As per case facts, father Periyasamy and son Sozhapandiyan were injured in a motorcycle accident caused by the first respondent's negligent driving. The Tribunal awarded compensation to both. Periyasamy and ...
2026:MHC:123C . M . A . N O S . 1 9 0 2 , 2 3 0 2 A N D 2 3 0 3 O F 2 0 2 2
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 02 / 01 / 2026
JUDGMENT DELIVERED ON : 09 / 01 / 2026
CORAM:
THE HONOURABLE MR. JUSTICE N.SATHISH KUMAR
AND
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
C.M.A.NOS.1902, 2302 AND 2303 OF 2022
AND
C.M.P. NO.13935 OF 2022
IN
C.M.A. NO.1902 OF 2022
C.M.A. NO.1902 OF 2022
The Divisional Manager
The Oriental Insurance Company Limited
No.32/13, Vijayalakshmi Complex,
Phase – II, Sathuvachari,
Vellore. ... Appellant /
2
nd Respondent
Versus
1. Periyasamy ...1
st Respondent /
Petitioner
2. Sundaresan ... 2
nd Respondent /
1
st Respondent
Note: Second respondent set ex-
parte in the Original Petitions.
Hence, notice dispensed with.
PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988, praying to set aside the Award and Decree dated April
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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).
For Appellant : Mr.R.Sivakumar
For Respondent-1 : Ms.M.Malar
For Respondent-2: Notice dispensed with
C.M.A. NO.2302 OF 2022
Periyasamy ... Appellant /
Petitioner
Versus
1. Sundaresan
2. The Divisional Manager
The Oriental Insurance Company Limited
No.32/13, Vijayalakshmi Complex,
Phase – II, Sathuvachari,
Vellore. ... Respondents /
Respondents
PRAYER: 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).
For Appellant : Ms.M.Malar
For Respondent-1: No appearance
For Respondent-2 : Mr.R.Sivakumar
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C.M.A. NO.2303 OF 2022
Chozhapandiyan ...Appellant /
Petitioner
Verus
1.Sundaresan
2.The Divisional Manager
The Oriental Insurance Company Limited
No.32/13, Vijayalakshmi Complex,
Phase – II, Sathuvachari,
Vellore. ... Respondents /
Respondents
PRAYER: 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).
For Appellant : Ms.M.Malar
For Respondent-1: No appearance
For Respondent-2 : Mr.R.Sivakumar
COMMON JUDGMENT
R.SAKTHIVEL, J.
On June 30, 2018 at about 21.30 hours, a father and son duo was
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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.
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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.
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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.
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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
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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 cross-
examination 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
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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:
Compensation for Sozhapandiyan, the petitioner
in M.C.O.P. No.613 of 2022
Sl.No. Head Amount
1.Loss due to 20% Functional Disability Rs. 1,00,000/-
2.Pain and Sufferings Rs. 35,000/-
3.Extra Nourishment Rs. 10,000/-
4.Attender Charges Rs. 10,000/-
5.Loss of income during the treatment period Rs. 30,000/-
6.Transportation Expenses Rs. 10,000/-
7.Loss of Amenities Rs. 50,000/-
Total Compensation Rs. 2,45,000/-
Compensation for Periyasamy, the petitioner
in M.C.O.P. No.616 of 2022
Sl.No. Head Amount
1.Loss due to 30% Functional Disability Rs. 20,28,298/-
2.Pain and Sufferings Rs. 50,000/-
3.Extra Nourishment Rs. 25,000/-
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4.Medical Expenses Rs. 7,27,097/-
5.Attender Charges Rs. 25,000/-
6.Transportation Expenses Rs. 25,000/-
7.Loss of Amenities Rs. 1,00,000/-
Total Compensation
Rs.
29,80,395/-
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:
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(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
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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
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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.
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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
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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 -
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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
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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 ex-
parte. 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
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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 cross-
examined 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
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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
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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 day-
to-day activities on his own much less perform his duties as Driver and
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hence, he suffers from 100% functional disability.
24. The petitioner - Periyasamy obtained treatment from various
hospital and the particulars are as tabulated hereunder:
Sl.
