IMPORTANT POINT
The absence of a driving license does not automatically imply contributory negligence; there must be a factual basis for establishing negligence in motor accident claims.

JUDGMENT :

(Shoba Annamma Eapen, J.) :

This appeal is filed by the claimant in O.P (MV) No.1562 of 2014 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta. The respondents herein are the respondents before the tribunal.

2. According to the appellant/claimant on 28.11.2014 at about 05.00 pm, while the appellant was riding a motorcycle bearing Registration No.KL-25-F-4248 another motorcycle bearing Registration No.KL-03-P-5506 came from Pathanamthitta-Erumeli public road in a rash and negligent manner, hit against the motorcycle ridden by the appellant.. As a result of the accident, the appellant sustained serious injuries. The appellant approached the tribunal claiming a total compensation of Rs.11,70,250/-.

3. The respondent insurer filed a written statement, admitting the policy, but disputing the quantum of compensation claimed. Before the tribunal, no oral evidence was adduced on either side. Exts.A1 to A12 were marked on the side of the appellant/claimant and no evidence was marked on the side of the respondents. The tribunal, after analysing the pleadings and materials on record, awarded a sum of Rs.1,76,206/-as compensation under different heads with interest @ 9% per annum from the date of petition till realization, against the respondent being the insurer. Dissatisfied with the quantum of compensation awarded by the tribunal, the claimant has come up in appeal.

4. Heard the learned counsel for the appellant and the learned Standing Counsel for the respondent insurer.

5. The learned counsel for the appellant claims enhancement under the following head;

Compensation for permanent disability :-The learned counsel for the appellant submitted that Ext.A9 -disability certificate issued by the District Hospital, Kozhencherry assessed the disability of the appellant as 11%, but the tribunal reduced the same to 7%. The finding of the tribunal does not appear to be reasonable. There is no reason to doubt the genuineness of Ext.A9 -disability certificate issued by the Medical Board. Therefore, I fix the permanent disability of injured as 11%. In Malilikarjun v. Divisional Manager v. National Insurance Company & another [2013 KHC 4670], as regards the assessment of compensation in the case of children, the Hon’ble Supreme Court held thus :-“if the disability is above 10% and up to 30% to the whole body, Rs.3,00,000/-up to 60%, Rs.4,00,000/-up to 90%, Rs.5,00,000/-and above 90%, it should be Rs.6,00,000/-. Since this Court has fixed the permanent disability at 11%, the compensation payable for permanent disability is fixed as Rs.3,00,000/-. Thus, there will be an additional amount of Rs.2,00,000/-under the said head.

6. The learned counsel for the appellant further submitted that the tribunal found that there was 20% negligence on the part of the appellant. The reason for such a finding by the tribunal is that the appellant who drove the motorcycle was a minor aged 16 years at the time of the accident, and he was not having licence. Therefore, the tribunal fixed negligence at 20% on the part of the rider of the motorcycle, i.e., the appellant. The learned counsel for the appellant relied on a judgment in Sudhir Kumar Rana v. Surinder Singh and others [2008 (3) KHC 883], wherein it was held that question of contributory negligence would arise only when both parties are found to be negligent. It was further held that though the injured was not possessing any licence, in the absence of any finding of fact that he was driving the two wheeler rashly and negligently, he cannot be held liable for contributory negligence to the accident merely because he was driving without licence. In Sudhir Kumar Rana (supra), the appellant was aged 17 years. In the case on hand, the appellant is aged 16 years and it is an admitted fact that the charge sheet was drawn only against the 1st respondent. No negligence was found against the appellant. Merely because he did not have a driving licence, it cannot be said that he contributed to the