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REPORTABLE      

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  22966 OF 2017 [Arising out of SLP (C) No. 27398 of 2016]

SRI DINESH KUMAR. J. @ DINESH J,          .....APPELLANT                               

Versus  

NATIONAL INSURANCE CO. LTD & ORS.     .....RESPONDENTS                             

J U D G M E N T

Dr D Y CHANDRACHUD, J

1 Leave granted.

2 The  present  appeal  arises  from  a  judgment  of  the  High  Court  of

Karnataka dated 13 April 2016.

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3 On 18  June  2012,  the  appellant  who  was  riding  a  motorcycle  bearing

registration No.KA-04/EL-4782 met with an accident with a mini lorry  belonging

to  the  Second  and  Third  respondents.  The  lorry  was  insured  with  the  First

respondent. As a result of the accident, the appellant suffered grievous injuries.

The medical certificate issued by the Bangalore Baptist Hospital (Exhibits P-13

and P-14) indicate spinal injuries.  

4 The appellant was twenty six years of age on the date of the accident and

was working as a patroller in a private company. His income was Rs.11,000/- per

month. The appellant filed a claim for compensation before the Motor Accident

Claims Tribunal, seeking compensation in the amount of Rupees 40 lakhs. The

appellant adduced the evidence of a doctor (PW 5) who deposed that the extent

of permanent physical disability of the spine was thirty four per cent. The tribunal

did not accept that the disability was thirty four per cent, noting that the doctor in

his cross examination admitted that he had not personally treated the appellant

and that  the medical  evidence did not  provide a cogent  determination of  the

extent  of  disability.  The Tribunal  assessed the  disability  at  ten  per  cent.  The

income of the appellant was taken at Rs 11,000 per month and a multiplier of

seventeen was applied. The loss of income due to disability was computed at Rs

2,25,000.  Medical  expenses  were  computed  at  Rs  3,85,000.   The  Tribunal

computed the total compensation (including conventional heads) at Rs 9 lakhs.

However, the tribunal held that the appellant was guilty of contributory negligence

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to the extent of forty per cent and hence granted sixty per cent of Rs 9 lakhs

amounting to Rs 5.40 lakhs. In appeal, the High Court has enhanced the award

of medical expenses by a further sum of Rs 1,77,775 on the basis of the bills

produced by the appellant. On the aspect of contributory negligence, the High

Court affirmed the finding of the tribunal. The award of compensation of Rs 9

lakhs has been enhanced to Rs 10,77,775 and, after making a deduction of forty

per cent towards contributory negligence, the appellant has been held entitled to

an amount of Rs 6,46,665.  All the respondents have been held to be jointly and

severally liable.

5 The  respondents  have  been  served  in  these  proceedings.  None  has

appeared.

6 On behalf of the appellant, it has been submitted that both the tribunal and

the High Court were manifestly in error in holding the appellant to be guilty of

contributory negligence to the extent of forty per cent. It has been submitted that

the tribunal as well as the High Court proceeded on the erroneous premise that

since  the  appellant  had  failed  to  produce  the  driving  licence,  an  adverse

inference on  the  aspect  of  contributory  negligence would  have to  be  drawn.

Moreover, it was submitted that the entire discussion on contributory negligence

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is conjectural and is not worthy of acceptance. In this regard, reliance was placed

on the judgment of this Court in Sudhir Kumar Rana v Surinder Singh1.

7 Both the tribunal, and in appeal in the High Court, have found fault with the

appellant for not having produced his driving licence. The tribunal noted that the

appellant  had  admitted  in  the  course  of  his  cross-examination  that  the  road

where the accident took place was a two way road and that on each side, three

vehicles could pass at a time. A suggestion was put to the appellant that while

trying to overtake another vehicle, he had approached the offending lorry from

the right side as a result of which the accident took place. The appellant denied

the suggestion. The award of the tribunal indicates that absolutely no evidence

was produced by the insurer  to  support  the plea that  there was contributory

negligence on the part of the appellant.  

8 Insofar as the judgment of the High Court is concerned, the Division Bench

has placed a considerable degree of importance on the fact that there was no

visible damage to the lorry but that it was the motor cycle which had suffered

damage  and  that  there  was  no  eye-witness.  We  are  in  agreement  with  the

submission  which  has  been  urged  on  behalf  of  the  appellant  that  plea  of

contributory  negligence  was  accepted  purely  on  the  basis  of  conjecture  and

without any evidence. Once the finding that there was contributory negligence on

1.       (2008) 12 SCC 436

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the part of the appellant is held to be without any basis, the second aspect which

weighed both with the tribunal and the High Court, that the appellant had not

produced the driving licence, would be of no relevance. This aspect has been

considered in a judgment of this Court in  Sudhir Kumar (supra) where it was

held as follows :  

“9.If a person drives a vehicle without a licence, he commits an offence. The same, by itself, in our opinion, may not lead to a finding of negligence as regards the accident. It has been held by the courts below that it was the driver of the mini truck who was driving rashly and negligently. It is one thing to say that the appellant was not possessing any licence but no finding of fact has been arrived at that he was driving the two-wheeler rashly and  negligently.  If  he  was  not  driving  rashly  and  negligently which contributed to the accident, we fail to see as to how, only because he was not having a licence, he would be held to be guilty of contributory negligence…

10. The matter might have been different if by reason of his rash and negligent driving, the accident had taken place.”

9 In view of the above position, we are of the view that the deduction of forty

per cent which was made on the ground of contributory negligence is without any

basis. Accordingly, we direct that the appellant shall be entitled to an additional

amount of Rs 4.60 lakhs which was wrongly disallowed.

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10 We direct that the respondent shall accordingly pay an additional amount

of Rs 4,60,000, over and above the amount which has been awarded by the High

Court.  This  amount  shall  also carry  interest  at  the rate  of  eight  per  cent  per

annum  as  awarded  by  the  High  Court,  from  the  date  of  the  petition  until

realization.  The  insurer  shall  deposit  the  amount  before  the  tribunal  within  3

months which shall be released to the appellant.

11 The appeal is allowed in the above terms. There shall be no order as to

costs.                       

……......................................CJI                                                                          [DIPAK MISRA]                       

  .................................................J                                                                             [A M KHANWILKAR]

                                                            ................................................J                                                                                     [Dr D Y  CHANDRACHUD]

New Delhi December 15, 2017