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Judgment
This appeal is filed by the Insurance Company directed against the Judgment and Order passed by the Motor Accident Claims Tribunal, Bengaluru ( ''Tribunal'', for short] in MVC No.5152/2015.
The facts in brief are:
That the claimants filed petition before the Tribunal seeking compensation for the injuries sustained by him in the road traffic accident which occurred on 15.11.2015 alleging actionable negligence on the driver of the bus bearing registration No.KA-01-AA-7672 duly insured with the Appellant-Insurer. The Insurer appeared and contested the claim. The Tribunal extensively analyzing the material available on record, awarded total compensation of Rs.2,36,832/- with interest at 6% per annum from the date of the petition till deposit, fastening the liability on the appellant- insurer. Aggrieved by the same, the Insurer is in appeal.
Learned counsel appearing for the appellant- insurer has vehemently argued on two aspects. Firstly, it was contended that there was contributory negligence on the part of the driver of the car in causing the accident which was not properly appreciated by the Tribunal while fixing the liability on the driver of the bus insured with the appellant-insurer. Secondly, challenge is made to the quantification of the compensation awarded by the Tribunal as being exorbitant or excessive. Elaborating on these points, the learned Counsel submitted that the wound certificate do not disclose the fracture injuries sustained by the claimant. The quantum of compensation has to be reduced in proportionate to the injuries sustained by the claimant.
I have carefully considered the arguments advanced by learned counsel appearing for the appellant and perused the material on record.
The factum of accident and the injuries sustained by the claimant is not in dispute. It is the nature of the injuries that is disputed by the appellant, in as much as, reckoning the permanent functional disability to the extent of 10% to the whole body of the claimant. Firstly, it is well settled law that contributory negligence necessarily requires to be established by leading evidence. No evidence was let in by the Insurer to prove the accusation of contributory negligence on the part of the driver of the car [claimant]. A direct evidence is the relevant factor to prove the contributory negligence which is apparently lacking in the present case. The driver of the offending vehicle could have been the crucial evidence who is not examined. Forgetting about the other evidence, a mere accusation would not be suffice to absolve the liability of the insurer, in as much as, the aspect of contributory negligence is concerned. In the circumstances, this Court is of the considered opinion that there is no substance in the arguments of learned counsel appearing for the appellant on this point.
Secondly, the accident in question occurred on 15.11.2015. The claimant was working as Cook and Carpenter and it was contended that his monthly salary was Rs.20,000/-. In the absence of cogent evidence placed on record, the Tribunal determined the monthly income at Rs.7,000/- which appears to be reasonable since in identical circumstances, ordinarily, this Court is determining the monthly income at Rs.10,000/- where no cogent evidence is placed on record to establish the factum of income during the year 2015.
As regards the wound certificate, it is manifestly clear from the Exhibits relied upon by the Tribunal which has been considered and addressed in the impugned Judgment. Exhibit.P4 is the wound certificate and Exhibit.P6 is discharge summary. As per Exhibit.P4, the claimant has suffered frature of pelvic and left ilium. As per Exhibit.P6, the petitioner had taken treatment as inpatient from 20.11.2015 to 25.11.2015 at Victoria Hospital as well as Sathya Sai Hospital. Based on these documents, the Tribunal has assessed the functional disability to the extent of 10% to the whole body of the claimant rejecting the evidence of PW.2, Orthopedic Surgeon who has assessed the physical permanent functional disability to the extent of 22% to the whole body. Considering these aspects, this Court is of the view that the quantum of compensation awarded by the Tribunal is just and proper and do not warrant interference by this Court. Even on this point, the appeal fails.
Accordingly, the appeal stands dismissed as devoid of merits.
In view of dismissal of the appeal, IA No.1/2017 does not survive for consideration. Accordingly, IA No.1/2017 stands disposed of.
The amount in deposit shall be transferred to the jurisdictional Tribunal for disbursement.