(Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, praying to set aside the Award and Decree dated April 13, 2022 passed in M.C.O.P. No.616 of 2018 on the file of the Motor Accident Claims Tribunal, Tiruvannamalai (In the Court of the Special Sub Court, Tiruvannamalai).

Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, praying to enhance the compensation awarded to the appellant vide Common Award dated April 13, 2022 passed in M.C.O.P. No.616 of 2018 on the file of the Motor Accident Claims Tribunal, Tiruvannamalai (In the Court of the Special Sub Court, Tiruvannamalai).

Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1988, praying to enhance the compensation awarded to the appellant vide Common Award dated April 13, 2022 passed in M.C.O.P. No.613 of 2018 on the file of the Motor Accident Claims Tribunal, Tiruvannamalai (In the Court of the Special Sub Court, Tiruvannamalai).)

Common Judgment

R. Sakthivel, J.

1. On June 30, 2018 at about 21.30 hours, a father and son duo was riding their TVS XL Motorcycle bearing Registration No.TN-25- AA-1352, on Tiruvannamalai - Vettavalam Road, to their house at M.G.R. Nagar. The father's name is Periyasamy and his son's name is Sozhapandiyan. The son was driving the motorcycle and his father was on the pillion seat. While nearing M.G.R.Nagar, the rider of the Bajaj Pulsar Motorcycle bearing Registration No.TN-25-BH-6412 allegedly rode his motorcycle in a rash and negligent manner, and dashed behind the motorcycle in which the duo was travelling, leading to an accident.

2. Consequently, the son - Sozhapandiyan filed M.C.O.P. No.613 of 2018 and his father - Periyasamy (represented by his wife / next friend) filed M.C.O.P. No.616 of 2018, both on the file of 'the Motor Accident Claims Tribunal (Special Sub Court) Tiruvannamalai' ['Tribunal' for short]. In both the Original Petitions, the rider and the insurer of the Bajaj Pulsar Motorcycle bearing Registration No.TN-25-BH-6412 were arrayed as Respondent Nos.1 and 2 respectively.

3. Hereinafter, for the sake of convenience, the parties will be referred to as per their array before the Tribunal in the Motor Accident Claims Original Petition.

CASE OF THE PETITIONERS:

4. Sum and substance of the case of the petitioners is as follows:

                     4.1. The petitioners were riding carefully following all the traffic rules and regulations, and the accident occurred solely due to the rash and negligent riding of the first respondent.

                     4.2. Immediately after the accident, the petitioners were taken to Government Hospital, Tiruvannamalai. From there, petitioner -Periyasamy was referred to Christian Medical College Hospital, Vellore where he obtained treatment as an in-patient for the severe head injuries caused in the accident. He had to undergo a surgery and two of his bones in the head region had to be completely removed. On July 11, 2018, Periyasamy was shifted for further treatment to Trinity Acute Care Hospital, Chennai, where he was admitted as an in-patient till July 30, 2018.

                     4.3. Due to the accident, the petitioner - Periyasamy sustained multiple fractures on his head and injuries all over the body, and the petitioner - Sozhapandiyan sustained multiple fractures on his right leg, knee & nodes and also sustained injuries all over his body.

                     4.4. The respondents 1 and 2, being the rider and the insurer of the offending motorcycle respectively, are jointly liable to compensate the petitioners.

                     4.5. With regard to the accident, a First Information Report (FIR) in Crime No.1105 of 2018 was registered against the first respondent under Sections 279 and 337 of the Indian Penal Code, 1860.

                     4.6. The medical and transportation expenses of the petitioner - Periyasamy went to the tune of Rs.10,00,000/- and Rs.2,00,000/- was spent towards his nourishment. The accident left a serious impact on his life. The accident affected the cognitive functions of his brain and he has been suffering from bladder and bowel incontinence. As he is not in a state to represent himself, he is represented by his wife/next friend in the Original Petition. He is 100% permanently disabled due to the accident. At the time of accident, he was 55 years old and was working as a Driver in 'Tamil Nadu State Transport Corporation' ['TNSTC'] earning an aggregate sum of Rs.50,000/- per month as salary. Consequent to the accident, he is unable to perform his duties as Driver. Accordingly, the petitioner - Periyasamy represented by his wife / next friend claimed a compensation of Rs.50,00,000/- from the respondents.

