The absence of a valid driving license does not automatically imply contributory negligence on the part of the claimant if the accident was caused by the negligence of the other party.

THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 30.01.2023 PASSED IN MVC NO. 850/2021 ON THE FILE OF THE VIII ADDITIONAL DISTRICT JUDGE AND MEMBER, MACT, TUMAKURU, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION.

THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MRS. JUSTICE P SREE SUDHA

ORAL JUDGMENT

Heard the arguments of both sides.

2. This appeal is filed against the award of the tribunal in M.V.C.No.850/2021 dated 30.01.2023. Injured/claimant met with an accident on 18.06.2021 and filed a petition claiming compensation of Rs.20,00,000/-. The Tribunal considered the entire evidence on record granted an amount of Rs.4,55,835/-. But he fixed up the contributory negligence of 15% on the part of the injured and 85% on the part of the Insurance Company and accordingly directed to deposit Rs.3,87,460/- with interest at the rate of 6% per annum from the date of petition till realization.

3. Aggrieved by the said order, he preferred an appeal and mainly contented that tribunal erred in deducting 15% of compensation towards contributory negligence. It is stated that the FIR and charge sheet are filed against the driver of the offending vehicle and respondent No.2 have not produced any evidence and there is no material evidence to fix the contributory negligence. But the Tribunal erroneously fixed the same and it is to be set aside. It is further stated that petitioner was doing metal business and earning Rs.60,000/- per month. But the Tribunal has taken income on lower side and as per the medical evidence, the petitioner sustained disability of 36% to the right lower limb and 12% to the whole body. But the tribunal has taken 10% disability and the amounts granted under other heads are meager. Therefore, requested for enhancement of the compensation.

4. Though learned counsel for the petitioner stated that he was earning Rs.60,000/- per month. He has not filed any income proof. As he met with an accident in the year 2021. The tribunal has rightly considered Rs.15,000/- notional income as per the chart prepared by Karnataka State Legal Services Authority and it is confirmed. He was aged 51 years and the relevant multiplier is '11'. The petitioner filed Ex.P3-wound certificate and Ex.P8 Discharge summary and examined the Doctor as PW-2. He is an orthopedic surgeon, he stated that petitioner sustained fracture of proximal tibia and fracture of head of tibia, which are grievous in nature and he assessed the whole body disability as 12% and right lower limb disability as 36% and in the cross examination he stated that he is a treated Doctor and admitted that the fracture is united and he issued disability certificate and also estimated the cost of another surgery as Rs.45,000/- but the learned counsel for the respondent stated that as the fractures are united, the tribunal has rightly considered the disability as 10% and it is to be confirmed. However considering the nature of injuries, medical evidence on record, this Court finds it reasonable to take 1/3 rd of 36% i.e., 12% disability. Thus, loss of future earning capacity comes to Rs.2,37,600/- (15,000x12x 11 x 12%).

5. The tribunal has already granted ₹ 87,835/- towards medical expenses and the said amount is confirmed. He was admitted in the hospital for a period of 7 days. Considering the nature of injuries, period of hospitalization and other relevant factors. This Court finds it reasonable to grant an amount of Rs.50,000/- for pain and suffer