IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:20.11. 2008 CORAM:- Hon'ble Mr. Justice R. SUDHAKAR C.M.A.No.3536 of 2008 and M.P.No.1 of 2008 M/S.New India Assurance Co.Ltd., Thiruchengode .. Appellant/ 2nd respondent Vs. 1.R.Tamilarasan 2.Rajkumar .. Respondents/ Petitioner and ISt Respondent Appeal filed under Section 173 of the M.V.Act against the award and decree dated 22.04.2008 in MCOP No.334 of 2005 on the file of the Motor Accidents Claims Tribunal,(Subordinate Court), Sankari. For Appellant : Mr. J.chandran For respondents : Mr.T.Hari Ramachandran (R1/ Caveator) (2nd Respondent set exparte in MCOP) JUDGMENT The Insurance Company has filed this appeal challenging the award dated 22.04.2008 in MCOP No.334 of 2005 on the file of the Motor Accidents Claims Tribunal,(Subordinate Judge), Sankari. 2. It is a case of injury. The accident, in this case, happened on 19.04.2005. The injured – Claimant Tamilarasan, aged about 23 years, and working as a Sales Manager was riding T.V.S.Suzuki Motor cycle. The said Motor Cycle was hit by a Mahindra Van bearing Registration No.TN-30-Y-234, insured with the appellant. Due to rash and negligent driving on the part of the driver, the injured claimant suffered grievous injuries all over the body,particularly, on the right hip and right thigh. He claimed a sum of Rs.5,00,000/- as compensatin. https://hcservices.ecourts.gov.in/hcservices/ 3. In support of the claim, the Claimant was examined as P.W.1 and one Parameswaran was examined as P.W.2 and Dr.Muthusamy was examined as P.W.3. Documents Exs.P.1 to P.9 were marked. Ex.P.1 is the copy of the First Information Report. Ex.P.2 is the copy of Wound Certificate. Ex.P.3 is the Medical Certificate. Ex.P.4 is the medical bills. Ex.P.5 is the X-ray. Ex.P.6 is the driving licence of the petitioner/Claimant.Ex.P.7 is the salary Certificate of the petitioner/Claimant. Ex.P.8 Disability Certificate. Ex.P.9 is the X- ray. No oral or documentary evidence was let in on the side of the appellant/respondent before the Tribunal. 4. As far as the medical treatment is concerned, The injured Claimant was treated in the Government hospital at Edapadi. Ex.P.2 is the Wound Certificate and Ex.P.3 is the medical Certificate and Ex.P.4 is the Medical Bills. The income of the injured claimant is stated to be Rs.5,000/- under Ex.P.7 - the Salary Certificate of the claimant. Ex.P.8 is the disability Certificate. Doctor assessed the disability at 35%. The Tribunal,however, fixed the income of the Claimant at Rs.4,000/- per month, considering the nature of employment. Thereafter, the Tribunal adopted 16 multiplier and determined the pecuniary loss in respect of the 35% disability as follows: Rs.4,000 X 12 X 16 = Rs. 7,68,000/- X 35/100 = Rs.2,68,8,00/- The Tribunal also granted compensation under conventional heads. In all, the Tribunal granted the following amounts as compensation with interest at the rate of 7.5%. Sl.No. Head Amount granted by the Tribunal 1 Pecuniary loss disability Rs. 2,68,800/- 2 Loss of income during treatment Rs. 8,000/- 3 Medical expenses Rs . 27,918/- 3 Future medical expenses Rs. 10,000/- 4 Pain & Suffering, Rs. 5,000/- Extra nourishment Rs 3,000/- 6. Transport expenses Rs 2,000/- Total Rs. 3,24,718/- 5. Learned counsel for the appellant pleaded that the Tribunal adopted multiplier of 16 in the case of injury, which happened in the year 2005 comparing it with that of a case of fatal accident. But, in this case, after 2005, there was no medical records to show that the disability is continuing for the rest of his life. Therefore, the compensation based on multiplier is challenged. https://hcservices.ecourts.gov.in/hcservices/ 6. Learned counsel for appellant fairly submitted that the deformity in the right hip and other injuries will affect the earning capacity of the injured claimant, a salesman, to earn as before. But, it is contended that the multiplier as in the case of death need not be adopted in this case. He relied upon a decision of this Court in the case Insurance Co. Ltd., - vs. - Veluchamy and another (cited supra) wherein the Division Bench sets out the parameters as to when the multiplier method can be adopted in the case of injury. In Paragraph 11 of the decision reads thus:- "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." 7. Learned counsel for the claimant, on the other hand, submitted that the total compensation awarded for a 24 years old injured Salesman by the Tribunal is a meagre amount and no amount has been granted for attendant charges. Meagre amount has been granted for extra nourishment and for pain and suffering. https://hcservices.ecourts.gov.in/hcservices/ 8. In view of the Division Bench decision of this Court in Veluchamy's case (cited supra) the higher multiplier of 16 as in the case of fatal accidents, cannot be adopted in the case of injury as is done in this case. In the present case, there is deformity in the right hip due to the injury and the claimant suffered lacerated injury in the right thigh and abrasions in the right knee and multiple injuries all over the body. The disability has been assessed at 40% by the Doctor and it was modified to 35% by the Tribunal. The earning capacity of the claimant is not lost completely. In this case, there is material to hold that consequent to the disability assessed at 35%, there will be loss of earning capacity. The claimant qualifies for compensation by adopting multiplier method. However, the multiplier as in the case of death cannot be applied to the present case. The Tribunal erred in adopting 16 multiplier, in view of the age of the injured claimant. The possibility of the injured claimant earning by other means and since a lump sum payment is to be paid, lesser multiplier of 10 can be taken instead of 16 multiplier adopted by the Tribunal. Compensation for loss of income consequent to the disability of 35% will be Rs.1,68,000/- (i.e Rs.4,000 X 12 X 10 X 35/100 = Rs. 1,68,000/-)_ For pain and suffering undergone by the claimant, the Tribunal granted meagre amount of Rs.5,000/- Considering the young age of the injured claimant and the nature of injury and the period of treatment, he will be entitled to Rs.20,000/- towards pain and suffering. As far as extra nourishment is concerned, he has suffered deformity in the right hip at an young age and he needs sufficient nutrition to recover to a normal life. Therefore, a sum of Rs.10,000/-is granted under this head. As far as transport expenses is concerned, the Tribunal granted a paltry sum of Rs.2,000/=- and that has to be enhanced. As against Rs.2,000/- awarded by the Tribunal, a sum of Rs.7,500/- is granted for transport expenses as the treatment will entail expenditure towards transport. A sum of Rs.27,918/- granted towards medical expenses by the Tribunal is not disputed and the same is confirmed. Loss of income assessed by the Tribunal for two months is enhanced to loss of income for three months. A sum of Rs.10,000/- granted towards future medical expenses is not disputed and the same is confirmed. Accordingly, the compensation granted by the Tribunal is modified as follows: Sl.No Head Amount granted by the Tribunal Amount granted by this Court 1 Pecuniary loss Rs. 2,68,000/- Rs. 1,68,800/- 2 Loss of income during treatment Rs. 8,000/- Rs. 12,000/- 3 Medical expenses Rs. 27,918/- Rs . 27,918/- https://hcservices.ecourts.gov.in/hcservices/ Sl.No Head Amount granted by the Tribunal Amount granted by this Court 3 Future medical expenses Rs. 10,000/- Rs. 10,000/- 4 Pain & Suffering, Rs. 5,000/- Rs. 20,000/- Extra nourishment Rs. 3,000/- Rs 10,000/- 6. Transport expenses Rs. 2,000/- Rs 7,500/- Total Rs. 3,24,718/- Rs. 2,55,418/- Since the accident happened in the year 2005 and the award was passed in the year 2008, the rate of interest granted by the Tribunal at 7.5% stands confirmed. 9. In the result, the Civil Miscellaneous Appeal is partly allowed as follows: i) The award of the Tribunal is reduced to 2,55,418/- from Rs.3,24,718/-. ii) The interest granted by Tribunal at 7.5% is confirmed. iii) The learned appearing for the appellant seeks eight weeks' time to deposit the amount and the same is allowed. On such deposit, the claimant will be entitled to withdraw the same. iv)Excess amount in deposit, if any, shall be withdrawn by the appellant with accrued interest. v) There shall be no order as to costs. vi) Connected miscellaneous petition is closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. PAL https://hcservices.ecourts.gov.in/hcservices/ To The Motor Accidents Claims Tribunal/ SubCourt, Sankari 1 cc to Mr.J. Chandran, Advocate, Sr. 64837 1 cc to Mr.T. Hari Ramachandran, Advocate, Sr. 64819 CMA No. 3536 of 2008 DM (CO) kk 28/1 https://hcservices.ecourts.gov.in/hcservices/