                     4.7. The medical and transportation expenses of the petitioner - Sozhapandiyan (son) went to the tune of Rs.1,00,000/- and Rs.50,000/- was spent on his nourishment. At the time of accident, Sozhapandiyan was 22 years old, a first class graduate in B.E. Mechanical Engineering and was employed as an Engineer and earning a sum of Rs.30,000/-. The accident rendered him unable to perform his day to day activities without the help of others. He also lost his income. Accordingly, he claimed Rs.5,00,000/- as compensation from the respondents 1 and 2.

CASE OF THE RESPONDENTS:

5. That being the case of the petitioners, the respondents 1 and 2 filed their separate counters in both the Original Petitions. Apart from formal denials, the respondents disputed the manner of accident by stating that the accident was caused by the negligence of the petitioner - Sozhapandiyan in turning the vehicle right abruptly without any indication. The second respondent specifically averred that the petitioners were not wearing helmet at the time of accident. Stating so, they prayed to dismiss the Original Petitions.

6. The first respondent remained absent after filing of the counter and did not contest the Original Petitions. Hence he was set ex-parte before the Tribunal.

TRIBUNAL:

7. The Tribunal tried both the Original Petitions jointly.

8. On the side of the petitioners, P.W.1 to P.W.7 were examined. P.W.1 is the petitioner in M.C.O.P.No.613 of 2018 - Sozhapandiyan (son). P.W.2 is the wife of the petitioner in M.C.O.P.No.616 of 2018 - Periyasamy (father). P.W.3 is a Superintendent at TNSTC. P.W.4 is Doctor Arul Manish from Mahatma Gandhi Medical College and Hospital, Pondicherry. P.W.5 and P.W.6 are Physical Medicine and Rehabilitation Specialists namely Dr.Thangam Yuvaraj and Dr.Raja Kumar respectively. P.W.7 is the Public Relation Officer of aforesaid Trinity Acute Care Hospital. Ex-P.1 to Ex-P.33 along with Ex-C.1 and Ex-C.2 - Disability Certificates issued by Medical Board to the petitioners were marked.

9. On the side of the second respondent, Ex-R.1 - Attendance Particulars of the petitioner - Periyasamy was marked in the crossexamination of P.W.3 - TNSTC Superintendent.

10. After enquiry and hearing both sides, the Tribunal passed a Common Award on April 13, 2022. On the strength of the oral evidence of P.W.1 & P.W.2, and the documents in Ex-P.1 - FIR, Ex-P.3 - Final Report and Ex-P.4 - Judgment in S.T.C. No.30 of 2019 in Crime No.1105 of 2018, the Tribunal held that the accident occurred due to the rash and negligent riding of the first respondent. It was further held that the offending vehicle was insured with the second respondent at the time of accident. Hence, the second respondent is liable to compensate the petitioners. The Tribunal granted a sum of Rs.2,45,000/- to the petitioner - Sozhapandiyan (son) in M.C.O.P. No.613 of 2018, and Rs.29,80,395/- to the petitioner – Periyasamy (father) in M.C.O.P. No.616 of 2018. The break-up figures are as tabulated below:





11. Feeling aggrieved by the quantum of compensation awarded vide Common Award, the father / petitioner in M.C.O.P. No.616 of 2018 has preferred C.M.A. No.2302 of 2022, the son / petitioner in M.C.O.P. No.613 of 2018 has preferred C.M.A.No.2303 of 2022.

12. On the other hand, assailing the Common Award in M.C.O.P. No.616 of 2018, the second respondent / insurance company therein has preferred C.M.A. No.1902 of 2022.

13. As these Civil Miscellaneous Appeals are arising out of a Common Award and as joint enquiry was conducted in the Original Petitions, this Court shall dispose of these Civil Miscellaneous Appeals vide this Common Judgment.