No.
Hospital
Name
Exhibit
Date of
Admission
Date of
Discharge
Treatment Given Amount paid
1.
Government
Hospital
30.06.201830.06.2018 First aid-
2.
Christian
Medical
College,
Vellore
Ex-P.12 -
Discharge
Summary
01.07.201811.07.2018
Bilateral
frontotemporal
decompressive
craniotomy on
02/07/2018.
The temporalis
muscle was
contused bilaterally
more on the left
side. There was
linear fracture of
the left temporal
bone. Dura was
range before dural
opening. There was
a thin acute
subdural hematoca
in the left frontal
and temporal
region. The left
temporal lobe was
contused at the
temporal pole and
posterior part of the
superior temporal
gyrus. At the end of
surgery brain was
lax and pulsatile
Rs. 3,26,045.66/-
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3.
Trinity Acute
Care Hospital
Ex-P.1311.07.201830.07.2018
2 lacerations over
the right elbow
measuring 2 x 1 x1
cm each. CT
revealed oedema
causing effacement
of basal cisterns,
third ventricle and
convexity
subarachanoid
spaces. Was treated
conversatively with
Mannitol,
hydration,
Hypertonic saline,
antiepileptics,
analgesics and
antacids.
Repeat CT showed
increase in the
perilesional edema
around the
basifrontal and left
temporal contusions
causing increased
mass effect on the
left lateral ventricle
and midline shift of
1cm to the right.
Hence Bilateral
fronto temporal
decompressive
craniotomy was
done on 2/7/18.
Post operatively he
was ventilated on
5/7/18. In view of
need for long term
airway protection,
tracheostomy was
done on 6/7/18.
Gradually he was
weaned off from
ventilator. During
his stay in ICU, had
intermittent high
grade fever and
started on empirial
antibiotics. Urine
culture grew E coli,
Klebsiella and
sputum culture
grew Pseudomonos
and Klebsiella.
Then started on
Gentamycin as per
culture sensitivity
Doctor Consultation
fees- Rs. 26,000/-
Medicines-
Rs.1,15,512.88/-
Total-
Rs. 1,41,512.88/-
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4.
Trinity Acute
Care Hospital
Ex-P.3017.09.201825.09.2018
The bicronal scalp
incision was
reopened on the
right side, scalp flap
raised upto the
orbital margin and
the skull bone was
exposed all around
the defect. Titanium
mesh was modeled
and fixed with
screws with
periosteum.
Hemostasis
secured. Suction
drain instituted.
Scalp wound closed
in layers.
Doctor Consultation
fees-Rs. 1,49,500/-
Medicines-
Rs. 96,516.10/-
Total-
Rs. 2,46,016.10/-
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5.
Mahatma
Gandhi
Hospital
Ex-P.2209.01.201911.01.2019
Fifty five year old
Male
Mr.Periyasamy was
brought to the OPD
six months post
trauma with
multiple episodes of
seizures and
difficulty in speech.
He had undergone
bilateral frontal and
temporal
decompressive
craniectomy for
bilateral frontal
contusions in June
2018 and bilateral
frontal and
temporal
cranioplasty
elsewhere. He was
admitted and
treated with oral
anti-epileptics,
analgesics and other
supportive
measures. His
speech problem was
evaluated by ENT
surgeon and was
advised
rehabilitative
measures. His anti-
epileptic drugs were
adjusted.
Psychiatrist
adjusted his anti-
depressants. He was
discharged with
advice to review in
Neurosurgery OPD
-
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6.
