Ramakrishna Pillai, J.@mdashThe claimant is in appeal. Allegedly, while the appellant was riding on the pillion of a motor bike, he was hit down by a bus, which was coming from the opposite direction. The second respondent was the driver of the bus. The bus was insured with the third respondent insurance company.
2. The claim was for a sum of Rs. 2 lakhs. Though the Tribunal quantified the amount of compensation as Rs. 44,500/- , 25% of the same was deducted, finding that there was negligence on the part of the rider of the bike by which the appellant was travelling. Thus, the compensation arrived at stood reduced to a sum of Rs. 33,375/- , as the appellant had not impleaded the owner, driver and insurer of the bike by which he was travelling. The said finding as well as the adequacy of compensation are under challenge in this appeal.
3. We have heard the submissions of the Learned Counsel for the appellant and the Learned Counsel for the third respondent insurance company. We have also perused the impugned award.
4. The accident occurred due to the collision between the motor bike, by which the appellant was travelling and the bus which was coming from the opposite direction. The appellant was riding on the pillion. Rider of the motor bike was one Shaji, who succumbed to the injuries sustained by him in the accident. His legal heirs also filed a claim petition. The learned Tribunal tried both these petitions jointly and passed a common award.
5. The third respondent insurance company, while admitting the policy, had contended that the deceased Shaji, who was riding the motor bike, was not having a valid driving licence. Merely because of the fact that the driving licence of the deceased was not produced, the learned Tribunal jumped into a conclusion that the deceased was not having a valid driving licence.
6. It is relevant to note that the third respondent did not file any petition seeking a direction to the claimants in other original petition, who are the legal heirs of the deceased Shaji to produce the driving licence, Finding that the deceased was not having a valid driving licence, the learned Tribunal held that the respondents would be liable to pay only 50% of the compensation awarded. However, at the decretal portion, 25% of the amount arrived at was deducted on account of the contributory negligence of the deceased.
7. It is trite that absence of driving licence shall not be the sole reason for arriving at a conclusion that the driver of the offending vehicle was negligent. Unless there is some cogent evidence to show that the accident had occurred due to the negligence of the driver, the learned Tribunal cannot come to a conclusion that there was contributory negligence on account of the absence of a valid driving licence. The burden is on the opposite party to prove that the driver was an inexperienced person and thus, he has contributed to the cause of the accident.
8. As the third respondent insurance company has failed in establishing that the accident was due to the negligence of the deceased Shaji, the finding of the learned Tribunal that he has contributed to the accident, is not legally sustainable and the same has to be interfered with. We set aside the finding of the learned Tribunal that there was contributory negligence on the part of the rider of the motor bike involved in the accident.
9. Medical records reveal that the appellant sustained open comminuted fracture to both bones of his right leg at lower 1/3rd. There were multiple abrasions also. The appellant was subjected to two surgical interventions, one on 22/09/2002 and the other on 25/09/2002. The appellant was hospitalized for nine days.
10. Towards compensation for pain and suffering the learned Tribunal has awarded a sum of Rs. 8,000/- , which appears to be on the lower side. Considering the nature and gravity of the injuries and the treatment undergone by the appellant, we are awarding an additional sum of Rs. 12,000/- as compensation for pain and suffering.
11. Towards loss of amenities, the appellant was awarded a sum of Rs. 4,000/- . Presumably, the appellant might not have been able to move out at least for a period of four months because of the injuries, treatment and consequential rest. Hence, we are of the view that the appellant has to be reasonably compensated for loss of amenities in life during the period of treatment and convalescence. Thus, we are awarding an additional sum of Rs. 11,000/- on that count.
12. The appellant was 26 years old. According to the Learned Counsel for the appellant, he was a grocery shop owner, earning a monthly income of Rs. 4,000/- . But, the learned Tribunal took his monthly income as Rs. 1,500/- . Presumably, the appellant might have been earning atleast Rs. 3,000/- per month by engaging himself in any job. Hence, towards loss of earning for the four months, the appellant is entitled to get a sum of Rs. 12,000/- . As the learned Tribunal has awarded only a sum of Rs. 4,500/- , we award to the appellant an additional sum of Rs. 7,500/- towards loss of earning.
13. Towards bystanders expenses, the appellant is entitled to get a sum of Rs. 1,800/- , at the rate of Rs. 200/- per day for nine days, during which he was hospitalised. Hence, we award to the appellant, the said amount.
14. The Learned Counsel for the appellant submitted that no amount was awarded by the learned Tribunal for permanent disability. The Learned Counsel for the third respondent insurance company, per contra, would submit that no evidence was adduced to prove the disability of the appellant. It was further submitted by the Learned Counsel for the third respondent that as the appellant was a business man, the injuries might not have affected his earning capacity. However, considering the fact that the appellant has sustained comminutted fracture to both bones of his right leg, undoubtedly the same shall cause some discomfort to the appellant at least for few years and the same would affect the quality of his life. So, we are of the definite view that the appellant has to be compensated for the same. Thus, we are awarding a sum of Rs. 15,000/- as compensation for permanent disability, on a rough and ready estimate.
15. Thus in total, the appellant is entitled to get an additional sum of Rs. 47,300/- .
16. The amount of compensation arrived at by the Tribunal was Rs. 44,500/- . As we have set aside the finding of the Tribunal that there was contributory negligence on the part of the rider of the motorbike, the appellant is entitled to get the entire amount arrived at, i.e, Rs. 44,500, as well as Rs. 47,300/- , the amount additionally awarded by us. The amount additionally awarded will carry interest at the rate specified in the award. In the result, the Appeal is allowed. The award shall stand modified as above.