ARGUMENTS:

14. Submissions of Ms.M.Malar, the learned Counsel appearing for the Appellants in C.M.A. Nos.2302 and 2303 of 2022 / Petitioners, regarding the petitioner - Periyasamy (father), are as follows:

                     (i) She would submit that Periyasamy was working as a Driver in TNSTC at the time of accident. Due to the severity of the injuries caused by the accident, he is not able to perform his duties as a Driver. Hence, he availed all his leaves and thereafter, retired from service voluntarily on March 16, 2020.

                     (ii) She would draw attention of this Court to the oral evidence of P.W.4 to P.W.7 as well as the Medical Records in Ex-P.12 to Ex-P.14, Ex- P.22 to Ex-P.33 and Ex-C.2 - Disability Certificate, and submit that though the Medical Board assessed 30% permanent disability, the severe head injuries suffered in the accident has caused 100% functional disability to Periyasamy.

                     (iii) In other words, her submission is that the due to the 30% permanent disability, Periyasamy could not perform his duties as Driver and hence, the Tribunal ought to have taken 100% functional disability.

                     (iv) Further Periyasamy was admitted in hospital for more than 34 days as an in-patient and suffered lots of pain and sufferings. The Tribunal failed to consider the same. The Tribunal also failed to consider the nature of injuries. The Tribunal erred in not awarding future medical expenses. Accordingly, she would pray to allow the Civil Miscellaneous Appeal in C.M.A. No.2302 of 2022, dismiss that in C.M.A. No.1902 of 2022 and enhance the Award amount.

                     14.1. Her arguments with regard to the petitioner - Sozhapandiyan (son) are as follows:

                     (i) At the time of accident, Sozhapandiyan was 21 Years old and was a first class graduate in B.E. Mechanical Engineering from an autonomous college affiliated to Anna University, Chennai. He was working as an Engineer and earned a sum of Rs.30,000/- per month. But the Tribunal fixed his monthly income at Rs.10,000/- which is on the lower side.

                     (ii) Further, the Tribunal failed to consider the fact that Sozhapandiyan suffered severe fracture in his right leg for which an internal fixation was done. Consequently, he cannot perform his day to day functions without the aid of others. Hence, the Tribunal ought to have assessed compensation by applying multiplier method instead of opting for percentage method. Accordingly, she would pray to enhance the compensation awarded in M.C.O.P. No.613 of 2018 by applying multiplier method.

15. On the other hand, Mr.R.Sivakumar, learned Counsel appearing for the second respondent / insurance company would draw the attention of this Court to Ex-P.1 - F.I.R. and Ex-P.3 - Final Report, and submit that the petitioner - Sozhapandiyan (son) is the informant in Criminal Case. He preferred a complaint before the police in writing that, as he attempted to turn right, the first respondent collided with his motorcycle from behind. Even as per his version of the accident, he is the one who made a turn. While making a turn, he ought to have taken due care but he failed to do so. He turned without using indicators and without checking his rear view mirrors. The rash and negligence on his part could be inferred from Ex-P.1. Further, both the petitioners were not wearing helmet at the time of accident. In these circumstances, the Tribunal ought to have deducted a sum in the compensation for contributory negligence.

                     15.1. Further, as regards the petitioner - Periyasamy (father) he would submit that the Medical Board assessed 30% disability vide Ex-C.2 - Disability Certificate. Even while assuming the averment that Periyasamy cannot perform his duties as a Driver to be true, TNSTC had offered alternate employment / role to him. However, Periyasamy on his own volition chose to retire on March 16, 2020. In these circumstances, the Tribunal is not justifiable in employing multiplier method. Instead, the Tribunal ought to have awarded compensation under percentage method. Hence, the compensation awarded by the Tribunal is excessive and not just. Furthermore, Periyasamy receives monthly pension and had already received terminal benefits from TNSTC. Periyasamy would have attained superannuation in the year 2021 and hence there is no much loss. When there is only one year of service left after voluntary retirement, the Tribunal is not right in awarding future prospects.

