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Judgment
B. Rajendran, J.—The Appellant/Insurance Company has come forward with this appeal as against the award granted by the Tribunal on
the ground that the Tribunal has failed to take into consideration that the injured person was travelling in a vehicle violating the policy conditions
viz., motorcycle carrying three passengers, which is against Section 128 of the Motor Vehicles Act. When there is a violation of policy condition,
the claimant ought to have contributed to the accident. Therefore, the contributory negligence aspect should have been considered by the Tribunal.
The learned Counsel for the Appellant/Insurance Company would contend that the quantum of compensation granted by the Tribunal in respect of
the injuries suffered by the claimant is high. Therefore, they have come forward with this appeal.
The learned Counsel for the first Respondent/claimant would mainly contend that the claimant was aged about 54 years at the time of accident
and she has sustained the following injuries:
(1) Avulsion of left ear lobule, (2) Skin loss over the lateral aspect of right ear pinna upper 1/3rd. The upper 2/3 rd of the ear is avulsed with
multiple fracture of the cartilage, (3) Sutured wound 10 cm below right knee, (4) Punctured wound 2 x 1 cm left lower limb, (5) Paresis right upper
limb, (6) Tenderness over right clavicle, and (7) Tenderness over left tibia.
As per the MRI taken, the first Respondent/claimant has sustained the following injuries:
Fracture of the posterior element of C2 with Disruption of anterior and posterior longitudinal ligaments causing forward lis thesis of C2 over C3
and fracture of anterior ring of C1
With such multiple fractures, the claimant being a lady, hospitalized as an inpatient between 16.03.2000 and 30.03.2000 continuously for 15
days and thereafter, took treatment as an out patient between 30.03.2000 and 28.04.2000, the amount of pain and suffering undergone by the
injured person was exorbitant. Therefore, even though multiplier theory was adopted, the amount granted under the head ''permanent disability'' is
only Rs. 1,98,000/-. Further, including medical bills, extra nourishment and pain and suffering, only a sum of Rs. 4,46,676/-has been awarded.
Therefore, the quantum of compensation granted by the Tribunal was reasonable.
In so far as the contributory negligence is concerned, the learned Counsel for the first Respondent/claimant would contend that even though it is
wrong on the part of the claimant to travel in a motorcycle along with two others, yet the accident was only due to the negligence of the driver of
the tipper lorry and rightly the first information report also was registered against the driver of the tipper lorry. Therefore, there cannot be any
deductions for contributory negligence and therefore, the learned Counsel for the claimant would seek for dismissal of the appeal.
Heard both sides. The short point for consideration in this appeal is whether the claimant has contributed to the accident and she would be liable
for contributory negligence? and Whether the Court below has granted compensation correctly?.
The accident is admitted. The liability is questioned only on the ground of contributory negligence. It is an admitted case that the injured was
travelling in a two wheeler along with two others, which according to the Appellant/Insurance Company is contrary to the provisions of Section
128 of the Motor Vehicles Act.
Section 128 of the Motor Vehicles Act reads as follows:
(1) No driver of a two-wheeled motorcycle shall carry more than one person in addition to himself on the motorcycle and no such person shall be
carried otherwise than sitting on a proper seat securely fixed to the motorcycle behind the driver''s seat with appropriate safety measures.
(2) In addition to the safety measures mentioned in Sub-section (1), the Central Government may, prescribe other safety measures for the drivers
of two-wheeled motorcycles and pillion riders thereon
Therefore, Section 128 of the Motor Vehicles Act clearly contemplates that driving of a two wheeler with three persons is a punishable offence
and a person who travels like that, violates not only the policy condition but also violates the law of the land. Therefore, when a person, who
violates the law of the land, cannot claim total burden or total negligence only on the part of the other vehicle, which caused the accident. In this
case, no doubt, F.I.R. is lodged as against the driver of the tipper lorry, which dashed against the motorcycle and it is also admitted that the driver
of the lorry has admitted the guilt and paid fine. Even in such cases, when the claim is being made where an injured person could absolve himself of
the legal liability of carrying the person more in number in a motorcycle, the answer could only be the person will not be entitled to claim total
immunity from the clutches. When law prohibits something, he cannot violate and then later say that the negligence can only be on the part of the
other person. Therefore, for the accident, the person has contributed something. In this case, the accident had occurred by virtue of carrying three
passengers. In this connection also, reliance is placed on a decision of the Hon''ble Division Bench of this Court reported in 2009 (1) TN MAC
411 (Division Bench) National Insurance Company Ltd. v. S. Chitra and Ors., wherein, the Hon''ble Division Bench of this Court has categorically
stated that they would strongly deprecate the practice of drivers of two wheelers carrying more than one person besides themselves in their
vehicles. A two wheeler is meant for a driver and a pillion rider alone and no more passengers. Therefore, it is very clear that there is a violation of
Rule by the claimant and also by virtue of number of people travelling in the vehicle, there was a wobbling in the vehicle and ultimately, resulted in
the accident. Definitely, the contribution of the injured person should be taken note of.
In paragraph Nos. 10, 11 and 12 of the above referred Judgment, the Hon''ble Division Bench of this Court had observed as follows:
It is clear that the offending vehicle had swerved sharply across the road. But the deceased who was entering the other side of the road turning
north because of the road block ought to have been very cautious, since he was entering the wrong side of the road. It is at this point the accident
appears to have occurred due to loss of balance. The fact that he was carrying two passengers besides himself has definitely resulted in the head-
on collision and from the rough sketch we are also able to see that the deceased should have seen the vehicle coming from the opposite direction.
