S.Mahendran @ Baskaran Vs R.Sivaperumal

PRAYER: Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, to allow the appeal and enhance compensation in M.C.O.P.No.4250 of 2018 on the file of the Motor Accidents Claims Tribunal/Special Sub Court II, Cuddalore.

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For Appellant : M/s.Ramya V.Rao For R2 : M/s.R.Rathna Thara For R1 : Notice Dispensed With

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C.M.A.No.507 of 2025

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J U D G M E N T

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Not satisfied with the quantum of compensation awarded by the Motor Accident Claims Tribunal and aggrieved by the fixation of contributory negligence, the injured/claimant has come by way of this appeal.

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It is the case of the appellant/claimant that on 10.09.2018, the appellant/claimant was proceeding as a pillion rider in the TVS XL Super Moped bearing Registration No.TN-31-BD-6729 belongs to the 1^st respondent from North to South. The Driver of the two wheeler had driven the vehicle in a rash and negligent manner and dashed against a milestone. As a result of the accident, the claimant was thrown out of the vehicle and sustained fractures and multiple grievous injuries all over the body. Therefore, a claim petition was filed against the respondents, who are the owner and insurar of the two wheeler, seeking compensation of Rs.10,00,000/-.

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Since the 1^st respondent was set exparte before the Tribunal, notice to the 1^st respondent is dispensed with. The claim petition was resisted by

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the 2^nd respondent-Insurance Company on the ground that the driver of the vehicle did not possess valid driving licence at the time of accident. The 2^nd respondent also raised a plea that the claimant did not wear helmet and he was under the influence of alcohol at the relevant point of time and hence, the claim petition was not at all maintainable.

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Before the Tribunal, the appellant/claimant was examined as PW.1 and Assistant of the 2^nd respondent-Insurance Company was examined as RW.1. On behalf of the appellant/claimant, 8 documents were marked as Exs.P1 to P8. On behalf of the 2^nd respondent/Insurance Company, 7 documents were marked as Exs.R1 to R7. The Disability Certificate issued by the Medical Board to the claimant was marked as Ex.C1.

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The Motor Accident Claims Tribunal, on appreciation of evidence available on record, came to the conclusion that though the accident had occurred due to the rash and negligent driving of the two wheeler, the claimant also contributed to the accident by consumption of alcohol and his failure to wear helmet. Accordingly, the Tribunal fixed 30% contributory negligence on the claimant and awarded a compensation of Rs.2,40,000/-.

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Aggrieved by the fixation of contributory negligence on the claimant and also the quantum of compensation, the claimant has come by way of this appeal.

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The learned counsel appearing for the appellant would submit that the claimant was a pillion rider at the time of accident. Therefore, the consumption of alcohol even assuming true could not be treated as a contributory factor for accident. The learned counsel further submits that the claimant received grievous injury only in his face. Therefore, non-wearing of helmet may not impact on the injury suffered by him. Therefore, the learned counsel appearing for the appellant seeks fixation of 30% contributory negligence on the claimant by the Tribunal shall be set aside.

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On the question of quantum of compensation, the learned counsel submits that the amount of Rs.5,000/- awarded per percentage of disability is very much on lower side. The learned counsel further submits that the amount awarded by the Tribunal under various other heads like loss of income during treatment period, extra nourishment, attender charges, pain and sufferings, transport expenses, loss of comfort and amenities, loss of

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expectation of life, loss of marital prospects are very much on lower side.

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The learned counsel appearing for the 2^nd respondent-Insurance Company would submit that the claimant contributed to the accident by his failure to wear helmet and also by consumption of alcohol. Therefore, the Tribunal was justified in fixing 30% contributory negligence on the claimant. The learned counsel further submits that the award passed by the Tribunal on various other heads are justifiable in the facts and circumstances of the case.

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The Discharge Summary marked as Ex.P3 would indicate that the claimant suffered fracture in nasal bone, medial wall of orbit and depressed frontal bone fracture. The fracture in nasal bone and medial wall of orbit has no relationship with the failure of the victim to wear helmet. As far as the fracture in the frontal bone is concerned, depending on the nature of the helmet worn by the victim, the frontal bone will get affected. Therefore, it is clear that even if helmet was properly worn by the victim, the fracture injury suffered by him in nasal bone and medial wall of orbit cannot be avoided.

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PW.1 was cross examined with regard to the fact that he was

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under the influence of alcohol at the relevant point of time. The relevant portion of cross examination of PW.1 reads as follows:-

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“rhiy Xuj;jpypUe;J iky; fy;ypy; ghuj;jpgd; Xl;or;brd;w ,Urf;fu thfdk; nkhjp tpgj;J Vw;gl;lJ vd;why; rupjhd;/ tpgj;J rkaj;jpy; Xl;Leu; ghu;j;jpgDk;. ehDk; kJ mUe;jp epjhdkpHe;J rhiyapd; ,lJ gf;fj;jpy; ,Ue;j iky; fy;ypy; nkhjp tpgj;J Vw;gl;lJ vd;why; rupjhd;/ k/j/rh/2 tpgj;J gjpntL efypy; ehd; kJ mUe;jp ,Ue;J thrid moj;jjhf kUj;Jtu; Fwpg;gpl;L ,Uf;fpwhu; vd;why; rupay;y/ ehd; Fof;ftpy;iy/”

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Therefore, in the earlier part of the cross examination, PW.1 admitted that he and the driver of the vehicle consumed alcohol and the accident had occurred only due to the consumption of alcohol by the driver. In the later portion of the evidence, he denied the suggestion that he was under the influence of alcohol.