                     15.2. Further, as regards the petitioner - Sozhapandiyan (son), he would submit that the accident occurred on June 30, 2018 and Sozhapandiyan preferred a written complaint in person before the police on July 2, 2018 at 16.30 hours, based on which Ex-P.1 - F.I.R. was registered. The fact that he preferred a complaint himself two days after the accident points to his wellbeing. Hence, he did not suffer any serious injury in the accident. Furthermore, as per Ex-P.5 - Discharge Summary he was admitted in a private hospital on September 28, 2018 for installing an internal fixation in his right leg and he was discharged on October 5, 2018. But, no medical bill or proof of medical expenses have been let in. There is also no sufficient and independent evidence as to the financial loss caused to him due to the injuries. The Tribunal considering the evidence adduced by Sozhapandiyan rightly awarded a sum of Rs.2,45,000/- under various heads and there is no need to interfere with it. There is no need to enhance the compensation awarded by the Tribunal.

                     15.3. Accordingly, he would pray to allow the C.M.A. No.1902 of 2022 and dismiss C.M.A Nos.2302 and 2303 of 2022.

DISCUSSION:

16. This Court has considered both sides' submissions and perused the evidence available on record.

NEGLIGENCE:

17. According to the petitioners, the accident was caused solely due to the rash and negligence on the part of the first respondent. The defence put up by the respondents is that the petitioners abruptly turned right in a negligent manner without using indicators and that led to the accident.

18. In Ex-P.1 - F.I.R. lodged based on the information given by the petitioner - Sozhapandiyan (son), it has been stated that the first respondent dashed the petitioners' motorcycle from behind when they attempted to make a right turn. But in the Original Petitions as well as in the chief affidavit of P.W.1 who is the petitioner - Sozhapandiyan and P.W.2 who is the Wife / Next Friend representing the petitioner - Periyasamy, the petitioners have consistently maintained a stand that the first respondent rode in a rash and negligent manner and hit the petitioners' motorcycle from behind leading to the accident; there is no mention of them making a right turn. Even while assuming that the accident occurred when the petitioners attempted to turn right, that alone is not sufficient to attribute negligence on their part, that too when in the Original Petitions as well as in the chief affidavit of P.W.1, it is stated that the petitioners rode following all the traffic rules and regulations. They could have made the turn using proper indication and after taking due care.

19. Either ways, the fact remains that the first respondent collided with the petitioners' motorcycle from behind. In this case, Ex-P.3 - Final Report was filed against the first respondent and the Criminal Case with regard to the accident was decided against the first respondent after he admitted to the offence, as it can be seen from the Judgment in Ex-P.4. The burden is on the second respondent to establish that the petitioners were negligent while making the alleged right turn. The second respondent has merely pleaded but has not adduced any evidence in this regard. In the absence of any other evidence or ocular witness, examination of the first respondent to prove the alleged negligence on the part of the petitioners while making the alleged right turn gains significance. In the absence of any other witness first respondent is the competent person to depose in this regard. The first respondent as stated supra, though initially entered appearance and filed counter, was subsequently, called absent and set exparte. The second respondent did not take any steps to bring the first respondent to the witness box. Further, nothing could be elicited in favour of the respondents from the cross-examination of P.W.1 in this regard. When confronted with the inconsistency with regard to the manner of accident as stated in the F.I.R. and as stated in the Original Petitions, P.W.1 took a firm stand that it was the first respondent who caused the accident by riding in a rash and negligent manner and hitting their motorcycle from behind. As stated supra, the minor inconsistency in the F.I.R. is not sufficient to attribute negligence on the petitioners given that the Criminal Case was decided against the first respondent, that the first respondent being the competent person to depose in this regard was not examined and that there is absolutely no other evidence in this regard in favour of respondents. Hence, this Court concludes that the accident occurred due to the rash and negligent riding of the first respondent leading to a rear end collision with the petitioners' motorcycle.

