IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 17 / 06 /2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A.No.516 of 2011 & M.P.Nos.1 and 2 of 2011 United India Insurance Company Limited, No.64, Cate Centre, Armenium Street, Chennai – 1. ... Appellant /2nd Respondent Versus 1.Mr.R.Vinoth 2.Mr.Abdul Munaf ... Respondents/ Petitioner & 1st Respondent Prayer: The above appeal is filed under Section 173 of the Motor Vehicles Act, 1988 against the award and decree dated 18.02.2010 made in M.C.O.P.No.189 of 2008, on the file of Motor Accidents Claims Tribunal, IInd Small Causes Court, Chennai. For Appellant : Mr.G.Udayasankar For Respondents: Mr.P.Gunaraj (R-1) R2-Exparte J U D G M E N T The above appeal has been filed by the appellant / United India Insurance Company Limited against the award and decree dated 18.02.2010 made in M.C.O.P.No.189 of 2008, on the file of Motor Accidents Claims Tribunal, IInd Small Causes Court, Chennai. 2.The short facts of the case are as follows:- On 23.03.2007, at about 14.00 hours, when the petitioner was riding the Bullet Motorcycle bearing Registration No.TN-01-J-3575 near Muthumariamman Koil Street, from north to south, the motorcycle bearing Registration No.TN-10-F-0599, proceeding from west to east and turning towards north, ridden in a rash and negligent manner and at a high speed, dashed against the petitioner's motorcycle, due to https://hcservices.ecourts.gov.in/hcservices/ which the petitioner was thrown out and sustained grievous injuries. Hence, the petitioner has claimed a compensation of Rs.4,00,000/- from the respondents. The first respondent is the owner of the motorcycle bearing Registration No.TN-10-F-0599 and the second respondent is its insurer. 3.The second respondent, the United India Insurance Company Limited, in his counter has resisted the claim and denied the averments in the claim regarding manner of accident, nature of injuries sustained, age, income and occupation of the petitioner. It was also stated that the rider of the motorcycle bearing Registration No.TN-10-F-0599 did not have any valid driving licence on the date of accident. It was also stated that the claim was excessive. 4.On the averments of both parties, the Tribunal had framed four issues for consideration in this case, namely; “(i)Whether the accident had happened due to the rash and negligent riding of the rider of the motorcycle bearing Registration No.TN-10-F-0599? (ii)Whether the respondents are liable to pay the compensation? (iii)Whether the petitioner is entitled to get compensation? (iv)To what relief?” 5.On behalf of the petitioner, two witnesses were examined and Exs.P1 to P9 were marked. No witness was examined on the side of the respondents and no documents were marked. 6.The petitioner was examined as PW1. PW1 adduced evidence that was in consonance with the version of accident as stated in the claim. The averments of the petitioner was not rebutted by the respondents. Further, the Tribunal on scrutiny of Ex.P1, the First Information Report, Ex.P3, the charge sheet, held that the accident was caused due to the rash and negligent riding by the rider of the motorcycle bearing Registration No.TN-10-F-0599. 7.Based on Exs.P2, P4 and P6, the discharge summary, photo with CD and X-ray, the Tribunal came to understand that the petitioner had sustained amputation in right leg in the second and third toe and multiple injuries all over his body. As per Ex.P2, discharge summary, he had taken inpatient treatment at Government Stanley Hospital, Chennai from 23.03.2007 to 13.04.2007, wherein operation was conducted and the second and third toe of his right foot was amputated. He is unable to stand and walk for a long time. He is not able to ride a cycle. He is not able to continue, doing his normal https://hcservices.ecourts.gov.in/hcservices/ work. The doctor, who had assessed his disability was examined as PW2. The doctor after medical inspection had assessed his disability at 30% and in support thereof had marked Ex.P5, the disability certificate and Ex.P6-X-ray. 8.The Tribunal after considering the oral and documentary evidence awarded a compensation of Rs.2,90,200/- together with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment payable by the second respondent. The breakup of compensation is as follows:- Transport to Hospital .. Rs.3,000/- Nutrition .. Rs.5,000/- Damage to clothing and articles .. Rs.3,000/- Towards medical bills & expenses .. Rs.5,000/- Loss of income to family members as they had to attend to petitioner's needs .. Rs.5,000/- For pain and suffering .. Rs.10,000/- As the petitioner was a sales executive in M/s.Apramo Agencey, Chennai and was earning Rs.5,000/- per month, the Tribunal took his income as Rs.4,500/- per month and calculated annual loss of income as 30/100 x 4,500 x 12 = Rs.16,200/- (considering the petitioner has sustained 30% partial permanent disability). Adopting a multiplier of “16”, relevant to the age of petitioner's age (i.e., 19 years) at the time of accident, the total loss of income was computed at Rs.16,200/- x 16 = Rs.2,59,200/- and the same was awarded under the head of 'loss of earning capacity due to disability'. 9.Aggrieved with the award passed by the Tribunal, the second respondent, the United India Insurance Company Limited has filed the present appeal. 10.The learned counsel for the appellant has argued that the Tribunal had erred in awarding Rs.5,000/- as loss of income to the family members of claimant on account of attending to petitioner, without any proof. It was also pointed out that PW2, the doctor had erroneously assessed disability of two toes of one foot excluding great toe as 30% when according to Schedule I of Workmen's Compensation Act, 1923 specifies that for loss of two toes of one foot, excluding great toe through metatorso-phalangeal joint, the loss of earning power should be taken as only 5%. Though this could not be taken strictly, an assessment of 30% for loss of earning power is way off from the said guidelines. The learned counsel for the appellant further argued that the Tribunal erred in taking the annual income of petitioner as Rs.54,000/- without the claimant proving his income, employment and earnings. It was also argued that the award granted under other heads were excessive and had to be scaled down. The learned counsel further argued that the claimant's avocation as https://hcservices.ecourts.gov.in/hcservices/ sales executive was not affected due to the disability, but the Tribunal had adopted the multiplier method and awarded a compensation of Rs.2,59,200/- under the head of 'disability' which is not pertinent in this case. 11.The learned counsel for the claimant argued that the claimant's age was 19 years and two toes of right foot were amputated, which is permanent in nature. Further, the foot has been disfigured. As such, the marriage prospects had been reduced. The claimant is entitled to get an adequate compensation under the heads of disfigurement and discomfort. After amputation, the claimant's right foot has lost its original strength. Therefore, the claimant is unable to walk, run and stand. The Tribunal's award of compensation under other heads are also low. The learned counsel in order to prove the amputation of the claimant had produced a photograph. 12.In view of the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned award of the Tribunal, this Court is of the considered opinion that the claimant's avocation was not at all affected after two toes were amputated from the right leg of claimant. Therefore, the multiplier method adopted by the Tribunal is not pertinent in the instant case. Hence, this Court restructures the compensation as follows:- Rs.60,000/-, Rs.5,000/-, Rs.5,000/- Rs.3,000/-, Rs.5,000/-, Rs.5,000/- Rs.20,000/-, Rs.40,000/-, Rs.47,200 are granted towards loss of income due to disability, transport, nutrition, damage to clothes, medical expenses, attender charges, pain and suffering, loss of amenities of life and for permanent disfigurement. In total, this Court awards Rs.1,90,200/- as this is found to be fair and justifiable in the instant case. Therefore, this Court scales down the compensation from Rs.2,90,200/- to Rs.1,90,200/-. This amount will carry interest at the rate of 7.5% per annum from the date of filing the petition till date of payment of compensation. 13.On 28.02.2011, this Court imposed a condition on the appellant / Insurance Company to deposit the entire compensation amount with interest thereon to the credit of M.C.O.P.No.189 of 2008, on the file of Motor Accidents Claims Tribunal, IInd Small Causes Court, Chennai. Now, it is open to the claimant to withdraw the modified compensation amount, as fixed by this Court lying in the credit of M.C.O.P.No.189 of 2008, on the file of Motor Accidents Claims Tribunal, IInd Small Causes Court, Chennai, after filing a Memo along with this order. Likewise, the appellant / Insurance Company is at liberty to withdraw the excess compensation amount lying in the credit of M.C.O.P.No.189 of 2008, on the file of Motor Accidents Claims Tribunal, IInd Small Causes Court, Chennai, after observing necessary formalities of the Court below. https://hcservices.ecourts.gov.in/hcservices/ 14.Resultantly, the above Civil Miscellaneous Appeal is partly allowed. Consequently, the Award and Decree, passed by the Motor Accidents Claims Tribunal in M.C.O.P.No.189 of 2008, dated 18.02.2010 on the file of IInd Small Causes Court, Chennai is modified. There is no order as to costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar r n s To The II Judge, Court of Small Causes The Motor Accidents Claims Tribunal, Chennai. 1 cc to Mr.G.Udayasankar , Advocate, Sr.No.34743 1 cc to Mr.P.Gunaraj , Advocate, Sr.No.34748 C.M.A.No.516 of 2011 NG(CO) PMK.4.7.2011 https://hcservices.ecourts.gov.in/hcservices/