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In view of the categorical admission made by PW.1 that accident

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had occurred due to the consumption of alcohol by the driver, this Court also feels some percentage of contributory negligence shall be fixed on the driver of the vehicle. However, no material produced before this Court to show that percentage of alcohol present in the blood sample of the driver. On the other hand, PW.1 also clearly admitted that the consumption of alcohol by the driver was the reason for accident.

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As mentioned earlier, atleast two of the fractures suffered by the

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claimant could not have been averted even by proper wearing of the helmet. Taking into consideration the nature of injury suffered by the victim, this Court feels it would be appropriate to fix 10% contributory negligence on the part of the victim for his failure to wear helmet.

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As far as the quantum of compensation is concerned, the Tribunal fixed 28% disability based on Ex.C1-Disability Certificate issued by the Medical Board. The accident occurred in the year 2018, the Tribunal awarded only Rs.5,000/- per percentage of disability. Taking into consideration the date of accident, this Court feels the claimant is entitled to

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atleast Rs.7,000/- per percentage of disability. Therefore, the amount awarded under the head permanent disability is enhanced to Rs.1,96,000/(28 x 7000).

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A perusal of the discharge summary and outpatient record of the claimant marked as Exs.P3 and P5 would indicate that even after initial discharge from the hospital, the claimant has been in continues treatment upto September 2018. Infact, there is an endorsement in Ex.P5 that again the claimant was admitted for surgery on 26.09.2018 and discharged on 01.10.2018. Therefore, it is clear that the claimant has been in continues treatment atleast for a period 8 months. Therefore, this Court feels certainly he would have lost income for a period of 8 months. If the notional income is fixed at Rs.16,500/-, by taking into consideration the date of accident, for 8 months period, the claimant is entitled to Rs.1,32,000/- under the head loss of income.

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The other amount awarded by the Tribunal under various other heads like pain and sufferings, loss of comfort and amenities and loss of marital prospects are confirmed. Accordingly, the amount of Rs.1,68,000/-

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awarded by the Tribunal is enhanced to Rs.4,28,000/-. After deducting the contributory negligence of 10%, the claimant is entitled to a sum of Rs.3,85,200/- (Rs.4,28,000 – 10%). The modification made by this Court in

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the award as mentioned below:-

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Sl. No.	Description	Compensation awarded by the Tribunal	Compensation awarded by this Court	Remarks
1.	Permanent disability	Rs.1,40,000/-	Rs.1,96,000/-	Enhanced
2.	Pain and Sufferings	Rs.30,000/-	Rs.30,000/-	Confirmed
3.	Loss of comfort and amenities	Rs.20,000/-	Rs.20,000/-	Confirmed
4.	Extra nourishment	Rs.5,000/-	Rs.10,000/-	Enhanced
5.	Attender charges	Rs.5,000/-	Rs.10,000/-	Enhanced
6.	Medical expenses	NIL	NIL	NIL
7.	Transport expenses	Rs.5,000/-	Rs.10,000/-	Enhanced
8.	Loss of expectation of life	Rs.10,000/-	-	Set aside
9.	Loss of clothes and articles	NIL	NIL	NIL
10.	^{Loss of Income during} treatment	Rs.5,000/-	Rs.1,32,000/-
11.	Loss of Marital Prospects	Rs.20,000/-	Rs.20,000/-	Confirmed
12.	Future Medical Expenses	NIL	NIL	NIL
	Total	Rs.2,40,000/-	Rs.4,28,000/-
	Contributory Negligence	Rs.72,000/- (30%)	R.42,800/- (10%)
	Total	Rs.1,68,000/-	Rs.3,85,200/-

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In view of the discussion made earlier, the compensation awarded by the Tribunal is enhanced from Rs.1,68,000/- to Rs.3,85,200/-. The 2^nd respondent/Insurance Company is directed to deposit the enhanced award amount of Rs.3,85,200/- together with interest at the rate of 7.5% per annum from the date of claim petition to the date of realisation, (excluding the delay period of 23 days) to the credit of M.C.O.P.No.4250 of 2018 on the file of the Motor Accident Claims Tribunal/Special Sub Court II, Cuddalore, within a period of four weeks from the date of receipt of copy of this judgment. On such deposit, the appellant/claimant is entitled to withdraw the award amount now enhanced by this Court by making formal application. The appellant/claimant is directed to pay applicable additional court fee.

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