IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20.11.2008 CORAM:- THE HON'BLE MR. JUSTICE R. SUDHAKAR C.M.A.No. 73 of 2001 M/s. Tamilnadu State Government Transport Corporation, rep. by its Managing Director, Salem-7. ... Appellant/ Respondent Vs. Murali Vasudevan ... Respondent/ Petitioner Appeal filed under Section 173 of M.V. Act against the award and decree dated 4.8.2000 made in MCOP No. 937 of 1997 on the file of the Motor Accident Claims Tribunal, (III Addl. District Judge) Salem. For Appellant : Mr. P. Jagadeeswaran For Respondent : No Appearance JUDGMENT The Transport corporation has filed this appeal challenging the award dated 4.8.2000 made in MCOP No. 937 of 1997 on the file of the Motor Accident Claims Tribunal (III Additional District Judge), Salem. 2. It is a case of injury. The accident, in the case, happened on 18.12.1996. The injured claimant Murali Vasudevan was travelling in the appellant transport corporation bus which hit a tamarind tree and in that accident, the claimant in this case suffered fracture of the left leg and injuries to his face. He was taken to Salem Government Hospital and thereafter to Shanmugam hospital and then to SKS hospital, where he took treatment for six days. He was treated at M/s. Apollo Hospital also. Surgical procedure including skin grafting was done on the leg. As per Ex.A2, wound certificate, there are three injuries. The injury to the leg is stated to be grievous in nature. Contending that his income was Rs.10,000/- p.m. as a sales representative in a chit https://hcservices.ecourts.gov.in/hcservices/ company, he stated that he was given employment because he was an excellent sports player in cricket and therefore claimed a sum of Rs.15,00,000/- as compensation. 3. In support of the claim petition, the claimant was examined as P.W.1. and Dr. Elangovan was examined as P.W.2. Documents Exs. P1 to P11 were marked. One Saravanan, checking inspector, was examined as R.W.1. No document was filed on behalf of the appellant/ respondent before the Tribunal. 4. The Tribunal in this case, decided the compensation from para 8 onwards in answer to point No.2. Taking into consideration the three grievous injuries, the surgical procedure done in SKS Hospital and the M/s. Apollo hospital and also the expenses met for the treatment and based on records, the Tribunal granted a sum of Rs.2,40,000/- towards medical expenses. The Doctor, who was examined as P.W.2 , stated that there is shortening of leg. The injured claimant, it is stated, is an active sportsman engaged in Cricket. According to the Doctor, the claimant is not able to walk normally as before, and this has affected his lively hood and his sports activity has also stopped. The evidence of the Doctor is supported by Ex.A8, x-ray. The further evidence of the Doctor is that the Tibia bone after the surgical procedure has not fused properly. The Doctor also deposed about the medical procedure done on the claimant whereby the skin on the internal side of the leg has been removed and grafted on the wound area. The Doctor further stated that the movement of the leg is affected and the disability is 45% as per Ex.A10, the disability certificate. For the disability assessed at 45%, a sum of Rs.1,00,000/- was granted. Further, towards loss of income due to disability, the Tribunal based on the evidence, came to the conclusion that the injured claimant was earning Rs.3,500/- p.m. Taking note of the claimant's plea that his monthly income was Rs.7,000/- before the accident and the income fixed, the Tribunal granted a sum of Rs.1,00,000/- towards loss of future income. In all, the Tribunal granted the following amounts as compensation with interest at the rate of 12% p.a. Sl.No. Head Amount granted by the Tribunal 1 Pain and suffering Rs. 10,000/- 2 Medical expenses Rs. 2,40,000/- 3 Disability at 45% Rs. 1,00,000/- 4 Loss of income in the future Rs. 1,00,000/- Total Rs.4,50,000/- https://hcservices.ecourts.gov.in/hcservices/ 5. The finding of negligence on the part of the driver of the appellant transport corporation bus and the liability of the appellant to compensate the claimant is not in dispute and the same is confirmed. 6. The only contention made by the learned counsel for the appellant is on the quantum of compensation. This appeal was admitted on 9.4.2001 and interim stay was granted subject to the condition that the appellant deposits entire compensation awarded by the Tribunal and permission was granted to the claimant to withdraw 50% of the deposit and the balance was directed to be kept in bank deposit. 7. Notice through Court was sent to the address mentioned in the claim petition. However, the notice has been returned on two occasions viz., on 18.12.2002 and on 30.12.2002 with an endorsement " no such address". Private notice was also taken on 21.7.2001. It is stated therein that the respondent has left. As per the direction of the Court, the lower Court counsel was served on 27.9.2007. Yet, there is no appearance on behalf of the respondent. Therefore, this Court finds no good reason to endeavor any further in an attempt to serve notice to the respondent. The appeal therefore is taken up for disposal on merits. 8. As far as the medical expenses is concerned, it is supported by Exs.A3 and A4 and there is no dispute on the same. The Tribunal granted a sum Rs.1,00,000/- for the disability assessed at 45% and Rs.1,00,000/- towards loss of income in the future. Except the evidence of about disability insofar as the claimant is concerned, there is no material oral or documentary to support the plea that compensation should be granted in this case separately under disability and loss of earning capacity. In any event, such determination cannot be accepted in the light of the Full Bench decision in Cholan Roadways Corporation Ltd. -v.- Ahmed Thambi reported in 2006(4) C.T.C. 433, wherein the Full Bench set out the various heads under which compensation should be granted in a case of injury . The relevant portion reads as follows:- "In the non-pecuniary losses the Tribunal shall consider: (a) pain and suffering, (b) loss of amenity, (c) loss of expectation of life, hardship, mental stress etc. (d) loss of prospect of marriage and under the head pecuniary losses, the Tribunal shall consider loss of earning capacity and loss of future earnings as one component apart from medical and other expenses and loss of earning, if any from the date of accident till the date of trial. When loss of earning capacity is compensated as also the non-pecuniary losses under (a) to https://hcservices.ecourts.gov.in/hcservices/ (d), permanent disability need not be separately itemised." Therefore, the compensation on the above two heads may not be justified. The claimant however, was not granted any compensation for transport expenses,attender charges, extra nourishment etc. Further, meager amount has been granted for pain and suffering. 9. In this case, considering the grievous nature of injuries suffered and the fact that the injured claimant is an active sportsman and also taking into consideration the medical treatment at different hospitals i.e. two at Salem and one at Chennai, the claimant has to be suitably compensated for the loss of earning capacity due to the disability. He is entitled to reasonable compensation for loss of income during the period of treatment, transport expenses, extra nourishment and attender charges and also enhanced compensation for pain and suffering. The claimant has proved by cogent materials that his earning capacity has been affected. The Tribunal has merely on the basis of the disability assessed at 45%, granted a sum of Rs.1,00,000/-. As far as loss of income, no basis has been shown as to how this amount of Rs.1,00,000/- was arrived at. In such view of the matter, the sum of Rs.1,00,000/- granted for the disability and Rs.1,00,000/- for future loss of income are set aside since compensation has been granted on both the heads sans reason. 10. The 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 https://hcservices.ecourts.gov.in/hcservices/ '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." In this case, the evidence of the doctor supports the plea of compensation based on multiplier and the parameters of the Division Bench decision will be attracted to the facts of this case. The claimant will therefore be entitled to just and reasonable compensation for the disability assessed at 45% based on multiplier and for loss of income during the period of treatment and recovery, transport expenses, attender charges, extra nourishment and enhanced compensation for pain and suffering. The income of the injured claimant is fixed as Rs.3,500/- per month and it is not disputed. The multiplier that can be taken is 6 as it is not a case of total incapacity. For disability assessed at 45%, the loss of income due to disability will be Rs.1,13,400/- (Rs.3,500/- x 12 x 45/100 x 6 = Rs.1,13,400/-). The claimant will also be entitled to suitable compensation on other heads which have been omitted. Accordingly, the award of the tribunal stands modified as follows:- Sl.No. Head Amount granted by the Tribunal Amount granted by this Court 1 Pain and suffering Rs. 10,000/- Rs. 20,000/- 2 Medical expenses Rs. 2,40,000/- Rs.2,40,000/- 3 Disability at 45% and loss of earning capacity Rs. 1,00,000/- Rs. 1,13,400/- 4 Loss of income in future Rs. 1,00,000/- --- 5 Loss of income during the period of treatment (Rs.3,500/- x 6 = Rs.20,000/-) --- Rs. 20,000/- 6 Transport expenses --- Rs. 15,000/- https://hcservices.ecourts.gov.in/hcservices/ Sl.No. Head Amount granted by the Tribunal Amount granted by this Court 7 Attender charges --- Rs. 10,000/- 8 Extra nourishment --- Rs. 10,000/- Total Rs.4,50,000/- Rs.4,28,400/- 10. Since the accident happened in the year 1996 and the award was passed in the year 2000, the interest granted by the Tribunal at 12% p.a. is confirmed. 11. In the result, the civil miscellaneous appeal is partly allowed as follows:- (i) The award of the Tribunal is reduced to Rs.4,28,400/- from Rs.4,50,000/-. (ii) The interest will be at 12% p.a. (iii) It is stated that as per the interim order of this Court entire amount has been deposited and the claimant was permitted to withdraw 50% of the amount deposited. The claimant is entitled to withdraw the balance 50% of the award amount with interest and costs as per the order of this Court. (iv) The appellant is entitled to withdraw the excess amount in deposit after settling the claimant. (v) There shall be no orders as to costs. (vi) Consequently, connected civil miscellaneous petitions are closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ra https://hcservices.ecourts.gov.in/hcservices/ To The Motor Accident Claims Tribunal, (III Addl. District Judge) Salem. 1 c to Mr.P. Jagadeeswaran, Advocate, SR.65022 CMA No. 73 of 2001 JSV (CO) kk 23/1 https://hcservices.ecourts.gov.in/hcservices/