20. The second respondent had set up another defence in their counter that the petitioners were not wearing helmet at the time of accident and hence they must be mulcted with deduction for contributory negligence. Contributory Negligence can be fixed only when the petitioners had contributed to the cause of accident or to the severity of injuries. If the petitioners were not wearing helmet and that contributed to the severity of the injuries, then they could be held liable for contributory negligence. However, in the first place, there has to be direct or corroborative evidence for such act of contributory negligence i.e., for the petitioners not wearing helmet. Other than the counter averment, there is absolutely no step taken by the second respondent. P.W.1 was not crossexamined in this regard by the second respondent. There is no evidence to show that the petitioners were not wearing helmet. Hence, the petitioners cannot be held liable for contributory negligence.

Quantum of Compensation for the petitioner - Sozhapandiyan in M.C.O.P. No.613 of 2018:

21. According to the petitioner - Sozhapandiyan, he sustained severe injuries in his right leg and he was rushed to Government Hospital, Tiruvannamalai after the accident where he obtained treatment as an in-patient for 10 days. But no treatment particulars, bills, discharge summary or any other medical evidence has been adduced by him to prove the said averment. But, the petitioner was subsequently admitted as an in-patient from September 25, 2018 to October 5, 2018 in the aforesaid hospital and the same is supported by Ex-P.5 - Discharge Summary. Ex-P.5 further shows that during the said period the Sozhapandiyan underwent a surgery and an internal fixation was installed in his right leg. In Ex-C.1 - Disability Certificate, the Medical Board has assessed Sozhapandiyan's disability at 20%, owing to the grievous injury in the right leg (fracture right leg both bone with internal fixator). It is to be noted that there is no evidence to show that the injury in the right leg of the Sozhapandiyan caused him functional disability. In the absence of evidence for the same, the Tribunal is right in employing the percentage method to calculate compensation for the disability suffered by him. This Court does not find any irregularity or illegality in it.

22. The accident occurred on June 30, 2018. As per Ex-P.7 - Driving Licence, the petitioner - Sozhapandiyan was born on June 03, 1997. On the date of accident he was 21 years old. From Ex-P.6 - Graduation Certificate issued in December 2018, it could be seen that he graduated B.E. Mechanical Engineering Course in first class in May 2018, about one month before the accident. He claims that he was working as an engineer and was earning Rs.30,000/- per month. But he has stated nothing more or particular about his occupation. He has not examined any witness or adduced any documentary evidence such as bank statement, salary slip, identity card, etc., to prove his alleged employment and income. It was in these circumstances the Tribunal took a notional income of Rs.10,000/-, held that Sozhapandiyan could not have been to work for three months in view of the injuries caused and accordingly awarded Rs.30,000/- as loss of income due to the injury. The same is justifiable. Further, the Tribunal had granted compensation towards Loss of Amenities, Pain and Sufferings, Transportation Expenses, Extra Nourishment and Attender Charges and this Court finds no issue with the same. Hence, the quantum of compensation awarded by the Tribunal in M.C.O.P. No.613 of 2018 is just and reasonable and this Court finds no reason to interfere with the same. Therefore, Civil Miscellaneous Appeal No.2303 of 2022 is liable to be dismissed as devoid of merits.

Quantum of Compensation in M.C.O.P. No.616 of 2018 for the petitioner – Periyasamy:

23. Case of the petitioner - Periyasamy is that in the accident he suffered severe and traumatic head injuries which have affected the cognitive functions of his brain. Consequently, he cannot carry out his dayto- day activities on his own much less perform his duties as Driver and hence, he suffers from 100% functional disability.

24. The petitioner - Periyasamy obtained treatment from various hospital and the particulars are as tabulated hereunder:











25. The petitioners' side examined P.W.6 - Dr.Raja Kumar, Associate Professor and Physical Medicine & Rehabilitation Specialist. He is one of the member of the Medical Board constituted to assess the disability of the petitioner - Periyasamy. He deposed that at the time of medical assessment i.e., on February 13, 2019, it was found that Periyasamy's front right side bone and left temporal bone were removed, and that he had suffered fracture in his hands. He further deposed that Periyasamy suffered 25% permanent disability due to the head injury and 5% permanent disability due to the fracture in hands, as per the assessment of the Medical Board vide Ex-C.2 - Disability Certificate . He further deposed that Periyasamy would not be able to continue his Driver profession in view of the disability.