Therefore, definitely there is an element of contributory negligence especially in cases of head-on collision.
In this regard, we would like to strongly deprecate the practice of drivers of two wheelers carrying more than one person besides themselves in
their vehicles. A Two wheeler is meant for a driver and a pillion rider alone and no more passengers. We hope that the authorities who regulate the
traffic will take strict action in this regard.
We are not able to understand whether the drivers value their lives so cheaply; that they are willing to take the risk of death or grievous injury.
If they die they leave a family which suffers or if they are hopelessly injured, they may become like vegetables and be a burden on the surviving
family. Either way this risk is not worth taking. What is the duty of cyclists who turn casually, pedestrians who ignore pedestrian crossing and do
gymnastics on the median. If such persons lose their lives or are injured, are the four wheeler drivers always to blame? With the increase of motor
vehicles, accidents have also increased. In consonance with the social philosophy behind the provisions, we have legal pronouncements which say
that the liability of the insurer is not purely and simply a tortious liability. This is the spirit with which Section 163A has been acted. But every user
of the road from a pedestrian to a heavy vehicle driver owes a duty of care and caution. Recently the police of Union Territory of Puducherry
rewarded persons followed traffic rules. Such efforts deserve to be congratulated.
In spite of warning of this Court earlier, deprecating the practice of the drivers of two wheelers carrying more number of passengers,
unfortunately, as rightly pointed out, they do not care about their lives when they take the entire family in a two wheeler, which has to be
deprecated and therefore, as rightly held by the Hon''ble Supreme Court, this Court only would say that by carrying extra person, the injured
person definitely has contributed to the accident and 50% is liable to be borne by the injured person as he has violated Section 128 of the Motor
Vehicles Act. Hence, this Court is of the view that contributory negligence can be fixed at 50%.
Now, we will take up the quantum of compensation granted by the Tribunal. As far as the quantum is concerned, the injuries sustained by a
house wife aged about 54 years is enormous viz., (1) Avulsion of left ear lobule, (2) Skin loss over the lateral aspect of right ear pinna upper 1/3rd.
The upper 2/3 rd of the ear is avulsed with multiple fracture of the cartilage, (3) Sutured wound 10 cm below right knee, (4) Punctured wound 2 x
1 cm left lower limb, (5) Paresis right upper limb, (6) Tenderness over right clavicle, and (7) Tenderness over left tibia.
As rightly pointed out by the learned Counsel for the first Respondent/claimant, the pain and suffering undergone by the claimant is enormous.
She has not only had multiple fractures but even her movement in neck is totally restricted. As per the Doctor''s evidence, the disability suffered by
the claimant was fixed at 75%. In fact, multiplier method could be adopted in a case of extreme injury. Be that as it may, even if multiplier theory is
not adopted, if 75% disability is taken as it is, Rs. 2,000/-per 1% of disability could be awarded as per this Hon''ble Court decision. Taking into
consideration the decision of this Hon''ble Court, Rs. 1,50,000/-(75 x 2000) only could be awarded whereas the Tribunal, by applying multiplier
theory, has granted a sum of Rs. 1,98,000/-for permanent disability. But, the Tribunal has not granted any money towards attender charges.
Attendant is necessary for a lady, who was hospitalized for 15 days and thereafter took continuous treatment as an out patient for further 30 days.
Therefore, a sum of Rs. 20,000/-could be granted towards attendant charges. The Tribunal, has also not granted any amount towards amenities
and for transportation. Therefore, Rs. 20,000/-easily could be awarded for transportation and amenities. Taking into consideration the quantum of
Rs. 1,98,000/-though adopted multiplier method, the same was equivalent to the award which I have now arrived at. In other respects, the
Tribunal has granted a sum of Rs. 75,000/-towards pain and sufferings and Rs. 25,000/-towards extra nourishment. Taking into consideration the
multiple fracture, the amount awarded under the head of pain and suffering is reasonable. Of course, the first Respondent/claimant claimed to have
produced medical bills to the tune of Rs. 1,48,676/-. It has rightly been approved. Therefore, even though multiplier theory was adopted, in the
revised calculation, which I have made in the appeal the total comes to Rs. 4,38,676/-.
Since the said amount is equivalent to the actual amount awarded by the Tribunal, the amount which is now arrived at by this Court is a
reasonable amount. Therefore, the award amount of Rs. 4,46,676/-is confirmed. But at the same time, since the injured has contributed to the
accident, 50% of the amount has to be borne by her.
In the result, the civil miscellaneous appeal is partly allowed directing the first Respondent/claimant to bear 50% of the amount awarded by the
Tribunal for contributory negligence.
It is stated by the learned Counsel for the Appellant/Insurance Company that they have deposited the entire award amount before the Tribunal.
Out of the total amount of Rs. 4,46,676/-deposited by the Appellant/Insurance Company, the Appellant/Insurance Company is permitted to
withdraw Rs. 2,23,338/-along with accrued interest and the first Respondent/ claimant is permitted to withdraw the balance amount. No costs.
Consequently, the connected miscellaneous petition is closed.