IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.9.2008 CORAM:- Hon'ble Mr. Justice R. SUDHAKAR C.M.A.No.787 of 2008 and M.P. No. 1 of 2008 The Branch Manager, The Oriental Insurance Co. Ltd., 3 L, Siddhaveerappa Chetty Street, Dharmapuri Town and Taluk. .. Appellant/ 2nd respondent Vs. 1. Mathaiyan @ Madhu 2. Tmt. Maheswari .. Respondents/Petitioner and 1st Respondent Appeal filed under Section 173 of M.V. Act against the award and decree dated 17.3.2006 in MACTOP No.451 of 2003 on the file of the Motor Accidents Claims Tribunal (Subordinate Judge), Krishnagiri. For Appellant : Mr. M. Krishnamoorthy For Respondents : Mr. P. Arivudainambi JUDGMENT The Oriental Insurance Company has filed this appeal challenging the award dated 17.3.2006 in MACTOP No.451 of 2003 on the file of the Motor Accidents Claims Tribunal (Subordinate Judge), Krishnagiri. 2. The finding of negligence on the part of the driver of the offending vehicle and the liability fixed on the insurance company to compensate the claimant is not in dispute and the same is confirmed. The primary contention of the learned counsel for the appellant is on the quantum of compensation. 3. It is a case of injury. The accident in this case happened on 17.7.2002. The injured claimant Mathaiyan @ Madhu, a load man, aged 33 years, was travelling in the offending goods https://hcservices.ecourts.gov.in/hcservices/ vehicle insured with the second respondent. The said vehicle collided with another vehicle which was coming from the opposite direction. In that accident, the said Mathaiyan suffered fracture of left arm and fracture of six ribs. He was given first aid at the Government Hospital, Hosur and thereafter at Ganga Hospital, Coimbatore from 18.7.2002 to 30.7.2002. He filed the claim petition claiming a sum of Rs.5,00,000/- as compensation for the injuries suffered by him. 4. In support of the claim petition, the injured claimant was examined as P.W.1. Dr. Ashokkumar was examined as P.W.2. Documents Exs.A1 to A7 were marked. Ex.A1 is the photocopy of the F.I.R. Ex.A2 is the insurance policy receipt. Ex.A3 is the wound certificate. Ex.A4 is the oral statement of one Thangavelu. Ex.A5 series are the medical bills. Ex.A6 is the disability certificate assessing the disability at 45%. Ex.A7 is the x-ray. No oral and documentary evidence was let in on behalf of the appellant/ respondent before the Tribunal. 5. As regards the quantum of compensation, the same was decided by the Tribunal in paragraph 8 of the award in answer to point No.2. In this case, the Tribunal narrating the plea of the claimant with regard to the injury, occupation and income, without any discussion and without any reason to support the compensation, determined the same and granted the following amounts with interest at the rate of 9% p.a. Sl.No. Head Amount granted by the Tribunal 1 For injuries Rs.1,00,000/- 2 Pain and suffering Rs.1,00,000/- 3 Disability Rs.1,00,000/- 4 Loss of earning power Rs. 50,000/- 5 Loss of income Rs. 10,000/- 6 Transport charges Rs. 9,307/- 7 Extra nourishment Rs. 10,000/- 8 Medical expenses Rs. 50,000/- Total Rs.4,29,307/- 6. The contention of the learned counsel for the appellant is that the tribunal awarded exorbitant amount as compensation without any reason. There is no discussion on the nature of injuries, income, occupation and conclusion as to why such an huge amount was granted as compensation. He pleaded for reduction in the quantum of compensation. The learned counsel stated that the award can be modified so as to grant just compensation on the appropriate heads. https://hcservices.ecourts.gov.in/hcservices/ 7. Heard the learned counsel for the claimant, who fairly stated that the award is bereft of reason and has not justified the grant of the amounts. He however pleaded that the injured claimant is a load man and due to the injuries, his earning capacity has been affected to some extent. The disability has been assessed at 45% and therefore, he should be compensated reasonably if not the amount as determined by the Tribunal. 