IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.04.2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN C.M.A.No.3417 of 2009 & M.P.Nos.1 of 2009 and 1 of 2010 The New India Assurance Co. Ltd., Amman Complex, Mettur Road, Erode District. ... Appellant/3rd Respondent Versus 1.A.Thangaraj ..Respondent/Petitioner 2.S.H.Mahaboob 3.New India Assurance Company Limited, No.38, Navyug Market, Ghazibad District, Uttar Pradesh. ...Respondents/Respondents 1&2 (RR2 & 3 exparte in Lower Court) Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the award and decree made in M.C.O.P.No.784 of 2008, dated 17.07.2009, on the file of the Motor Accidents Claims Tribunal, Fast Track Court No.3, Dharapuram. For Appellant : Mr.N.Vijayaraghavan For Respondents : Mr.M.A.P.Thangavel (R-1) (RR 3 & 4 - Exparte) J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant / New India Assurance Company Limited, against the award and decree passed in M.C.O.P.No.784 of 2008, dated 17.07.2009, on the file of the Motor Accidents Claims Tribunal, Fast Track Court No.3, Dharapuram. 2.The short facts of the case are as follows:- On 22.04.2008 at around 2.00 p.m., the petitioner had ridden a motorcycle bearing Registration No.GJ 15/MM 4516 along with one Rajendran, who is the claimant in connected O.P.No.782 of 2008 as pillion rider were proceeding on the National Highways Road, Sabvav Town, when at that time the lorry bearing Registration No.HR 38/H 8472 came at high speed and in a reckless manner from the opposite direction and hit against the motorcyclist, as a result both had https://hcservices.ecourts.gov.in/hcservices/ sustained grievous injuries. Hence, the claimant had filed a claim petition in M.C.O.P.No.784 of 2008 against the respondents for compensation a sum of Rs.5,00,000/- with interest. 3.The third respondent / New India Assurance Co.Ltd., had filed a counter statement and resisted the claim petition. The respondent denied the said accident that it was committed by the driver of the lorry. The respondent denied the age, income, occupation, nature of injuries and mode of treatment etc., In the said accident, the rider of the motorcycle and its insurer are necessary parties in this case, but they have not been impleaded as necessary parties besides the claim amount is excessive. 4.On the plea of both parties the Tribunal had framed three issues for consideration namely:- "(i)Who had committed the said accident in a negligent manner? (ii)Whether the claimant is entitled to receive compensation from the respondents? (iii)If so, what is the quantum of compensation the claimant is entitled to receive from the respondents?" 5.The learned Tribunal tried the cases and passed a common judgment and separate decrees on the M.C.O.Ps'. On the side of the claimant three witnesses were examined and the below mentioned documents were marked:- First Information Report, Wound Certificate, Observation Mahazar, Discharge Summary, Hospital Certificate, medical bills, scan reports, X-ray, Driving Licence, Advance amount receipt, Photographs and etc., On the side of the respondents, no witness was examined and no documents were marked. 6.PW2 had adduced evidence stating that he had undergone treatment at Haria L.G.Rotary Hospital, thereafter he had undergone treatment at Senthil Hospital, Coimbatore. He had marked Exs.28 to 30, Exs.22, 23 and 24 all are relating to the nature of injuries, mode of treatment, medical expenses etc., PW2 further adduced evidence stating that he had sustained injuries on his right hip, thigh bone fracture, right hand arm fracture, right side cheek fracture and eye injuries. PW3 had adduced evidence stating that he had examined the claimant had assessed the disability as 36%, he further stated that the claimant had undergone surgical operation on his thigh and a steel late with screws were fixed in the operated area, his further evidence corroborated with the evidence of PW2. 7.On considering the evidence of the witnesses and documentary evidence, the Tribunal had awarded a sum of Rs.3,10,000/- with interest at the rate of 7.5% per annum. https://hcservices.ecourts.gov.in/hcservices/ 8.Aggrieved by the said award, the appellant has filed the above appeal to scale down the compensation. 9.The learned counsel for the appellant argued that the Tribunal had awarded a sum of RS.1,20,000/- under the head of 'loss of income' due to disability after adoption of multiplier method, which is not applicable in the instant case, since the claimant had sustained simple injuries and his avocation was not at all affected, besides the Tribunal awarded a sum of Rs.34,000/- under the head of 'pain and suffering' which is on the higher side. 10.Learned counsel for the claimant argued that the claimant's age is about 24 years and he is doing Inter-state textile business and earning a sum of Rs.6,000/- per month. After the operation on his thigh he is unable to move from place to place in order to do his business and he feels discomfort. The claimant had undergone treatment at two different hospitals. The Tribunal had not considered compensation under the heads of attender charges and future medical expenses for a re-operation and removal of steel plate and screws from the claimant's thigh. 11.On considering the facts and circumstances of the case, 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 multiplier method is inappropriate since the claimant's avocation was not at all affected besides a sum of Rs.34,000/- under the head of 'pain and suffering' is on the higher side, therefore, this Court modifies the compensation a follows:- Rs.1,25,000/-, Rs.15,000/-, Rs.72,000/-, Rs.5,000/-, Rs.5,000/-, Rs.5,000/-, Rs.10,000/-, Rs.10,000/- and Rs.8,000/- granted towards medical expenses, for pain and suffering, for disability, for transport, for nutrition, against attender charges, towards loss of earning during the medical treatment period, loss of amenities and discomfort. In total, this Court awards a sum of Rs.2,55,000/- with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation, which is fair and equitable. Therefore, this Court scales down the compensation from Rs.3,10,000/- to Rs.2,55,000/-. 12.Therefore, this Court directs the appellant/Insurance Company to deposit the modified compensation amount with accrued interest as observed above to the credit of M.C.O.P.No.784 of 2008 on the file of the Motor Accidents Claims Tribunal, Fast Track Court No.3, Dharapuram, subject to deductions if any made already. After such a deposit being made, it is open to the claimant to withdraw the modified amount as fixed by this Court lying in the credit of M.C.O.P.No.784 of 2008 on the file of the Motor Accidents Claims Tribunal, Fast Track Court No.3, Dharapuram, after filing a Memo https://hcservices.ecourts.gov.in/hcservices/ along with this order. Likewise the appellant / New India Assurance Company Limited is at liberty to withdraw the excess compensation amount with accrued interest thereon after observing necessary formalities of the learned Motor Accidents Claims Tribunal, if paid the entire compensation already. 13.In the result, the Civil Miscellaneous Appeal is partly allowed. Consequently, the Award and Decree, passed in M.C.O.P.No.784 of 2008 on the file of the Motor Accidents Claims Tribunal, Fast Track court No.3, Dharapuarm, dated 17.07.2009 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 1.The Fast Track Court No.3, Motor Accident Claims Tribunal, Dharapuram. 2.The Section Officer, VR Section, High Court, Madras. 1 cc To Mr.N.Vijaraghavan, Advocate, SR.29432. 1 cc To Mr.Ma.P.Thangavel, Advocate, SR.29345. C.M.A.No.3417 of 2009 VD(CO) RVL 04.08.2011 https://hcservices.ecourts.gov.in/hcservices/