(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 againt the judgment and decree dated 13.04.2022 made in MCOP No.303 of 2020 on the file of the Motor Accident Claims Tribunal, Special Sub Court, Krishnagiri District.

Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 againt the judgment and decree dated 13.04.2022 made in MCOP No.239 of 2020 on the file of the Motor Accident Claims Tribunal, Special Sub Court (MACT), Krishnagiri District.

Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988 againt the judgment and decree dated 13.04.2022 made in MCOP No.239 of 2020 on the file of the Motor Accident Claims Tribunal, Special Sub Judge of Krishnagiri District.)

Common Judgement:

Dr. G. Jayachandran, J.

1. The issues that arise for consideration in these appeals are one and the same and, as such, they are taken up together and are being disposed of by this common judgment.

2. On 21.05.2019, one Santhosh, riding a motorcycle bearing Registration No. TN-29-AR-6095, along with his friend Suriya on the pillion, met with a road accident near Oragadam Forest U-Turn, Perungalathur– Walajabad Road, when the driver of a Maxicab bearing Registration No. TN-87-A-3901, drove the vehicle rashly and negligently and hit the twowheeler. As a result, Santhosh sustained Comminuted Fracture and Mastoid Portion of Right Temporal Bone, Undisplaced Fracture of Right Frontal Bone, Fracture of Greater Wing of Sphenoid with Depressed Fracture Fragment into Right Orbit, and other injuries. The pillion rider sustained Right Extra- Articular Distal Radius and Ulna Fracture, Right Middle 3rd Femur Fracture, Left Hand UCL Avulsion Injury, Cut Lacerated Wound over the Jaw, and Concussion Head Injury. Both were initially taken to Chengalpet Hospital and thereafter shifted to Rela Private Hospital, Chromepet. A case in Crime No.177 of 2019 was registered under Sections 279 and 337 IPC against the driver of the Maxicab.

3. Santhosh, being unable to move, through his mother and natural guardian Vasantha, filed a claim petition in MCOP No.303 of 2020 before the Motor Accidents Claims Tribunal, Special Sub Court, Krishnagiri, seeking compensation of Rs.80,00,000/- for the injuries sustained. According to the petition, he is a B.E. Mechanical Engineering Graduate employed as a Sales Executive in M/s. Kun Honda Motorcycle Private Limited, earning Rs.35,000/- per month. It was stated that he was driving the motorcycle cautiously, but the Maxicab driver, on reaching the U-Turn, lost control and dashed against the motorcycle, causing both riders to fall and sustain injuries. It was claimed that he had lost his earning capacity and had become dependent for his day to day activities.

4. Suriya, the pillion rider, filed MCOP No.239 of 2020, claiming Rs.50,00,000/-, stating that he was employed in M/s. Daimler Private Limited, Chennai, earning Rs.12,500/- per month, contributing his entire income to his family, and that the injuries had impaired his earning capacity and also suffers mental agony.

5. Both the claim petitions were opposed by the Insurance Company on the ground that the accident occurred due to the negligence of the driver of the two-wheeler and his companion, the pillion rider, who are the appellants. No intimation from the vehicle owner or any other person was received by the Insurance Company indicating that the vehicle insured with them had caused an accident on 21.05.2019 near the U-Turn at Oragadam Forest. Therefore, the claimants are required to produce the relevant documents of the vehicle involved in the accident, the police report and other accident-related documents. The driver of the Maxicab bearing Registration No. TN-87- A-3901 had no valid driving licence and, therefore, the Insurance Company cannot indemnify the vehicle owner.

6. As per the police records, it was an accident involving multiple vehicles, i.e., the motorcycle driven by Santhosh, the Maxicab of the first respondent and a lorry. Santhosh, the rider of the motorcycle, was not wearing a helmet in violation of the Traffic Rules, and he did not possess a proper driving licence. It is their case that he hit the Maxicab due to his rash and negligent driving. Without impleading the owners of all the vehicles involved in the accident, for reasons best known to them, the claimants have chosen only the owner of the Maxicab and its insurer, but not the owner of the twowheeler or its insurer. In view of the above and considering the nature of injuries sustained by the claimants, the Insurance Company contested both the claim petitions.

7. Both claim petitions were tried together. Suriya was examined as P.W.1 and Santhosh as P.W.2. Eighteen exhibits were marked for the claimants. R.W.1 Sridhar was examined for the Insurance Company. The wound certificates were marked as C.W.1 and C.W.2.

8. The Tribunal has awarded a sum of Rs.55,31,082/- in MCOP No.303 of 2020 in favour of one Santhosh and a sum of Rs.8,46,045/- in MCOP No.239 of 2020 in favour of one Suriya.

9. The Insurance Company, aggrieved by the Tribunal not considering contributory negligence and by the quantum awarded, filed CMA No.2968 of 2023, against MCOP No.303 of 2020 and CMA No.1668 of 2023, against MCOP No.239 of 2020. The mother of Santhosh filed CMA No.559 of 2023, seeking enhancement.

