The court ruled that lack of a driving license does not imply the claimant's negligence and emphasized the importance of actual income assessment over notional standards in determining compensation.

JUDGMENT :

SHIVASHANKAR AMARANNAVAR, J.

1. Though this appeal is listed for admission, with the consent of learned counsel for both sides, it is taken up for final disposal. This appeal is filed by the appellant-claimant challenging the judgment and award dated 23.05.2022 passed in MVC No.1060/2020 by the Prl. Senior Civil Judge & MACT-V, Vijayapura, (hereinafter referred to as ‘the Tribunal’ for short) for setting aside the contributory negligence and enhancement of compensation.

2. Brief facts leading to filing of claim petition are as under:

That on 18.09.2020 at about 5:00 a.m. the claimant was riding the motorcycle bearing No.KA-29/EB-4983 towards Mudhol from Bilagi, at that time, one Car bearing No.KA-41/Z-8634 came from opposite direction in a high speed and in a rash and negligent manner and dashed to the motorcycle of the claimant. As a result, the claimant sustained grievous injuries and during treatment his right leg below knee has been amputated. The claimant filed claim petition and Tribunal has assessed the compensation and passed the award and also held that claimant has contributed 50% towards the accident.

3. Heard learned counsel for the appellant and learned counsel for respondent No.2-Insurance Company.

4. Learned counsel for the appellant-claimant would contend that the Tribunal has erred in taking the contributory negligence on the part of the claimant at 50%. The charge-sheet has been filed against the driver of the Car for offence under Section 279 , 338 of IPC and charge-sheet filed against the claimant is for offence under Section 3 read with Sections 181 , 146, 196 of MOTOR VEHICLES ACT , 1988 (for short, ‘the M.V.Act’). Considering the same, there is no rash and negligent driving on the part of the rider of the motorcycle, who is claimant.

5. He further submits that the accident has taken place on the left side of the road on which the claimant was riding his motorcycle and the same can be seen in the sketch enclosed to Ex.P3-Mahazar that itself indicate that accident occurred due to entire negligence on the part of the driver of the Car.

6. He further contended that the claimant was working in Nirani Sugars Limited as Centrifugal Operator-B and he is drawing gross salary of Rs.18,000/- and net salary of Rs.17,301/- as per Ex.P12 and in order to show that he is working in Nirani Sugars, he has produced Ex.P16 his identity card issued by Nirani Sugars.

7. He further submits that as the claimant is working as Centrifugal Operator in Nirani Sugars, he cannot be equated with a coolie entitling notional income as per chart prepared by the KSLSA.

8. He further submits that the Doctor-PW.2, who has issued disability certificate-Ex.P13 has stated that the claimant is having disability of upper and lower limb to the extent of 75% and the Tribunal erred in taking disability at 51%. The claimant’s right leg below knee has been amputated and same can be seen in photographs-Ex.P11. He further submits that claimant has been removed from service due to the injuries sustained by him.

9. He further submits that the compensation awarded for pain and suffering; loss of income during laid up period; loss of amenities are on the lower side, which needs to be enhanced. He further submits that as the right leg below knee has been amputated, he requires artificial limb, for that he requires to be awarded compensation. The Tribunal has not added future prospects even though the disability is more that 50%. With these, he prayed to allow the appeal.

10. Learned counsel for respondent No.2-Insurance Company would contend that, charge-sheet has been filed against the rider of the motorcycle for offence under Section 3 read with Section 181 and 146 read with Section 196 of M.V.Act. The said aspect itself shows that the rider of the motorcycle was not holding the driving licence and his vehicle was not insured as he was not holding driving licence, he was contributed to the extent of 50% as rightly held by the Tribunal. He further submits