✦ High Court of India · 25 Feb 2025

High Court · 2025

Case Details High Court of India · 25 Feb 2025

Court

High Court of India

Decided

25 Feb 2025

Bench

S.SOUNTHAR

Length

1,634 words

Acts & Sections

Motor Vehicles Act 1988

C.M.A.No.507 of 2025IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 25.02.2025CORAMTHE HONOURABLE MR.JUSTICE S.SOUNTHARC.M.A.No.507 of 2025Mahendran @ Baskaran... Appellantvs. 1.Sivaperumal2.The Divisional Manager, The New India Assurance Co. Ltd., DO III floor, No.179 JN street, Puducherry – 605 001.... RespondentsPRAYER: 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.For Appellant: M/s.Ramya V.RaoFor R2: M/s.R.Rathna TharaFor R1: Notice Dispensed With1/12 https://www.mhc.tn.gov.in/judis C.M.A.No.507 of 2025J U D G M E N TNot 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. 2. 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 1st 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/-.3. Since the 1st respondent was set exparte before the Tribunal, notice to the 1st respondent is dispensed with. The claim petition was resisted by 2/12 https://www.mhc.tn.gov.in/judis C.M.A.No.507 of 2025the 2nd respondent-Insurance Company on the ground that the driver of the vehicle did not possess valid driving licence at the time of accident. The 2nd 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.4. Before the Tribunal, the appellant/claimant was examined as PW.1 and Assistant of the 2nd 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 2nd 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.C1.5. 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/-. 3/12 https://www.mhc.tn.gov.in/judis C.M.A.No.507 of 2025Aggrieved by the fixation of contributory negligence on the claimant and also the quantum of compensation, the claimant has come by way of this appeal.6. 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.7. 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 4/12 https://www.mhc.tn.gov.in/judis C.M.A.No.507 of 2025expectation of life, loss of marital prospects are very much on lower side.8. The learned counsel appearing for the 2nd 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.9. 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. 5/12 https://www.mhc.tn.gov.in/judis C.M.A.No.507 of 202510. PW.1 was cross examined with regard to the fact that he was under the influence of alcohol at the relevant point of time. The relevant portion of cross examination of PW.1 reads as follows:-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/”11. 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. 6/12 https://www.mhc.tn.gov.in/judis C.M.A.No.507 of 202512. In view of the categorical admission made by PW.1 that accident 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.13. As mentioned earlier, atleast two of the fractures suffered by the 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. 14. 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 7/12 https://www.mhc.tn.gov.in/judis C.M.A.No.507 of 2025atleast 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). 15. 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.16. 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/- 8/12 https://www.mhc.tn.gov.in/judis C.M.A.No.507 of 2025awarded 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 the award as mentioned below:-Sl.No.DescriptionCompensation awarded by the TribunalCompensation awarded by this CourtRemarks1.Permanent disabilityRs.1,40,000/-Rs.1,96,000/-Enhanced2.Pain and SufferingsRs.30,000/-Rs.30,000/-Confirmed3.Loss of comfort and amenitiesRs.20,000/-Rs.20,000/-Confirmed4.Extra nourishmentRs.5,000/-Rs.10,000/-Enhanced5.Attender chargesRs.5,000/-Rs.10,000/-Enhanced6.Medical expensesNILNILNIL7.Transport expensesRs.5,000/-Rs.10,000/-Enhanced8.Loss of expectation of lifeRs.10,000/--Set aside9.Loss of clothes and articlesNILNILNIL10.Loss of Income during treatmentRs.5,000/-Rs.1,32,000/-11.Loss of Marital ProspectsRs.20,000/-Rs.20,000/-Confirmed12.Future Medical ExpensesNILNILNILTotalRs.2,40,000/-Rs.4,28,000/-Contributory NegligenceRs.72,000/- (30%)R.42,800/-(10%)TotalRs.1,68,000/-Rs.3,85,200/-9/12 https://www.mhc.tn.gov.in/judis C.M.A.No.507 of 202517. 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 2nd 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.18. With the above direction, the Civil Miscellaneous Appeal is allowed. No costs.25.02.2025Index:YesSpeaking order:YesNeutral Citation:Yesdm10/12 https://www.mhc.tn.gov.in/judis C.M.A.No.507 of 2025To 1.The Motor Accidents Claims Tribunal/Special Sub Court II, Cuddalore.2.The Divisional Manager, The New India Assurance Co. Ltd., DO III floor, No.179 JN street, Puducherry – 605 001.3.The Section Officer, VR Section, High Court, Madras.11/12 https://www.mhc.tn.gov.in/judis C.M.A.No.507 of 2025S.SOUNTHAR, J.dmC.M.A.No.507 of 202525.02.2025 12/12

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