The importance of evidence in establishing negligence and assessing disability in motor accident compensation cases.

JUDGMENT :

M.G.S. Kamal, J.

1. MFA No. 7192/2018 has been filed by the Insurance Company, whereas MFA No. 7512/2018 has been filed by the claimant aggrieved by the judgment dtd. 4/7/2018 passed by the Motor Accident Claims Tribunal. Since both these appeals preferred under Sec. 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) arise out of the same accident as well as the same Judgment passed by the Tribunal, they are heard together and being decided by this common Judgment.

2. Facts giving rise to the filing of the appeals briefly stated are that on 20/11/2016 at about 3.30 p.m., the claimant was riding a motor-cycle bearing registration NO. KA-51-EP-2604 on Murandahalli cross, Kolar-Srinivaspur Main Road. At that time, Eicher Lorry bearing No. KA-07-A-6906 being driven by its driver at a high speed and in a rash and negligent manner, dashed against the motor-cycle ridden by claimant. As a result of the aforesaid accident, the claimant sustained grievous injuries and was hospitalized.

3. The claimant filed a petition under Sec. 166 of the Act seeking compensation. It was pleaded that the claimant spent huge amount towards medical expenses, conveyance, etc., and that he was treated as inpatient for seven days. It was further pleaded that the accident occurred purely on account of the rash and negligent driving of the offending vehicle by its driver. It was also pleaded that prior to the accident, the claimant was hale and healthy and was working as Agriculturist-cum-Milk Vendor and was earning Rs. 30,000.00 p.m. and that due to the accident, he is not able to walk, resulting in loss of earning. Thus, the claimant sought for compensation of Rs. 60,00,000.00 along with interest.

4. On service of notice, Respondent No. 1 remained exparte and Respondent No. 2 appeared through counsel and filed written statement. The Respondent No. 2 admitted having issued the policy in favour of Respondent No. 1. The other averments made in the petition were denied. It was pleaded that liability to indemnify the insured was subject to the driver holding a valid and effective driving licence. It was further pleaded that the accident was due to the rash and negligent driving of the claimant. It was also pleaded that the quantum of compensation claimed by the claimant is exorbitant. Hence, he sought for dismissal of the petition.

5. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence. The claimant examined himself as PW-1 and one Dr. Krishna Prasad has been examined as PW-2 and got exhibited documents namely Ex.P1 to Ex.P21. On behalf of the respondents, one witness by name Pradeep.D.S. was examined as RW.1 and a document, viz., Insurance Policy was marked as Ex.R1. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent driving of the offending lorry by its driver, as a result of which, the claimant sustained injuries. The Tribunal further held that the claimant is entitled to a compensation of Rs. 32,51,000/- along with interest at the rate of 9% p.a. and directed the Respondent No. 2-Insurance Company to deposit the compensation amount along with interest. In the aforesaid factual background, these appeals have been filed.

6. The learned counsel for the Insurance Company submitted that the Tribunal committed error in not attributing negligence on the part of the claimant and that the claimant was equally negligent in causing the accident.

7. Secondly, it is submitted that though the doctor P.W.2 has assessed the disability of the claimant at 41%, the Tribunal has erred in assessing the whole body disability at 70% without any basis.

8. Thirdly, the Tribunal erred in awarding the compensation under the head of cost and maintenance of artificial limb based on Ex.P21 which is only