26. The evidence of P.W.5 - Dr.Thangam Yuvraj who is also a Physical Medicine & Rehabilitation Specialist, corroborates the evidence of P.W.6.

27. P.W.4 - Doctor Arul Manish, Doctor at Mahatma Gandhi Medical College, Pondicherry deposed that Periyasamy was admitted as an in-patient for seizures and psychiatric treatment on January 9, 2019 and was discharged on January 11, 2019. Thereafter, he has been periodically obtaining treatment from his hospital for seizures and psychiatric treatment. Periyasamy had difficulty in identifying people and could not provide appropriate responses to questions. Periyasamy also had speech difficulties. He further deposed that Periyasamy was diagnosed with kidney stone and liver issues. In his professional opinion, all these were caused as a result of the head injury caused in the accident. He opined that Periyasamy would not be able to work as a Driver.

28. From a cumulative reading of the above evidence, this Court is of the considered opinion that though Ex-C.2 - Disability Certificate assessed the petitioner - Periyasamy's disability as 30% permanent disability, he has suffered 100% functional disability. All the expert witnesses / doctors are of the same opinion that Periyasamy cannot pursue his driver profession in view of the injuries sustained in the accident and its post sequelae. Close reading of P.W.4's evidence would show that the accident has rendered Periyasamy not just unfit for the post of driver, but he cannot even take up any other occupation. P.W.4 has deposed that Periyasamy have speech and psychiatric issues, he is unable to give appropriate response to questions, and he has difficulty in even identifying people. These coupled with the severity of the head injury helps this Court to infer the level of cognitive impairment suffered by the petitioner - Periyasamy. This Court is of the considered opinion that Periyasamy cannot lead a normal life, requires support from others to carry out his dayto- day functions and cannot take up any occupation for his livelihood. Hence, the contentions of the learned Counsel for the insurance company qua alternative employment / role offered by TNSTC are rejected. In these circumstances, the Tribunal is not justifiable in considering the disability of Periyasamy as merely 30% permanent disability. The Tribunal failed to note that the 30% permanent disability has caused him 100% functional disability. Hence, this Court shall re-work the compensation by considering it as 100% functional disability.

29. Periyasamy was employed at TNSTC as a Driver and voluntarily retired from service on March 16, 2020. Periyasamy's Pay Slip for June 2018 and December 2019 have been marked as Ex-P.15. Ex-P.15 shows that his last drawn aggregate salary was Rs.52,742/- and that it was in the month of December 2019. Though the accident occurred on June 30, 2018, Periyasamy has received his salary till December, 2019. He has not suffered any loss of income until then. Hence, compensation for loss of income shall be reckoned from December 2019 and not from the date of accident.

30. Further, - Periyasamy's service register has been marked as Ex- P.21. It shows that he was born on March 10, 1963, that he joined service on September 9, 1992, that at the time he last drew his salary i.e., in December 2019, he was aged 56 years and he was serving as a Special Grade Driver, and that his date of superannuation is March 31, 2021. As per the evidence of P.W.3 – TNSTC Superintendent, he is entitled to a sum of Rs.12,821/- as pension after his voluntary retirement as per Special Pension Rules framed by TNSTC.

31. As stated supra, Rs.52,742/- is his last drawn salary. As per the Judgment of Hon'ble Supreme Court in National Insurance Company Limited -vs- Pranay Sethi, reported in (2017) 16 SCC 680, any person aged 50 to 60 Years in permanent employment is entitled to 15% future prospects. With 15 % future prospects, the monthly income of the petitioner - Periyasamy would be Rs. 60,653/- and his annual income would be Rs.7,27,836/-. The Income tax slabs for the assessment years 2019-2020 are given below: