JUDGMENT (Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree dated 30.04.2021 made in M.C.O.P.No.1886 of 2018 on the file of Motor Accident Claims Tribunal, Special District Court, Tiruppur.) V.M. Velumani, J. 1. This Civil Miscellaneous Appeal has been filed by the appellant/Insurance Company against the judgment and decree dated 30.04.2021 made in M.C.O.P.No.1886 of 2018 on the file of Motor Accident Claims Tribunal, Special District Court, Tiruppur. 2. The appellant/Insurance Company is the 2nd respondent in M.C.O.P.No.1886 of 2018 on the file of Motor Accident Claims Tribunal, Special District Court, Tiruppur. The 1st respondent representing through natural guardian and his wife S.Nithiya Priyanga, filed the said claim petition claiming a sum of Rs.60,00,000/- as compensation for the injuries sustained by him in the accident that took place on 02.07.2018. 3. According to the 1st respondent, on the date of accident i.e., on 02.07.2018 at about 5.15 P.M., while he was riding his Discover motorcycle bearing Registration No.TN-41-AQ-8507 on Coimbatore to Pollachi Main Road, near Kandha Mahal, from North to South direction, the 2nd respondent, rider-cum-owner of Fascino two wheeler bearing Registration No.TN-41-AS- 8447, rode the same in a rash and negligent manner, dashed against the motorcycle driven by the 1st respondent and caused the accident. In the accident, the 1st respondent sustained head injury and grievous injuries all over the body. Therefore, the 1st respondent has filed the above claim petition claiming compensation against the 2nd respondent, rider-cum-owner of the offending two wheeler and appellant/Insurance Company, insurer of the said two wheeler. 4. The 2nd respondent, rider-cum-owner of offending two wheeler remained exparte before the Tribunal. 5. The appellant/Insurance Company filed counter statement denying the averments made in the claim petition and stated that the appellant has not received any particulars from the 1st respondent such as FIR copy, policy and driving license. The accident has occurred only due to negligence of the 1st respondent, rider of the motorcycle bearing Registration No.TN-41-AQ-8507. The owner and insurer of the said motorcycle are not made as parties and hence, the claim petition is bad for non-joinder of necessary parties. At the time of accident, the 1st respondent did not wear helmet, which is in violation of statutory provisions. Therefore, the appellant/Insurance Company is not liable to pay any compensation to the 1st respondent. The owner and insurer of the said motorcycle are not made as parties and hence, the claim petition is bad for non-joinder of necessary parties. At the time of accident, the 1st respondent did not wear helmet, which is in violation of statutory provisions. Therefore, the appellant/Insurance Company is not liable to pay any compensation to the 1st respondent. In any event, the amount claimed by him is excessive and prayed for dismissal of the claim petition. 6. Before the Tribunal, the 1st respondent examined his wife S.Nithya Priyanga as P.W.1, one Ahamed Meeran, co-worker of the 1st respondent was examined as P.W.2 and 13 documents were marked as Exs.P1 to P13. The appellant/Insurance Company did not let in any oral and documentary evidence. The disability certificate issued by the Medical Board is marked as the Court document, Ex.X1. 7. The Tribunal considering the pleadings, oral and documentary evidence, held that the accident occurred due to rash and negligent riding by the 2nd respondent, rider-cum-owner of the offending two wheeler bearing Registration No.TN-41-AS-8447 and directed the appellant/Insurance Company being the insurer of the said vehicle to pay a sum of Rs.39,87,957/- as compensation to the 1st respondent. 8. Against the said award dated 30.04.2021 made in M.C.O.P.No.1886 of 2018, the appellant/Insurance Company has come out with the present appeal. 9. The learned counsel appearing for the appellant/Insurance Company contended that the Tribunal failed to conduct an impartial inquiry. P.W.1 and P.W.2 are not eye-witnesses to the accident. The 1st respondent did not examine any eye-witness. The accident has occurred in front of the petrol bunk. The 1st respondent, who was coming from petrol bunk, would have avoided the accident, had he noticed the vehicle coming on his side. At the time of accident, the 1st respondent was not wearing helmet and the Tribunal failed to fix contributory negligence on the part of the 1st respondent for not wearing helmet. The 1st respondent has stated in the claim petition in Column No.11 that he suffered “Head Injury (old RTA)”. The Tribunal failed to consider that 1st respondent suffered head injury in an earlier accident and was not fit to ride a motorcycle. The 1st respondent has not produced any document to show that he has to be represented by his wife. The Tribunal failed to consider that 1st respondent suffered head injury in an earlier accident and was not fit to ride a motorcycle. The 1st respondent has not produced any document to show that he has to be represented by his wife. The Tribunal failed to note that assessment of disability by the Medical Board is incorrect as the Medical Board failed to distinguish the injuries sustained in the earlier accident and this accident. The Tribunal erred in taking into consideration the entire 85% disability as loss of earning capacity without converting the same to whole body. The Tribunal in the absence of any materials with regard to income of the 1st respondent, erroneously fixed excessive amount of Rs.13,000/- as monthly income of the 1st respondent. The amounts awarded by the Tribunal under different heads are excessive and prayed for setting aside the award of the Tribunal and allowing the appeal. 10. The learned counsel appearing for the 1st respondent made submissions in support of the award passed by the Tribunal and contended that after the accident, the 1st respondent could not do any work as he was doing earlier. The Tribunal has given valid reason for fixing negligence on the 2nd respondent and awarding compensation by adopting multiplier method. The total compensation granted by the Tribunal is not excessive and prayed for dismissal of the appeal. 11. Heard the learned counsel appearing for the appellant as well as the learned counsel appearing for the 1st respondent and perused the entire materials on record. 12. It is the case of the 1st respondent that while he was riding his Discover motorcycle bearing Registration No.TN-41-AQ-8507 on Coimbatore to Pollachi Main Road, near Kandha Mahal, from North to South direction, the 2nd respondent, rider-cum-owner of Fascino two wheeler bearing Registration No.TN-41-AS-8447, rode the same in a rash and negligent manner, dashed against the motorcycle driven by the 1st respondent and caused the accident. In the accident, the 1st respondent suffered head injury and grievous injuries all over the body. To substantiate this, the 1st respondent examined his wife as P.W.1 through whom, he filed claim petition and marked F.I.R as Ex.P1. F.I.R. is registered against the 2nd respondent. In the accident, the 1st respondent suffered head injury and grievous injuries all over the body. To substantiate this, the 1st respondent examined his wife as P.W.1 through whom, he filed claim petition and marked F.I.R as Ex.P1. F.I.R. is registered against the 2nd respondent. On the other hand, it is the case of the appellant that accident has occurred due to negligence on the part of the 1st respondent, who while coming out from the petrol bunk failed to see the vehicle coming on his side and invited the accident. To prove this, the appellant has not examined any witness especially, the 2nd respondent. The Tribunal considering the materials placed before it, F.I.R. and in the absence of any evidence by the appellant, held that the accident has occurred due to rash and negligent riding by the 2nd respondent and fastened the liability on the appellant. There is no error in the said finding of the Tribunal warranting interference by this Court. 13. In the grounds raised in the present appeal (not in the counter statement), the learned counsel appearing for the appellant contended that the 1st respondent did not suffer injuries in the accident that occurred on 02.07.2018 and the injuries he suffered were due to earlier accident. In support of her contentions, the learned counsel appearing for the appellant referred to averments in the claim petition. The learned counsel appearing for the 1st respondent submitted that immediately after the accident on 02.07.2018, he was admitted in Dr.A.Krishnaraj Medical Foundation, Arun Hospital, Pollachi, subsequently, on 04.07.2018, he was shifted to KMCH, Coimbatore, filed two discharge summaries and marked the same as Ex.P10. (i). In the first discharge summary issued by Dr.A.Krishnaraj Medical Foundation, Arun Hospital, Pollachi, it was stated that he was admitted on 02.07.2018 and was discharged on 04.07.2018. In the Column in reason for admission, it is stated as follows: Patient brought semiconscious H/O – RTA, Two wheeler Vs Two wheeler while driving in two wheeler as a rider near Kandha Mahal – Kovai road around 4.50 pm on 2/7/18. H/O – (L) Ear bleeding (+) / Nasal bleeding (+). Patient came to Arun Hospital for management. F/H/P/HY – Nil relevant. H/O – (L) Ear bleeding (+) / Nasal bleeding (+). Patient came to Arun Hospital for management. F/H/P/HY – Nil relevant. Further, in the Column in Final Diagnosis with ICD Code, it is stated that the 1st respondent sustained – I) a) thin SDH in (R) Temporo Parietal Parenchyma, b) Hemorrhagic contusion with mild line shift 4 mm, II) a) Fracture Zygomatic arch (L), b) Fracture Temporal bone (L), c) Fracture Clavicle (L), d) Fracture Ribs (L), e) Fracture Scapula (L). (ii).In the 2nd discharge summary issued by KMCH, Coimbatore, it was stated that the 1st respondent was admitted on 04.07.2018 and discharged on 05.08.2018. In the Column in Final Diagnosis, it is stated that “Head Injury (old RTA), right temporal subdural hemorrhage with contusion, left clavicle fracture, left multiple rib fractures, multiple facial bone fractures, secondary hypertension, post traumatic diabetes insipidus”. (iii). The learned counsel appearing for the 1st respondent contended that in the 2nd discharge summary, it was mentioned as “old RTA”. In view of the fact that the 1st respondent was already admitted on 02.07.2018 at Dr.A.Krishnaraj Medical Foundation, wherein it has been stated that injury is “H/O RTA” and subsequently, when the 1st respondent was admitted in KMCH, Coimbatore, it was recorded as “Old RTA”, the 1st respondent suffered injuries only in the accident that occurred on 02.07.2018 and he was not involved in any earlier accident. The said contention has considerable force and is acceptable in view of the fact that appellant failed to plead and prove that the 1st respondent has not suffered injuries in the accident in question. As rightly contended by the learned counsel appearing for the 1st respondent, Ex.P10 contains two discharge summaries, one is issued by Dr.A.Krishnaraj Medical Foundation, Arun Hospital, Pollachi, saying that 1st respondent was admitted on 02.07.2018 for the injuries in RTA, he was treated as inpatient till 04.07.2018 and then shifted to KMCH, Coimbatore, on the same day. In view of the above facts, the contention of the learned counsel appearing for the appellant that the 1st respondent has not suffered any injuries in the present accident, is not acceptable. 14. As far as quantum of compensation is concerned, the 1st respondent was examined by the Medical Board, Tiruppur District and the Medical Board certified that the 1st respondent has suffered 85% permanent disability. 14. As far as quantum of compensation is concerned, the 1st respondent was examined by the Medical Board, Tiruppur District and the Medical Board certified that the 1st respondent has suffered 85% permanent disability. The appellant has not let in any evidence to disprove the disability assessed by the Medical Board. The Tribunal considering the disability certificate, which was marked as Ex.X1, nature of injuries and evidence of P.W.1, held that 1st respondent suffered 85% loss of earning capacity. At the time of hearing this appeal, the learned counsel appearing for the appellant contended that the Tribunal erred in granting compensation holding that 1st respondent suffered 85% loss of earning capacity as per the report of the Medical Board, instead of converting the disability for whole body. According to the appellant, percentage of disability fixed by the Tribunal for granting compensation for loss of earning capacity is excessive and the Tribunal ought to have converted the disability for whole body and granted compensation for loss of earning capacity. On the other hand, the learned counsel appearing for the 1st respondent contended that the 1st respondent has totally lost his earning capacity, he is confined to a wheel chair and only his wife is taking care of him in his normal activities including his basic needs. He further submitted that the 1st respondent will appear before this Court for being observed by this Court. In view of the rival submissions, we directed the 1st respondent to appear before this Court on 08.08.2022. On 08.08.2022, the 1st respondent appeared before this Court, he is confined to a wheel chair and we observed that he is totally disabled. In view of the above, there is no error in the award of the Tribunal granting compensation for 85% disability as per the report of the Medical Board by adopting multiplier method, holding that he suffered 85% loss of earning capacity. 15. The contention of the learned counsel appearing for the appellant is that 1st respondent was not wearing helmet at the time of accident, which has resulted in serious head injuries and 1st respondent has also contributed negligence for the injuries. The said contention has considerable force. This Court, in number of cases has fixed 15% contributory negligence on the part of the rider of the two wheeler for not wearing helmet at the time of accident. The said contention has considerable force. This Court, in number of cases has fixed 15% contributory negligence on the part of the rider of the two wheeler for not wearing helmet at the time of accident. The 1st respondent has not denied that he was not wearing helmet at the time of accident. Therefore, we fix 15% contributory negligence on the part of 1st respondent for not wearing helmet at the time of accident. The Tribunal considering the nature of injuries and disability suffered by the 1st respondent, awarded compensation under different heads, which are not excessive and the same are hereby confirmed. The appellant is liable to pay only 85% of the compensation awarded by the Tribunal. Thus, the compensation awarded by the Tribunal is modified as follows: S.No Description Amount awarded by Tribunal (Rs) Amount awarded by this Court (Rs) Award confirmed or enhanced or granted or reduced 1. Loss of earning 29,70,240 29,70,240 Confirmed 2. Medical bills 8,17,717 8,17,717 Confirmed 3. Pain and suffering 50,000 50,000 Confirmed 4. Extra nourishment 50,000 50,000 Confirmed 5. Transportation 25,000 25,000 Confirmed 6. Attendant charges 25,000 25,000 Confirmed 7. Loss of amenities 50,000 50,000 Confirmed Total 39,87,957 85% of the award amount 15% negligence fixed on the 1st respondent 33,89,763 Reduced by Rs.5,98,194/- (39,87,957 (-) 33,89,763) 16. With the above modification, the Civil Miscellaneous Appeal is partly allowed. The appellant/Insurance Company is directed to deposit a sum of Rs.33,89,763/- being 85% of the award amount along with interest at the rate of 7.5% per annum from the date of petition till the date of deposit, less the amount already deposited if any, within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit, the 1st respondent is permitted to withdraw the award amount now determined by this Court, along with interest and costs, after adjusting the amount if any, already withdrawn. The appellant/Insurance Company is permitted to withdraw the excess amount lying in the deposit to the credit of M.C.O.P.No.1886 of 2018 on the file of Motor Accident Claims Tribunal, Special District Court, Tiruppur, if the entire award amount has already been deposited by them. Consequently, connected Miscellaneous Petition is closed. No costs.