Compensation for injuries must reflect actual circumstances; contributory negligence cannot unjustly reduce recovery when not causally related to injuries sustained.

JUDGMENT :

S. Sounthar, J.

The appellant/injured claimant, not being satisfied with the quantum of compensation awarded by the Motor Accident Claims Tribunal (Special Sub Judge, No.II (FAC)), Villupuram, in M.C.O.P.No.296 of 2017, dated 15.10.2019, has come by way of this Civil Miscellaneous Appeal.

2. The appellant/claimant met with an accident on 09.10.2005, when he travelled as a pillion rider in Motor Vehicle driven by one Bharath. It is the case of the claimant that Tipper lorry bearing registration No.PY-01-AB-3238, which came in the opposite direction caused the accident and as a result of which, he suffered fracture in the left femur. Since no arguments were advanced on the question of negligence and liability, necessary facts leading to the fixation of negligence and liability by the Tribunal not discussed herein.

3. Heard the learned counsel for appellant/claimant and the learned counsel for second respondent/Insurance Company.

4. The learned counsel appearing for the appellant submits that the claimants suffered fracture in the left femur and at the time of accident, he was employed as a milk vending boy. The learned counsel further submitted that the Tribunal committed error in fixation of contributory negligence on the claimant at the rate of 15% on the ground that the appellant/claimant failed to wear helmet. The learned counsel also submitted that the Tribunal has not granted any amount towards loss of amenities and therefore, the compensation fixed by the Tribunal needs enhancement.

5. The learned counsel appearing for the contesting 3^rd respondent/insurance company would submit that the claimant failed to wear helmet and hence, committed an offence under Section 129 of MOTOR VEHICLES ACT and therefore, the Tribunal is justified in fixing 15% of contributory negligence on the claimant. He further submitted that the claimant has not suffered any serious injury so as to affect the avocation and hence Tribunal rightly awarded compensation on percentage basis.

6. This Court carefully considered the submissions made on either side and the materials available on record.

7. A reading of the claim petition would suggest that at the time of accident, the claimant was a college going student and he was also employed as a milk vending boy. Based on Ex.P2-school certificate and Ex.P3-Discharge certificate, the Tribunal came to the conclusion that the claimant suffered fracture in the left femur and he was operated for the same. The internal plate fixation was also done as a result of which, the claimant suffered a shortage of “one inch” in the left leg. The Tribunal based on Ex.C1-disability certificate issued by the Medical Board fixed disability at 10% and calculated the compensation on percentage basis. The accident had occurred on 09.10.2005, therefore, the Tribunal is justified in fixing compensation at the rate of Rs.2,000/- per percentage of disability. Hence, the amount of Rs.20,000/- fixed under the head permanent disability need not be interfered with.

8. Admittedly, the claimant failed to wear a helmet at the time of accident, therefore, the Tribunal fixed contributory negligence of 15% on the claimant and deducted proportionate compensation as mentioned earlier. The claimant suffered a fracture in the left femur and there is no head injury. In such circumstances, his failure to wear helmet has nothing to do with the injuries suffered by him. The Tribunal ought not to have fixed the contributory negligence on the appellant/claimant and deducted 15% compensation amount payable to the claimant. Accordingly, the said finding of the Tribunal is set aside.

9. As per the disability certificate Ex.C1, the claimant suffered shortage of h