(Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, to pass award enhancing the award of Rs.50,00,000/- from the award passed by Motor Accident Claims Tribunal (Special Subordinate Court No.1), Villupuram in M.C.O.P.No.32 of 2022, dated 14.10.2024 and allow the appeal.)

1. The Civil Miscellaneous Appeal is filed by the appellant to enhance the award passed by Motor Accident Claims Tribunal (Special Subordinate Court No.1), Villupuram in M.C.O.P.No.32 of 2022, dated 14.10.2024, from Rs.23,53,800 to Rs.50,00,000/-.

2. The case of the appellant is that he sustained grievous injuries in the road accident occurred on 21.02.2021, while he was riding his two wheeler bearing Reg.No.TN-32-H-2793 on the Trichy-Chennai National Highways, near Virattikuppam Road, Villupuram. According to the appellant/claimant, the accident occurred while he halted to take a turn from West to South direction, an omni travel bus bearing Reg.No.TN-10-BF-2626, driven rashly and negligently without any caution, dashed against his two wheeler, in which he sustained injuries at his left leg and head. He was taken to the hospital, treated as in- patient. His Right Leg was crushed and amputated below the knee.

3. As owner of Transport lorry and doing business in blue metal, sand and Bricks, his income was not less than Rs.50,000/- per month. In view of amputation, he had become 100% functionally disabled. Therefore, he is entitled to be compensated with Rs.1,00,00,000/-.

4. The claim petition been instituted against the owner, driver and insurer of the omni travel bus bearing Reg.No.TN-10-BF-2626.

5. The claim contested by the respondents 1 to 3 independently. The owner of the omni travel bus bearing Reg.No.TN-10-BF-2626 arrayed as 1st respondent, in his counter, has stated that the claim of Rs.1,00,00,000/- is without any justification. There is no proof of income for the claimant nor there is any proof for negligence on the part of the omni bus driver. Being a National Highways Road, the claimant ought to have been diligent while cutting across the road to reach the other side. The claimant was riding the two wheeler negligently and crossed the road without noticing the vehicle proceeding along the highways road. Hence, he is held to be negligent for driving and contribution to the accident. Further, the travel bus was driven by the 3rd respondent, having valid driving license and the vehicle was duly insured under the 2nd respondent. As owner, the 1st respondent, he is fully indemnified by the insurance policy. Consequently, if any award is passed, the 2nd respondent which is the Insurance Company provided cover is to be held liable to pay the compensation.

6. The driver of the omni bus was arrayed as 3rd respondent. He, in his affidavit, had averred that the accident occurred not due to his fault, as alleged in the claim petition but due to the negligence of the claimant. Particulars with regard to the insurance coverage in respect of the Omni travel bus are incorrect and the allegations made in the claim petitions to be put to strict proof by the claimant.

7. The 2nd respondent, namely the United India Insurance Company has come out with detailed counter, wherein the specific plea of contributory negligence attributed on the part of the claimant. According to the Insurance Company, the accident occurred solely due to the rash and negligent driving of the claimants, who was riding his two-wheeler on Trichy-Chennai National Highways Road without valid Driving License and without wearing helmet since he drove the two wheeler in a negligent manner and turned towards South recklessly without caution, he is the tortfeasor and therefore cannot claim compensation as against the owner, driver and the insurer of the bus which has not contributed anything to the accident.

8. Regarding their liability to indemnify the owner of the vehicle under their insurance coverage the 2nd respondent/Insurance Company had contended that the 1st respondent, who is owner of the vehicle, violated the policy condition since he has allowed the person to drive the bus without necessary endorsement.

9. Regarding the quantum, the 2nd respondent/insurance Company has questioned the claim of Rs.1,00,00,000/- based on the alleged monthly income of Rs.50,000/- per month, in the absence of evidence to show the source of income or actual income of the claimant.

10. Before the Tribunal, the claimant/Moorthi and one Murugan were examined as P.W.1 & P.W.2 respectively and 13 documents marked as Ex.P.1 to Ex.P.13. The disability certificate issued by the Regional Medical Board, Villupuram is marked as Ex.C1.

11. The Tribunal took notional income of the petitioner as Rs.12,500/-, added 25% towards future prospects and applied multiplier 14 based on the age of the claimant. Taking into account, the Accident Register (Ex.P.2), the Discharge Summaries (Ex.P3 & Ex.P5) and the Medical Board report marked as Ex.C1, the Tribunal assessed 88% as permanent disability, adopting the multiplier method instead of percentage method, awarded a sum of Rs.23,10,000/- towards disability and future loss of income. After adding compensation under other heads, the Tribunal deducted 20% for contributory negligence on account of driving the two wheeler without licence and accordingly a total sum of Rs.23,52,800/- awarded as compensation.

12. Being aggrieved, the present appeal is filed by the claimant stating that the deduction of 20% towards contributory negligence is excessive and contrary to the dictum laid down by the Hon’ble Supreme Court judgments rendered in National Insurance Co Ltd vs. Leela and two others reported in 2023(2) TNMAC 135 and Bimala Devi & another vs. Himachal Road Transport Corporation & other reported in 2009(13) SCC 530, which are not applicable to the facts of the present case.

                   12.1. The tribunal ought not to have deducted 20% towards contributory negligence for not having driving license and valid insurance coverage to the two wheeler. Further, it is also contended that fixing notional income at the rate of Rs.12,500/- per month without appreciating the evidence adduced by the claimant regarding his actual earning is erroneous. Also the appellant had found fault regarding the quantum of compensation awarded under other heads and fixing 88% as permanent disability instead of 100% permanent disability.

13. The Learned Counsel appearing for the 2nd respondent/Insurance Company submitted that the claimant without valid Driving Licence and without helmet had driven the two wheeler in the highways road and turned to cross the road without proper care and diligence. The accident has occurred due to his negligence and violation of traffic rules by the claimant. Hence, the tribunal has deducted 20% towards contributory negligence in fact, the deduction should have been atleast 50% composite negligence of bus driver and two wheeler rider. Further, the claimant has not produced any evidence to prove his income except the oral evidence about his business in construction materials and owner of the lorry. To prove this claim, necessary documents should have been filed to substantiate. Since the claimant failed to produce proof for his income, the tribunal generously fixed Rs.12,500/- per month as notional income and awarded compensation by applying multiplier even though his disability warrants application of percentage method and not multiplier method.

14. This Court, on perusing the evidence, find that the injuries sustained by the claimant in the accident had caused amputation of the right leg below his knee. As per the discharge summary marked as Ex.P.3, he has sustained Grade III B compound of both bones of the leg fracture, distal l/3rd comminuted calcaneum fracture with tendo-achilles avultion, comminuted talus fracture with external fixation and wound debridement and fracture shaft of 2,3,4 metatarsals. He was admitted in the hospital as in-patient and continued treatment for his injuries till 18.04.2021. The claimant was subsequently referred to the Medical Board at Villupuram, where the Doctor had assessed that the injury sustained amounts to 88% permanent disability. With this material, the tribunal had applied the multiplier method and had fixed loss of income at Rs.23,10,000/-. In the absence of evidence to show proof of income, the notional income of Rs.12,500/- per month considered by the Tribunal is fair and reasonable. Similarly, the compensation under other heads been evaluated and granted as under:-