Mahatma
Gandhi
Hospital
Ex-P.3302.01.202004.01.2020
Fifty five year old
Mr.Periyasamy was
brought to the OPD
with two episodes
of seizures. He had
undergone bilateral
frontal and
temporal
craniectomy for
bilateral frontal
contusions in June
2018 and bilateral
frontal and
temporal
cranioplasty
elsewhere. He was
admitted and
treated with oral
anti-epileptics,
analgesics and other
supportive
measures. His anti-
epileptic drugs were
optimised. He had
no further episodes
of seizures. He was
discharged with
advice to review in
Neurosurgery OPD
-
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
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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
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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 day-
to-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
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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
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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:
For Individuals (Resident or Non-Resident) below 60 Years
Taxable Income Range (INR) Tax Rate
Up to Rs.2,50,000 Nil
Rs.2,50,001 to Rs.5,00,000 5% (of amount exceeding Rs.2,50,000)
Rs.5,00,001 to Rs.10,00,000?12,500 + 20% (of amount exceeding Rs.5,00,000)
Above Rs.10,00,000 ?1,12,500 + 30% (of amount exceeding Rs.10,00,000)
32. Calculating the income tax payable by the petitioner -
Periyasamy as per the above slabs, he would have had to pay Rs.58,067/-
annually. After deducting the income tax payable, the annual income of
Periyasamy would be Rs.6,69,769/-. The appropriate multiplier for the age
of 56 years is 9 as per the Judgment of Hon'ble Supreme Court in Sarla
Verma -vs- Delhi Transport Corporation, reported in (2009) 6 SCC 121.
With the multiplier of 9, the total compensation under the head of loss of
income would be Rs.60,27,921/-. The following table summarizes the
calculation of compensation towards loss of income:
Sl.no. Description Amount
1.Monthly Salary Rs. 52,742/-
2.Adding Future Prospects- 15% Rs. 60,653/-
3.Annual Income (12 months) Rs. 7,27,836/-
4.Income Tax Deduction (IT- Rs. 58,067/-) Rs. 6,69,769/-
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5.Applying Multiplier of 9 Rs. 60,27,921/-
Total Compensation under the head of loss of incomeRs. 60,27,921/-
33. The Hon'ble Supreme Court in Maya Singh -vs- Oriental
Insurance Company Limited, reported in 2025 SCC OnLine SC 266 as
well as in various other cases, have held that in general split multiplier
method is not to be applied unless for special reasons. In this case, as per
the evidence of P.W.3 - TNSTC Superintendent, as per the policy decision
of the Government of Tamil Nadu, TNSTC provides two years extension
in service after superannuation, and hence, if not for the accident, the
petitioner - Periyasamy would have served till March 31, 2023. This
means he had more years of service. Further, perusal of the various
medical records available on record shows that Periyasamy was hale and
healthy before the accident. He was not suffering from any Blood Pressure
issues or Diabetes before the accident as it could be seen from Ex-P.13 –
Discharge Summary. This means his chances of income generation post-
retirement is remote. In these circumstances, this Court finds no reason to
adopt split multiplier method in this case.
34. As regards the contention of learned Counsel for the insurance
company regarding monthly pension and other terminal benefits, it is
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apposite to cite here the decision of the Hon'ble Supreme Court in Lal Dei
-vs- Himachal Road Transport, reported in (2007) 8 SCC 319, wherein
the Hon'ble Supreme Court following its decision in Helen C. Rebello -vs-
Maharashtra SRTC, reported in (1999) 1 SCC 90, held as follows:
'4. ...The Motor Accidents Claims Tribunal as well as the
High Court could not have deducted the amount of family
pension given to the family while calculating the dependency of
the claimants. In Helen C. Rebello v. Maharashtra SRTC AIR
1998 SC 3191: (1999) 1 SCC 90 this Court has specifically
dealt with this question and said that the family pension is
earned by an employee for the benefit of his family in the form
of his contribution in the service in terms of the service
conditions receivable by the heirs after his death. The heirs
receive family pension even otherwise than the accidental
death. There is no co-relation between the two and therefore,
the family pension amount paid to the family cannot be
deducted while calculating the compensation awarded to the
claimants. In view of this, the appeal is allowed. The order of
deduction of the family pension is set aside. Accordingly, the
Appellants would be entitled for an amount of Rs. 10,27,000 as
compensation with interest at the rate of 9% from the date of
the filing of the petition.'
34.1. Further, the Hon'ble Supreme Court in Vimal Kanwar -vs-
Kishore Dan, reported in (2013) 7 SCC 476, relying on Helen’s Case
(cited supra), held as follows:
'19. The aforesaid issue fell for consideration before this
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Court in Helen C. Rebello vs. Maharashtra SRTC (1999) 1
SCC 90. In the said case, this Court held that provident fund,
pension, insurance and similarly any cash, bank balance,
shares, fixed deposits, etc. are all a “ pecuniary advantage ”
receivable by the heirs on account of one ’ s death but all these
have no correlation with the amount receivable under a statute
occasioned only on account of accidental death. Such an
amount will not come within the periphery of the Motor
Vehicles Act to be termed as “ pecuniary advantage ” liable for
deduction. The following was the observation and finding of
this Court:
“35. Broadly, we may examine the receipt of the
provident fund which is a deferred payment out of
the contribution made by an employee during the
tenure of his service. Such employee or his heirs are
entitled to receive this amount irrespective of the
accidental death. This amount is secured, is certain
to be received, while the amount under the Motor
Vehicles Act is uncertain and is receivable only on
the happening of the event, viz., accident, which may
not take place at all. Similarly, family pension is also
earned by an employee for the benefit of his family in
the form of his contribution in the service in terms of
the service conditions receivable by the heirs after
his death. The heirs receive family pension even
otherwise than the accidental death. No correlation
between the two. Similarly, life insurance policy is
received either by the insured or the heirs of the
insured on account of the contract with the insurer,
for which the insured contributes in the form of
premium. It is receivable even by the insured if he
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lives till maturity after paying all the premiums. In
the case of death, the insurer indemnifies to pay the
sum to the heirs, again in terms of the contract for
the premium paid. Again, this amount is receivable
by the claimant not on account of any accidental
death but otherwise on the insured's death. Death is
only a step or contingency in terms of the contract,
to receive the amount. Similarly any cash, bank
balance, shares, fixed deposits, etc. though are all a
pecuniary advantage receivable by the heirs on
account of one's death but all these have no co-
relation with the amount receivable under a statute
occasioned only on account of accidental death.
How could such an amount come within the
periphery of the Motor Vehicles Act to be termed as
“ pecuniary advantage ” liable for deduction. When
we seek the principle of loss and gain, it has to be on
a similar and same plane having nexus, inter se,
between them and not to which there is no semblance
of any co-relation. The insured (the deceased)
contributes his own money for which he receives the
amount which has no co-relation to the
compensation computed as against the tortfeasor for
his negligence on account of the accident. As
aforesaid, the amount receivable as compensation
under the Act is on account of the injury or death
without making any contribution towards it, then
how can the fruits of an amount received through
contributions of the insured be deducted out of the
amount receivable under the Motor Vehicles Act. The
amount under this Act he receives without any
contribution. As we have said, the compensation
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payable under the Motor Vehicles Act is statutory
while the amount receivable under the life insurance
policy is contractual. ” '
34.2. Furthermore, the Hon'ble Supreme Court in Sebastiani Lakra
-vs- National Insurance Company Limited, reported in (2019) 17 SCC
465 has held as follows:
'14. As far as the amounts of pension and gratuity are
concerned, these are paid on account of the service rendered by
the deceased to his employer. It is now an established principle
of service jurisprudence that pension and gratuity are the
property of the deceased. They are more in the nature of
deferred wages. The deceased employee works throughout his
life expecting that on his retirement he will get substantial
amount as pension and gratuity. These amounts are also
payable on death, whatever be the cause of death. Therefore,
applying the same principles, the said amount cannot be
deducted.'
34.3. Thus, the law is well settled that the family pension amount
cannot be deducted while computing the compensation payable to the
dependents of the deceased. This Court is of the considered view that the
same principle is equally applicable to the present case. This is because,
had the accident not occurred and had Periyasamy voluntarily retired from
service or attained superannuation, he would have been in a position to
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generate income through other means while continuing to receive pension.
He could have been employed elsewhere or could have run some business.
In other words, if not for the accident, Periyasamy could have earned
money in addition to his pension benefits. Only because of the accident, he
lost his entire earning capacity and the compensation awarded towards loss
of income is intended to compensate for such loss of earning capacity and
therefore, the receipt of pension cannot be treated as an impediment.
34.4. As functional disability of the petitioner - Periyasamy is
considered at 100%, there is no need to award compensation under the
head of the Loss of Amenities and hence, the same is liable to be removed.
In this regard reference may be made to Raj Kumar -vs- Ajay Kumar,
reported in (2011) 1 SCC 343, wherein Hon'ble Supreme Court observed
as follows:
"15. It may be noted that when compensation is awarded
by treating the loss of future earning capacity as 100% (or even
anything more than 50%), the need to award compensation
separately under the head of loss of amenities or loss of
expectation of life may disappear and as a result, only a token
or nominal amount may have to be awarded under the head of
loss of amenities or loss of expectation of life, as otherwise
there may be a duplication in the award of compensation. Be
that as it may."
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35. The Tribunal has rightly awarded a sum of Rs.7,27,097/- based
on the various medical records, bills as well as the evidence of doctors. As
regards the compensation under the other heads, they all seem to be just
and reasonable in the considered opinion of this Court. Hence, this Court
is inclined to confirm them. The compensation payable to the petitioner -
Periyasamy can be summarized through the following table:
Compensation for Periyasamy, the petitioner in M.C.O.P. No.616 of 2022
Sl.no. Head Amount
1.Loss of income Rs. 60,27,921/-
2.Pain and Sufferings Rs. 50,000/-
3.Extra Nourishment Rs. 25,000/-
4.Medical Expenses Rs. 7,27,097/-
5.Attender Charges Rs. 25,000/-
6.Transportation Expenses Rs. 25,000/-
Total Compensation Rs.68,80,018/-
CONCLUSION
36. Resultantly, C.M.A. Nos.1902 and 2303 of 2022 are dismissed,
and C.M.A. No.2302 of 2022 is partly allowed in the following manner:
(i)The compensation awarded in M.C.O.P. No.616 of
2018 is hereby enhanced to Rs.68,80,018/- [Rupees
Sixty Eight Lakhs Eighty Thousand and Eighteen
only].
(ii)The second respondent / insurance company is
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directed to deposit the enhanced compensation along
with 6% interest per annum from the date of Original
Petition till realisation, less the amount if any already
deposited, within a period of six (6) weeks from the
date of receipt of a copy of this Common Judgment, to
the credit of M.C.O.P. No.616 of 2018 on the file of
the Motor Accident Claims Tribunal (Special Sub
Court) Tiruvannamalai.
(iii)Upon such deposit by the insurance company, the
Tribunal shall deposit Rs.25,00,000/- in an interest
bearing fixed deposit in a nationalised bank renewable
periodically and shall permit withdrawal of the interest
accrued thereon every six (6) months. A lump sum
portion out of the deposited amount of Rs.25,00,000/-
may be disbursed upon the Tribunal's satisfaction of
necessity to the petitioner – Periyasamy. The Tribunal
shall ensure that the deposited amount of
Rs.25,00,000/- and the interest accruing thereon are
used only for the welfare of the petitioner -
Periyasamy.
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(iv)The Tribunal shall disburse the remaining amount in
the deposit made by the second respondent / insurance
company, to the wife / next friend of the petitioner -
Periyasamy.
(v)In all other aspects the Award of the Tribunal holds
good.
37. In view of the facts and circumstances of this case, there shall be
no order as to costs in all the Civil Miscellaneous Appeals. Connected
Civil Miscellaneous Petition is closed.
[N.S.K., J.] [R.S.V., J.]
09 / 01 / 2026
Index : Yes
Neutral Citation: Yes
Speaking Order : Yes
TK
To
The Motor Accident Claims Tribunal
(Special Sub Court)
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Tiruvannamalai.
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N.SATHISH KUMAR, J.
AND
R.SAKTHIVEL, J.
TK
PRE-DELIVERY COMMON JUDGMENT MADE IN
C.M.A.NOS.1902, 2302 AND 2303 OF 2022
021C.M.A. NOS.423 AND 828 OF 202C.M.A. NOS.1902 AND 2302OF
1
C.M.A. NOS.3927 AND 3204 OF 2019 AND 149 OF 2022
C.M.A. NOS.423 AND 828 OF 2021
09 / 01 / 2026
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