R. Yoganathan Vs. R. Karuppusamy and Others

(PRAYER : Appeal against the judgment and decree dated 21.11.2008 made in M.C.O.P.No.96 of 2006 of the Motor Accidents Claims Tribunal, (Principal Sub Court), Erode.)

The injured in a road accident, disputes the decision on the question of negligence and the quantum of compensation.

2. On 04.07.2005, the appellant sustained injury in a road accident. The Tribunal mulcted him with 10% of negligence. Accordingly, deducted 10% from the total compensation amount of Rs.2,20,502/- on the ground of contributory negligence and granted him Rs.1,98,154/-.

3. According to the learned counsel for the appellant, fastening of 10% negligence on the appellant is not in accordance with law. Further, the appellant was hospitalised for a considerable period, but no Attendant charges has been granted. Medical bills for Rs.40,000/- has been rejected without proper reason.

4. On the other hand, the learned counsel for the 3^rd respondent would contend that cogent and acceptable reason has been given by the Tribunal for rejecting certain medical bills. On the whole, what was granted itself is on the higher side.

5. I have considered the rival submissions, perused the materials on record and the impugned judgment of the Tribunal.

6. On 04.07.2005, at about 7.50 a.m., on the Perundurai - Erode main road, when the appellant was riding his motor cycle, the vehicle belonging to the 1^st respondent, insured with the 3^rd respondent insurance company, came driven by the driver of 1^st respondent in a rash and negligent manner and the road accident took place. In this accident, appellant had sustained multiple injuries. The Tribunal held that since at the time of accident the appellant was not holding a valid driving license to ride the two-wheeler he is guilty of contributory negligence to the extent of 10%.

7. Contributory negligence implies, contribution of material act by one and that is also responsible for the accident. Contributory negligence is not a matter of presumption or assumption. It has to be proved like any other fact by proper legal evidence.

8. Earlier, the view of the Courts is that by the mere non possession of driving license, the victim of a road accident was held to be guilty of contributory negligence. Later, the Courts have held that merely on account of not possessing driving license, the driver of the two wheeler or four wheeler, who is the victim of the road accident cannot be held to be guilty of contributory negligence, unless, he has contributed a material act by his act or deed and that also become a reason for the accident. But, in this case, it is a fact that at the time of accident, the appellant was not possessing the driving license. Apart from that there is no evidence to show that there was any rashness on the part of the appellant. In the circumstances, the Tribunal fastening the appellant with 10% of negligence is not correct in law.

9. Now, we will go to the quantum aspect. The accident was on 04.07.2005. At the time of accident, the appellant was 21 years old. Then he was studying B.Com. degree course. The Doctor certified his disability at 20%. The medical evidence shows that the appellant has sustained grievous injury. The Tribunal awarded him Rs.20,000/- towards disability. In the facts and circumstances, it appears to be on the lower side. It is increased to Rs.40,000/-.

10. The appellant had undergone surgical treatment. He was inpatient twice. Towards extra-nourishment Rs.13,000/- has been granted. It is increased to Rs.15,000/-. No compensation for Attendant charges has been given. Under this head, he is awarded Rs.6,000/-. Medical bills amount to the tune of Rs.1,08,267.56 has been granted by the Tribunal. As regards, disallowing of the medical bills for Rs.40,000/-, the Tribunal has given cogent and acceptable reasons. In other respects, we are not interfering with the award of the Tribunal.

11. The award amount is modified as under:-