

3. On 18 June 2012, the appellant who was riding a motorcycle bearing registrationmet with an accident with a mini lorry belonging to the Second and Third respondents. The lorry was insured with the First respondent. As a result of the accident, the appellant suffered grievous injuries. The medical certificate issued by the Bangalore Baptist Hospital (Exhibits4) indicate spinal injuries.4. The appellant was twenty six years of age on the date of the accident and was working as a patroller in a private company. His income was Rs.11,000/per month. The appellant filed a claim for compensation before the Motor Accident Claims Tribunal, seeking compensation in the amount of Rupees 40 lakhs. The appellant examined a doctor (PW 5) who deposed that the extent of permanent physical disability of the spine was thirty four per cent. The tribunal did not accept that the disability was thirty four per cent, noting that the doctor in his cross examination admitted that he had not personally treated the appellant and that the medical evidence did not provide a cogent determination of the extent of disability. The Tribunal assessed the disability at ten per cent. The income of the appellant was taken at Rs 11,000 per month and a multiplier of seventeen was applied. The loss of income due to disability was computed at Rs 2,25,000. Medical expenses were computed at Rs 3,85,000. The Tribunal computed the total compensation (including conventional heads) at Rs 9 lakhs. However, the tribunal held that the appellant was guilty of contributory negligence to the extent of forty per cent and hence granted sixty per cent of Rs 9 lakhs amounting to Rs 5.40 lakhs. In appeal, the High Court has enhanced the award of medical expenses by a further sum of Rs 1,77,775 on the basis of the bills produced by the appellant. On the aspect of contributory negligence, the High Court affirmed the finding of the tribunal. The award of compensation of Rs 9 lakhs has been enhanced to Rs 10,77,775 and, after making a deduction of forty per cent towards contributory negligence, the appellant has been held entitled to an amount of Rs 6,46,665. All the respondents have been held to be jointly and severally liable.

Reasoning: 7. Both the tribunal, and in appeal in the High Court, have found fault with the appellant for not having produced his driving licence. The tribunal noted that the appellant had admitted in the course of histhat the road where the accident took place was a two way road and that on each side, three vehicles could pass at a time. A suggestion was put to the appellant that while trying to overtake another vehicle, he had approached the offending lorry from the right side as a result of which the accident took place. The appellant denied the suggestion. The award of the tribunal indicates that absolutely no evidence was produced by the insurer to support the plea that there was contributory negligence on the part of the appellant.8. Insofar as the judgment of the High Court is concerned, the Division Bench has placed a considerable degree of importance on the fact that there was no visible damage to the lorry but that it was the motor cycle which had suffered damage and that there was noWe are in agreement with the submission which has been urged on behalf of the appellant that plea of contributory negligence was accepted purely on the basis of conjecture and without any evidence. Once the finding that there was contributory negligence on the part of the appellant is held to be without any basis, the second aspect which weighed both with the tribunal and the High Court, that the appellant had not produced the driving licence, would be of no relevance.In view of the above position, we are of the view that the deduction of forty per cent which was made on the ground of contributory negligence is without any basis.