SRI DINESH KUMAR J. @ DINESH J.versusNATIONAL INSURANCE CO. LTD. & ORS .

                           [2017] 12 S.C.R.~99


               SRI DINESH KUMAR J. @ DINESI-1 J.                                A
                                      I'.

               NATIONAL INSURANCE CO. LTD. & ORS .
                       .
                      (Ci\ ii Appeal No. 22966 of2017)
                            DECEMBER 15. 2017                                   B

       [DIPAK l\llSRA, C.H. A.l\I. KHANWILKAR AND
              DR. D.Y. CHAl\DUACH\_lD, .T.T.]
         Motor Vi:liicles Acr, 1988 - MNor 11ccidi:11t - Co111pc11.rntio11
- A.ppel!allf riding 1110torcyc/e 111t'f ll'ith accidnzt 1ritlz 111i11i lorry C
belonging to rhc second 1111d rhird respondents - Appellant Sl(/ji·red
/h'/'/11a11!'/I/ dist1/Jility - Co111putarion i~( co111pe11.rnrion at Rs. 9 lakhs
- Holl'ever. tribunal a11d High Court held t1ppc/lan1 guilty r~(
contributory neglige11ce to tire e.rte/I/ i~( ..fO'\J - Trib111111l mrnrded
Rs.5 ...fO laklzs ilS co111pc11satio11 - High Court e1zlwnccd it ro Rs.
6..+6,665/- - 011 appeal. held: High Court r<'lil'd 011 tlze .fizct that D
rlzae ll'as no .risible dwnage to the lorry bw it ll'as rlze motor cycle
1\'/1id1 lzad .1'11/jiTed damage and there \\'as 110 eye-1rit1~ess - Plea if
co111ri/J11111ry negligence H'as accepted purely 011 the basis 1~{
co11ject11re and 11·ithout any el'idence - Finding of contrilmtory
negligence /raring bn-11 held to be 11'i1hout any basis, no11-
                                                                                  E
produc1ion if driring license of no rel<'l'mzce - Tl1us. the da/11ctio11
11( -10% lllilde 011 tlw ground 1~( conlrilmtory neglige11ce 1rirlzout
any /Jasis - Appl'lla/I/ entitled to 111/dirional w11011nf 11( Rs.-1.60 lakhs
 ll'hich 1ras ll'ro11gly di.wl/01red by the courts below.
       Sudhir Kumar Rana r Surinder Singh (2008) 12 SCC
                                                                                 F
       436 : (2008] 7 SCR 871 - referred to.
                              Case Law Reference
       [2008] 7 SCR 871               referred to              Pura 6

                                                                                 G
     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 22966
of2017.
      From the Judgment ;rnd Order dated 13.04.2016 of the High
Court of Karnmaka .it Bangalore in MFA No.3242 of2015.
                                                                                 H
                                     499
500           SUPREME COURT REPORTS                        [2017] l 2 S.C.R.



A           C.B. Gururaj, K.P. Singh, Prakash Ranjan Nayak, Advs for the
      Appellant.
         The Judgment of the Court was delivered by
         Dr. D.Y. CHANDRACHUD, J. 1. Leave granted.
         2. The present appeal arises from a judgment of the High Court
B ofKarnataka dated 13 April 2016.
         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 Jorry belonging to the Second and Third respondents. The Jorry
  was insured with the First respondent. As a result of the accident, the
C 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
D before the MotorAccident 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
E 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. 1l1e loss of income due to disability
  was computed at Rs 2,25,000. Medical expenses were computed at Rs
F 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 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
G 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
H have been held to be jointly and severally liable.
     SRI DINESH KUMAR {. @ DINESH J. v. · NATIONAL .                              501 .
 INSURANCE CO.LTp. & ORS. [DR. D.Y. CHANDRACHUD, J.]

        5. The respondents have been served in these proceedings. None            A
 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          B
 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 is
 conjectural and is not worthy ofacctiptance: In this regard, reliance was
 placed on the judgment of this Cqun in Sudhir Kumar Rana v Surinder              C
 Singh'.
        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 i:oad whe~e the accident took place was a two way           D
 road and that on each side, three vehicles could pass at a time, A suggestion.
 was put to the appelhint that while trylrig .to overtake anoth~r v'?hicie, he
 had approached the offending lorry' from the right side as a result of
.which the accident took plac~. The appellant denied the suggestion. The
 award of the tribunal indicates that absolutely no evidence was produced
                                                                                  E
 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 visib1e damage to the lorry but that it was the
 motor cycle which had suffered damage and that .there was no eye-                F
 witness. We are in agreement with thesubnilssionwhich has been urged
 on behalf of the appellant that ·plea of contributory n~egligente was                    ..
 accepted purely on the basis of conjecture and without any evidence.
 Once the finding that there was contributory negligence on the part of
 the appellant is held ;t(> be w;itho'Ut any.basis, the second aspect which       G
 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 :         ·'
'<ZOOS) 12 sec 436
                                                                                  H
502                SUPREME COURT REPORTS                         [2017] 12S.C.R.



A            "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
B
             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 ...
c            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 arc 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
D     shall be entitled to an additional amount of Rs 4.60 lakhs which was
      wrongly disallowed.
             I 0. 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
 E    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
 F    order as to costs.


      Nidhi fain                                                      Appeal allowed.