10. The contention of the Insurance Company in these two appeals is regarding the contributory negligence alleged on the rider of the two-wheeler, namely Santhosh. It is contended by the learned counsel appearing for the Insurance Company that the accident took place near a U-Turn, and both the claimants were travelling on the two-wheeler without wearing helmets. Santhosh, the rider of the two-wheeler, was not in possession of a valid driving licence. The Tribunal failed to take note of the fact that the accident could not have occurred without the contributory negligence of the two-wheeler rider. Hence, the failure to fix contributory negligence warrants interference.

CMA Nos.1668 & 2968 of 2023:

11. Further, the learned counsel also contended that the Tribunal, while considering the loss of income incurred by Santhosh due to the injury, had fixed Rs.13,000/- per month as notional income when there were no supporting documents and had also fixed 80% disability and applied the multiplier method instead of the percentage method. She further contended that the multiplier of 18 is not correct, since the claimant had crossed the age of 26 as on the date of the accident and, therefore, only multiplier 17 ought to have been taken into account.

12. During the course of the argument, the learned counsel appearing for the Insurance Company submitted that the victim, namely Santhosh, had driven the vehicle without a licence and without wearing a helmet. The place of accident being a U-Turn, without the contribution of the vehicles involved, there was no possibility of any accident, and therefore, the award needs modification. Her further contention is that the disability incurred by the claimant is only a functional disability, and hence the application of the multiplier method by fixing 80% disability is incorrect.

13. The learned counsel appearing for the appellant in CMA No.559 of 2023 submitted that the claimant had sustained Severe Head Injury, Right Sigmoid and IJV Thrombosis, Right Femur Fracture, Right Ear Untidy Laceration, Liver Laceration – Segment IVA and Caudate Lobe GR-3, Right Adrenal Small Haematoma, Stable C1 Fracture, and Fracture of the Right Transverse Process of C5, C6 and C7. Due to multiple fracture injuries, the appellant, Santhosh, has lost his life and is leading a vegetative life. He is not able to walk, sit or stand. The claim petition itself was filed through his mother and though he was present in the court campus during trial, he was not in a position to depose, which has been observed by the learned Tribunal in its order. Having found that he is crippled, unable to move without assistance, unable to talk and communicating only with difficulty, the Tribunal ought to have taken 100% functional disability, instead of fixing only 80%, even though the Medical Board had assessed 90% permanent disability. The Tribunal also failed to take note of the loss of marital prospects of the petitioner and failed to consider that permanent assistance is required for the claimant to carry on his day to day activities, which requires expenditure. The monthly salary of the claimant Santhosh was erroneously fixed at Rs.13,000/- as notional income, despite evidence that he is a B.E. Graduate gainfully employed in M/s.Kun Honda Motorcycle Private Limited and Daimlar Private Limited.

14. It is the case of one accident, two claimants and three appeals. The admitted fact is that the accident involved the motorcycle driven by Santhosh, who is the claimant in MCOP No.303 of 2020 had no driving licence while riding the two-wheeler and he was not wearing a helmet. At the time of accident, he was 26 years old. It is his claim that he is a Mechanical Engineer. The documents produced before this Court to prove these are the Transfer Certificate issued by Maharaja Prithvi Engineering College dated 14.03.2016, marked as Ex.P-10, indicating he completed his B.E. Mechanical Engineering course in May 2015 and his Provisional Certificate issued by Anna University and Degree Certificate, both marked as Ex.P-12, which clearly fortify the claimant’s case that he possessed an Engineering Degree at the time of the accident.

15. Insofar as the employment of the rider Santhosh, Ex.P-13, a temporary ID card issued by M/s.Kun Honda Motorcycle Private Limited, designates him as a ‘Sales Executive’ with a date of joining on 20.03.2017. The salary slip produced shows M.A. Facility Management Service Private Limited as the contractor, and records that Santhosh was drawing a gross salary of Rs.14,840/- with deductions of Rs.2,497/-. The salary slip pertains to March 2019. In the FIR given by one Kabilan, the employer of Santhosh, it is mentioned that both the rider Santhosh and the pillion rider Suriya were employed in Daimlar Company. However, there is no evidence to substantiate the same.

16. The accident took place on 21.05.2019. The salary slip is for March 2019. In these circumstances, the fixation of Rs.13,000/- as notional income and adding 40% towards future prospects, based on the salary certificate, does not appear to be improper. We find that the Tribunal had applied the multiplier method for loss of income. The Tribunal has recorded the physical condition of the injured. The functional disability is 90% as per the Medical Board. The Tribunal has fixed it as 80%, assigning reasons to differ from the Medical Board's opinion. But, in taking the multiplier, it adopted 18 instead of 17. We find that the claimant Santhosh is entitled to compensation under the heads ‘Assistance’ and ‘Loss of Marriage Prospects’ which were not provided in the award. At the same time, for violation of traffic rules by riding without a helmet and without a driving licence, the Tribunal ought to have deducted for his neglect. Hence, the appeals by the Insurance Company as well as the claimant against the award passed in MCOP No.303 of 2020 needs modification based on rationality and it is modified as below: