IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.08.2010 C O R A M THE HONOURABLE MR. JUSTICE B.RAJENDRAN C.M.A. No. 1619 of 2007 and M.P. No. 2 of 2007 The Branch Manager New India Assurance Co Ltd T.S. 1817, Veela South Street Nagapattinam Town and Taluk .. Appellant/2nd Respondent Versus 1. Meera .. Respondent/Petitioner 2. The Correspondent Venkateswara Nursery and Primary School, Main Road, Kacchanam Tiruvarur .. Respondent/1st Respondent Appeal under Section 173 of the Motor Vehicles Act, 1988 against the Judgment and Decree dated 29.08.2006 made in MACTOP No. 77 of 2005 on the file of the Motor Accidents Claims Tribunal (Chief Judicial Magistrate), Nagapattinam. For Appellant : Mr. S. Ramalingam For Respondents : No appearance for R1 Mr. G. Shivakumar for R2 JUDGMENT The Insurance company has come forward with this appeal against the grant of a sum of Rs.1,28,000/- awarded by the court below in favour of the claimant/first respondent herein as against a sum of Rs.6,00,000/- claimed in the claim petition. 2. The facts of the case was that on 14.03.2005 at 05.20 pm when the claimant/first respondent was going in the left side of the road at Thirukaravasal Village, near Thirumanamandapam, the driver of the van bearing Registration No. TN-33-Z-5657, belonging to the second respondent herein, drove it in a rash and negligent manner and dashed against her. In the impact, the claimant/first respondent sustained injuries on her left temporarl region, right side fore head and multiple injuries all over her body. Therefore, for the injuries sustained in the road accident, the claimant claimed a compensation of Rs.6,00,000/-. 3. Before the court below, the claimant examined herself as PW1, one Maragadham as PW2, Dr. Madhivanan as PW3 and two other witnesses as PWs 4 and 5, besides Exs. P1 to P14 were marked. On behalf of the respondents in the claim petition, one Prabhakaran was https://hcservices.ecourts.gov.in/hcservices/ examined as RW1 and Ex.R1 was marked. The Court below, after consideration of the oral and documentary evidence, awarded a sum of Rs.1,28,000/- as compensation to the claimant/first respondent herein which is questioned in this appeal by the insurance company. 4. Though notice was served on the claimant/first respondent herein, there is no representation on behalf of the first respondent. I heard the learned counsel for the appellant as well as the second respondent. 5. The learned counsel for the appellant submitted that the Insurance Company is not disputing the date, time, manner in which the accident occurred and the liability fastened by the court below, but only the quantum of compensation. The main contention of the counsel for the appellant is that the claimant said to have sustained injuries in skull and head, but there is no documentary evidence produced to that effect. After 1 ½ years from the date of accident, PW3, the Doctor has issued the disability certificate assessing the disability sustained by the claimant at 30%. There is also no evidence available on record as to what was the difficulty or discomfort being faced by the claimant after the accident. Above all, the court below applied multiplier theorey in a case of injury and awarded exorbitant amount as compensation which is unsustainable in law. 6. The only point for consideration in this appeal is whether the award of compensation granted by the court below is excessive or not. 7. In so far as the injuries sustained by the claimant is concerned, in the claim petition, in column No.11, it was stated that she sustained (i) Grievous injury on left temporarl region about 6 cm X 5 cm (ii) grievous injury on right side fore head 3 cm X 2cm (iii) temporal parietal eraniolmy and evacuation of EDH Dene (iv) CT scan – Brain left temporal extra femer haemotoms with fracture left temporal bone (v) multiple injuries all over the body and (vi) body pain, chest pain, headache. Ex.P7 is the discharge summary issued by the Government Medical College, Thanjavur which would indicate that there is no fracture in the skull or any injury to the brain. It was also stated therein that there was no injury sustained to the nervous system. Even the CT scan report, Ex.P3 do not say anything about the skull fracture or damage to brain or nervous system. Even Exs. P13 and P14, Scan and Scan report would indicate that there is one small clot in the brain and there is no other fracture, but this was stated as grievous injury in the claim petition. 8. It is seen from the records that Ex.P2, wound certificate was issued by a private hospital, but Ex.P7, discharge summary was issued by the Government Medical College Hospital, Thanjavur. PW3, Doctor, in his evidence has stated that he never examined or treated the claimant, but after 1 ½ years from the accident, when he was examined, he would state that there was a fracture in the skull, which is not borne out of any records and it cannot be accepted. PW1, 2 or PW3 also in their evidence have not stated as to what exactly the difficulty which is being faced by the claimant by reason of the accident. The court below rightly taken into consideration the https://hcservices.ecourts.gov.in/hcservices/ disability of the claimant only at 20% and this Court also accepts the same. However, while taking into consideration the disability at 20%, the court below adopted multiplier method, which is impermissible, especially in a case of injury. By applying multiplier method, besides awarding a sum of Rs.78,000/- towards loss of income, the court below has granted Rs.20,000/- towards partial loss of income, which is also unsustainable in law as per the decision of the Full Bench of this Court reported in (Cholan Roadways Corporation Limited vs. Ahmed Thambi) (2006) 4 CTC 433. Therefore, if 20% of disability taken by the court below is accepted, as per the decision of the Honourable Supreme Court, in a case of injury, for the purpose of arriving at the compensation towards disability, a sum of Rs.1,000/- or Rs.2,000/- can be granted per percentage of disability. Even if a maximum sum of Rs.2,000/- is granted taking into account the disability of the claimant at 20%, the claimant is entitled to a sum of Rs.40,000/- towards disability, which will be fair and reasonable. 9. The court below has granted a sum of Rs.18,000/- towards pain and suffering and Rs.8,000/- towards medical expenses based on medical bills, Ex.P6 series, which are fair and reasonable. However, a sum of Rs.4,000/- alone was granted towards extra nourishment and transportation charges, which in my opinion is very low, therefore, the claimant is entitled to a sum of Rs.5,000/- towards extra nourishment and another Rs.5,000/- for transportation charges. 10. In the result, the appeal filed by the insurance company is partly allowed reducing the compensation awarded by the Court below from Rs.1,28,000/- to Rs.76,000/-. No costs. Consequently, connected MP No. 2 of 2007 is closed. 11. It is now brought to the notice of this Court that the insurance company has deposited the entire compensation amount. In view of the reduction of the compensation amount, the insurance company is permitted to withdraw the excess amount over and above Rs.76,000/- with accrued interest at the rate of 7.5% per annum. The claimant/first respondent is also permitted to withdraw the amount, as determined by this Court in this appeal. Sd/ Assistant Registrar /True Copy/ Sub Assistant Registrar rsh https://hcservices.ecourts.gov.in/hcservices/ To The Chief Judicial Magistrate Motor Accidents Claims Tribunal Nagapattinam + 1 CC to MR.S.Ramalingam, Advocate SR 68058 CMA No. 1619 of 2007 VS(CO) PKS 11/12/2010 https://hcservices.ecourts.gov.in/hcservices/