The court upheld the principle of contributory negligence while enhancing compensation based on the severity of injuries and loss of earning capacity, applying the multiplier method for calculation.

JUDGMENT :

R. SAKTHIVEL, J.

Feeling aggrieved by the Award dated September 25, 2023 passed by the 'Motor Accidents Claims Tribunal / II Judge, Court of Small Causes, Chennai' ('Tribunal' for short) in M.C.O.P.No.2657 of 2019, the second respondent therein / Insurance company has preferred CMA.No.1612 of 2024 praying to set aside the same, while the petitioner / claimant therein has preferred Cross Objection No.48 of 2024 praying to enhance the compensation. This Common Judgment will now decide both, the Civil Miscellaneous Appeal and the Cross Objection.

2. For the sake of convenience, the parties herein will be referred to as per their rank in the Motor Accident Claims Original Petition.

3. To be noted, petitioner / claimant is represented by his wife and next friend -T.Sindhuja, since he suffers from right Hemiplegia.

CASE OF THE PETITIONER

4. On January 15, 2019, at about 23.00 hours, the petitioner / A.Thangaraj was riding his two-wheeler bearing Registration No.TN-16-Z-4074 on G.S.T. Road from Chennai towards Chengalpattu. While nearing Hindustan Petrol Bunk at Kattankulathur, a Car bearing Registration No. KA-51-D-1324, driven in a rash and negligent manner endangering public safety, collided with his two-wheeler, causing him grievous injuries. The accident occurred solely due to the negligence of the driver of the Car. According to the petitioner, the first respondent as owner of the said Car and the second respondent as its insurer, are jointly, severally, vicariously, and statutorily liable to compensate the petitioner with interest and costs. Accordingly, the petitioner filed a claim petition claiming compensation of Rs.42,00,000/- from the respondents.

CASE OF THE FIRST RESPONDENT

5. Despite being served with notice, the first respondent failed to appear before the Tribunal and was set ex parte on December 7, 2021.

CASE OF THE SECOND RESPONDENT

6. In the counter, the second respondent denied all allegations in the petition except those specifically admitted. The 2^nd respondent stated that the petitioner must prove the existence of a valid insurance policy, registration certificate (R.C.), driving license, badge and other relevant documents for the first respondent’s vehicle. The policy issued by the second respondent is subject to specific terms, conditions, and exclusions. Any violation of these terms or the Motor Vehicles Act absolves the second respondent's liability, making the first respondent solely responsible. The petitioner must also prove beyond reasonable doubt that the injuries were sustained due to the alleged road traffic accident. The second respondent contended that the accident was not due to the negligence of the Car driver but rather due to the petitioner’s failure to observe traffic rules. Furthermore, the petitioner sustained head injuries as he was not wearing a helmet, which should be considered under contributory negligence. The claim made by the petitioner is deemed to be exaggerated and arbitrary. The 2^nd respondent disputed the petitioner’s claims regarding pain, suffering, permanent disability and loss of earning capacity. The petitioner must provide strict proof of age, occupation and income. Stating so, the second respondent sought to dismiss the petition.

TRIBUNAL

7. During enquiry, the wife of the petitioner / Sindhuja was examined as P.W.1 and an ocular witness, Mr.G.Ravichandran, and one Shanmugaraj were examined as P.W.2 and P.W.3 respectively and Ex-P.1 to Ex-P.19 were marked. On the side of the second respondent, one Anbin Vinnarasi was examined as R.W.1 and Ex-R.1 to Ex-R.3 were marked. Ex-C.1 - Disability Certificate of the petitioner was marked as a Court document.

8. The Tribunal, after hearing both sides and considering the evidence available on record, concluded that the accident occurred due to the rash and negligent driving of the first respondent's driver to an extent of 90% and the petitioner to an extent of 10% and accordingly, awarded compensation as hereunder: