IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.11.2008 CORAM:- THE HON'BLE MR. JUSTICE R. SUDHAKAR C.M.A.No. 3555 of 2008 The Oriental Insurance Co. Ltd., Subha Govindan Buildings, 2nd floor, Imperial Road, Cuddalore. ... Appellant/2nd respondent Vs. 1.Kannan 2.Selvamani .. Respondents/petitioner/ first respondent Appeal filed under Section 173 of the Motor Vehicles Act against the award and decree dated 23.10.2007 in MCOP No. 110 of 2007 on the file of the Motor Accident Claims Tribunal (Additional District Court – FTC I) Chidambaram. For Appellant : Mr. S. Arunkumar For Respondents : Mr. S.Kumaradevan JUDGMENT The Insurance Company has filed this appeal challenging the award dated dated 23.10.2007 in MCOP No. 110 of 2007 on the file of the Motor Accident Claims Tribunal (Additional District Court – FTC I) Chidambaram. 2. It is a case of injury. The accident in this case happened on 26.5.2005. The injured claimant Kannan, aged 50 years, working in a brick kiln on daily wages, was loading the bricks when the tractor insured with the appellant insurance company driven by its driver in a rash and negligent manner hit the claimant while reversing the vehicle. Consequent to the accident, the injured claimant suffered serious injuries to his right hand and he was taken to RMMCH hospital, Annamalai Nagar, Chidambaram and treated from 25.5.2005 to 8.6.2005 as inpatient. Medical procedures were done to the injured right hand. Three fingers viz., 3,4 and 5 were amputated. For the injuries suffered, the claimant filed a petition claiming a sum of Rs.6,00,000/- as compensation stating that his income was Rs.4,000/- p.m. i.e. Rs.200/- to Rs.250/- per day. https://hcservices.ecourts.gov.in/hcservices/ 3. In support of the claim petition, the injured claimant was examined as P.W.1. Dr. Balamurugan was examined as P.W.2.Documents Exs. A1 to A14 were marked and x-ray was marked as M.O.1. The documents relating to hospitalisation and treatment are Exs. A3, 6,7,8,9 and 10. No oral and documentary evidence was let in on behalf of the appellant/ respondent before the Tribunal. The disability was assessed at 45%. 4. The Tribunal taking into consideration the nature of employment of the injured and the loss of three fingers which will affect his capacity to earn as brick kiln worker, by adopting multiplier method granted a sum of Rs.2,37,600/- (Rs.4,000/- x 12 x 11=Rs.5,28,000/- x 45/100= Rs.2,37,600/-) towards loss of earning power. In all, the Tribunal granted the following amount as compensation with interest at the rate of 7.5% p.a. Sl.No. Head Amount granted by the Tribunal 1 Loss of earning power Rs.2,37,600/- 2 Grievous injury Rs. 5,000/- 3 Loss of income Rs. 48,000/- Total Rs.2,90,600/- 5. In paragraph 8 of the award, a sum of Rs.439/- + Rs.25/- has been mentioned as the amount payable for medical expenses. However, the said amount has not been added in the total compensation. 6. The finding of negligence on the part of the driver of the tractor, who caused the accident and the injury and the liability of the insurance company to compensate the claimant is not in dispute and the same is confirmed. 7. The only contention raised by the learned counsel for the appellant is on the quantum of compensation. According to the appellant, for the loss of three fingers, the disability assessed at 45% under Ex.A14 is on the higher side. Even according to the schedule to the Workmen's Compensation Act, the disability will be only 30%. He further stated that the multiplier of 11 is also on the higher side and has to be suitably reduced. He also pleaded for reduction in the quantum of compensation granted for loss of income during the period of treatment stating that the said amount is excessive. 8. Learned counsel for the first respondent/ claimant on the other hand submitted that the disability is permanent and the claimant's earning capacity is affected very much due to amputation. Learned counsel for the respondent/claimant relied upon the decision of the Division Bench of this Court in United India Insurance Co. Ltd., - vs. - Veluchamy and another reported in 2005 ACJ 1483. https://hcservices.ecourts.gov.in/hcservices/ 9. A Division Bench of this court in United India Insurance Co. Ltd., - vs. - Veluchamy and another reported in 2005 ACJ 1483, set out the principles as to when multiplier method should be adopted in a case of injury in para 11 which reads as follows:- "11. The following principles emerge from the above discussion: (a) In all cases of injury or permanent disablement 'multiplier method' cannot be mechanically applied to ascertain the future loss of income or earning power. (b) It depends upon various factors such as nature and extent of disablement, avocation of the injured and whether it would affect his employment or earning power, etc. and if so, to what extent? (c) (1) If there is categorical evidence that because of injury and consequential disability, the injured lost his employment or avocation completely and has to be idle for the rest of his life, in that event loss of income or earnings may be ascertained by applying the 'multiplier method' as provided under the Second Schedule to Motor Vehicles Act, 1988. (2) Even so there is no need to adopt the same period as that of fatal cases as provided under the Schedule. If there is no amputation and if there is evidence to show that there is likelihood of reduction or improvement in future years, lesser period may be adopted for ascertainment of loss of income. (d) Mainly it depends upon the avocation or profession or nature of employment being attended by the injured at the time of accident." He therefore justified the multiplier adopted in this case. He also pleaded that no amount was granted for pain and suffering, extra nourishment, transport and attender charges. He therefore, justified the award. 10. The nature of injuries suffered by the claimant and the treatment given resulting in amputation clearly goes to show that after the treatment claimant has recovered from injuries. The earning capacity, however, will be affected as the claimant has to rely on https://hcservices.ecourts.gov.in/hcservices/ physical strength and his hands and fingers for making bricks. However, it will not preclude the claimant from earning through other sources on a lesser scale. Therefore, the multiplier as in the case of death need not be adopted in the case of injury of this kind. Following the decision in Veluchamy's case cited above, the multiplier has to be reduced and the percentage of disability in the present case has to be suitably modified. Accordingly, the loss of earning capacity due to disability is determined in a sum of Rs. 1,44,000/- (Rs.4,000/- x 12 x 30/100 x 10 -= Rs.1,44,000/-). As rightly pointed out by the learned counsel for the first respondent/ claimant, no amount was granted for pain and suffering, transport expenses, extra nourishment and attender charges. The sum of Rs.48,000/- granted for loss of income during the period treatment is excessive as the Tribunal has granted compensation for nearly one year and there is no medical evidence to support the same. The award therefore stands modified as follows:- Sl.No. Head Amount granted by the Tribunal Amount granted by this Court 1 Loss of earning power Rs.2,37,600/- Rs.1,44,000/- 2 Grievous injury Rs. 5,000/- --- 3 Loss of income for four months Rs. 48,000/- Rs. 16,000/- 4 Pain and suffering ---- Rs. 20,000/- 5 Extra nourishment --- Rs. 7,500/- 6 Transport expenses --- Rs. 5,000/- 7 Attender charges --- Rs. 5,000/- Total Rs.2,90,600/- Rs.1,97,500/- rounded off to Rs.2,00,000/- 11. Since the accident happened in the year 2005 and the award was passed in the year 2007, the interest granted by the tribunal at 7.5% stands confirmed. 12. In the result, the civil miscellaneous appeal is partly allowed as follows:- (i) The award of the Tribunal is reduced to Rs.2,00,000/- from Rs.2,90,600/-. (ii) Learned counsel for the appellant seeks eight weeks time to deposit the amount and the same is allowed. On such deposit, the claimant is entitled to withdraw the same as per the order of this Court. https://hcservices.ecourts.gov.in/hcservices/ (iii) There shall be no order as to costs. (iv) Consequently, M.P.No.1 of 2008 is closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ra To The Motor Accident Claims Tribunal, (Additional District Judge – FTC I) Chidambaram. + 1 cc to Mr.S.Kumaradevan,Advocate,SR.63964 + 1 cc to Mr.S.Arunkumar,Advocate, SR.63965 CMA No. 3555 of 2008 CK(CO) EM/12.1.09 https://hcservices.ecourts.gov.in/hcservices/