Contributory negligence cannot be applied when the claimant does not suffer a head injury; compensation amounts were adjusted to reflect accurate damages.

JUDGMENT :

(S. SOUNTHAR, J.) 

Aggrieved by the quantum of compensation fixed by the Motor Accident Claims Tribunal, Namakkal, the claimant has come by way of this Civil Miscellaneous Appeal.

2. It is the case of the appellant/claimant that on 06.12.2016, the appellant/claimant travelled in TVS Heavy Duty Two Wheeler bearing Registration No.TN 29 BB 6393 from Perumbalai to Metcheri Road near Thoppaiyar, at that time, a Maruthi Car bearing Registration No. TN 07 V 9832 belonging to the 1^st respondent came from opposite direction in a rash and negligent manner and dashed against the petitioner's vehicle. The appellant/claimant suffered fracture and multiple injuries all over his body. The claimant/appellant was inpatient for 8 days. The petitioner is a Mason by profession. The injuries suffered by him affected his earning capacity. Therefore, the claimant/appellant laid motor accident claims petition seeking compensation of Rs.10,00,000/-.

3. The 1^st respondent remained exparte before the Tribunal.

4. The 2^nd respondent/Insurance Company filed counter affidavit denying all the averments found in the claim petition and disputed it's liability.

5. Before the Tribunal, the claimant/appellant was examined as PW.1 and Medical witness was examined as PW.2. The Insurance Company Official of the 2^nd respondent was examined as RW.1.

6. Based on the evidence available on record, the Tribunal came to the conclusion that accident had taken place due to the rash and negligent driving of the 1^st respondent's vehicle. The Tribunal also fixed contributory negligence on the claimant on the ground that he failed to wear helmet at the time of accident. The negligence on the part of the claimant was fixed at 15% and 85% of the negligence was fastened on the driver of the 1^st respondent's vehicle.

7. The 2^nd respondent has not filed any appeal questioning the negligence on the part of driver of the 1^st respondent's vehicle. The learned counsel appearing for the appellant submits that the appellant/claimant has not suffered any head injury and therefore, fixing of contributory negligence on the part of the appellant is not sustainable. The learned counsel further submits that accident had taken place in the year December-2016, therefore, the amount fixed on percentage basis shall be enhanced. The learned counsel also submits that having regard to the date of accident, the amount of Rs.9,000/- fixed by Tribunal as monthly income, shall also be enhanced and hence, amount under the head loss of income shall be enhanced. It is also submitted that no amount was granted by the Tribunal under the head of attendant charges and loss of earning, pain and suffering.

8. The learned counsel appearing for the 2^nd respondent submits that under Section 129 of the Motor Vehicles Act, 1988 , the driver of the motor vehicle is expected to wear helmet. Since the appellant/claimant was driving the vehicle without wearing helmet, the Tribunal was justified in fixing 15% of contributory negligence on the part of the claimant. The learned counsel further submits that the Tribunal awarded Rs.65,000/- under the head of pain and suffering and the same is on higher side having regard to the fact the appellant/claimant was inpatient only for 8 days.

9. A perusal of the typed-set of papers would suggest that the appellant/claimant suffered following injuries:-

(1) Left tibial plateau (Schatzker type VI) type I open fracture.

(2) Contaminated Lacerated wound with exposed cut muscle over left thigh.

(3) Contaminated Lacerated wound with skin avulsion flap over right thigh.

10. Therefore, it is clear that the claimant has not suffered any head injury. If the injury suffered by the petitioner is a head injury, the Tribunal is entitled to fix contributory negligence on the part of the victim on the ground that he failed to wear the helmet. In the case on hand, the claimant suffered injuries only in the limbs of the body. Therefore, the Tribunal is not justified in fixing contributory negligence at t