8. Due to the accident, the claimant suffered fracture of left arm and fracture of six ribs and the disability has been assessed at 45% under Ex.A6. He was treated as inpatient in Ganga Hospital, Coimbatore from 18.7.2002 to 30.7.2002 for a period of 12 days. The copy of the discharge summary was however not marked. The wound certificate alone has been marked. There is no proof regarding further treatment. In such circumstances, there is no material to come to the conclusion that due to the injuries, the claimant has lost his earning capacity totally. 9. In this case, there is no evidence let in to show that the injured claimant has suffered irrecoverable damage, which will affect his earning capacity for the rest of his life. The Tribunal is therefore not justified in granting compensation on the three heads viz., injuries, disability and loss of earning power. The entire award is contrary to the decision of the Full Bench decision in Cholan Roadways Corporation Ltd. -v.- Ahmed Thambi reported in 2006(4) C.T.C. 433. 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 (d), permanent disability need not be separately itemised." 10. The injured claimant would have lost his income during the period of treatment and convalescence which can be taken as 5 months. Since the injured claimant is a load man, his income can be taken as Rs.3,500/- p.m. in view of the Division Bench Judgment in the case of B.Anandhi – vs. - Latha reported in 2002 ACJ 233, in which a Division Bench of this Court observed that a coolie would earn Rs.100/- per day. Therefore, the loss of income during the period of treatment would be Rs.17,500/-. The claimant will be https://hcservices.ecourts.gov.in/hcservices/ entitled to compensation for pain and suffering undergone during treatment and recovery. 11. Considering all the above aspects, the award of the Tribunal stands modified as follows:- Sl.No. Head Amount granted by the Tribunal Amount granted by this Court 1 For injuries Rs.1,00,000/- -- 2 Pain and suffering Rs.1,00,000/- Rs. 50,000/- 3 Disability assessed at 45% Rs.1,00,000/- Rs. 50,000/- 4 Loss of earning power Rs. 50,000/- -- - 5 Loss of income during the period of treatment and convalescence Rs. 10,000/- Rs. 17,500/- 6 Transport charges Rs. 9,307/- Rs. 9,307/- 7 Extra nourishment Rs. 10,000/- Rs. 10,000/- 8 Medical expenses Rs. 50,000/- Rs. 50,000/- 9 Attender charges -- Rs. 7,500/- Total Rs.4,29,307/- Rs.1,94,307/- rounded of to Rs.1,94,400/- 12. Since the accident happened in the year 2002 and the award was passed in the year 2006, the interest granted at 9% stands reduced to 7.5% in view of the decision of the Apex Court reported in 2005 (3) C.T.C. 373 (Tamil Nadu State Transport Corporation vs. S.Rajapriya). 13. In the result, the civil miscellaneous appeal is allowed. (i) The award of the Tribunal is reduced to Rs.1,94,400/- from Rs.4,29,307/-. (ii) The award amount shall carry interest at the rate 7.5% p.a. from the date of petition to till the date of deposit. (iii) Learned counsel for the appellant states that entire https://hcservices.ecourts.gov.in/hcservices/ award amount has already been deposited. The injured claimant is entitled to withdraw the award amount with interest 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 order as to costs. (vi) Consequently, M.P.No. 1 of 2008 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ra To 1.The Motor Accidents Claims Tribunal, (Subordinate Judge), Krishnagiri. 2.The Section Officer,V.R.Section,High court, Madras. 1 CC To Mr.P. Arivudainambi, Advocate, SR NO.55974 1 CC To Mr.M. Krishnamoorthy, Advocate, SR NO.55621 CMA No. 787 of 2008 jsv(co) pmk/12.11.2008. https://hcservices.ecourts.gov.in/hcservices/