IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.06.2008 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR C.M.A.No.258 of 2002 Smt.A.M.Syed Sultan Gani Proprietor of Dhanalakshmi Bus Service No.33, Kailasanathar Koil St., Karaikkal Town, Karaikkal Taluk ... Appellant/Respondent No.1 Vs. Babu ... Respondent/Petitioner This Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 as against the Judgment and Decree of the Motor Accidents Claims Tribunal(Addl.Sub-Judge) at Nagapattinam passed in M.C.O.P.No.106/1999 dated 26.06.2000. For Appellant : Mr.K.S.Narasimhan For Respondent : No appearance JUDGEMENT This Civil Miscellaneous Appeal is directed against the judgment and decree of the Motor Accident Claims Tribunal (Addl. Sub-Judge) at Nagapattinam dated 26.06.2000 made in M.C.O.P.No.106/1999 awarding a sum of Rs.4,63,331/- as compensation to the respondent herein/ claimant for the injuries sustained by him in a road accident that took place on 21.03.1999. 2. The respondent herein preferred a claim on the file of the Motor Accident Claims Tribunal (Addl. Sub-Judge) at Nagapattinam against the appellant herein and the New India Assurance Company represented by its Branch Manager, Karaikkal claiming a compensation of Rs.7,00,000/- for the injuries sustained by him in a road accident that took place at 11.45 Hrs on 21.03.1999. According to the respondent/claimant, while he was proceeding towards his residence, along Injikudi Main Road, in his motorcycle bearing Regn.No.TN-50-4613, the passenger bus belonging to the appellant/respondent and insured with the New India Assurance Company bearing Regn.No.PY-02-A-7098 came there driven by its driver in a rash and negligent manner which resulted in a collision https://hcservices.ecourts.gov.in/hcservices/ of the said bus with the motorcycle. Contending that the accident took place solely due to the rash and negligent driving of the above said bus; that respondent herein/claimant sustained grievous injuries including fractures on the right leg and that the said injury despite proper treatment resulted in permanent disability, the respondent/claimant had made a claim of compensation to the tune of Rs.7,00,000/- as aforesaid. 3. The claim was resisted by the appellant herein/first respondent by filing a counter statement in which the petition allegations regarding the nature of accident and the liability of the appellant/first respondent were denied. It was also contended therein that the amount claimed as compensation was highly excessive and exorbitant. The insurer who had been arrayed as the second respondent in the Original Petition had also filed a counter statement containing similar averments. 4. The Tribunal framed necessary issues and conducted trial in which two witnesses were examined on the side of the claimant (respondent herein) as P.W.1 and P.W.2 and twenty documents were marked as Ex.A1 to A20. No witness was examined and no document was marked on the side of the respondents/appellant herein in the appeal. The Tribunal considered evidence, both oral and documentary, and upon such a consideration held that the accident was the result of the rash and negligent driving of the bus bearing Regn.No.PY-02-A-7098 belonging to the appellant herein/1st respondent. Holding further that the said bus had been insured with the New India Assurance Company, the second respondent in the Original Petition, the Tribunal passed an award directing the appellant herein and the insurance company to jointly and severally pay a sum of Rs.4,63,331/- as compensation along with an interest at the rate of 12% per annum from the date of petition till realisation. The split up particulars of the amount of compensation awarded by the Tribunal are as under:- Compensation for permanent disability :Rs. 1,58,760.00 Expenditure on attendant : Rs. 10,000.00 Medical Expenses (past and future) :Rs. 1,84,571.00 Loss of future earning capacity : Rs. 75,000.00 Extra nourishment : Rs. 15,000.00 Pain and suffering : Rs. 20,000.00 ---------------- Total Rs.4,63,331.00 ---------------- https://hcservices.ecourts.gov.in/hcservices/ 5. Aggrieved by the said judgment and decree of the Tribunal, the present appeal was originally filed by the owner of the vehicle as well as the insurer of the vehicle involved in the accident, namely the bus bearing Regn.No.PY-02-A-7098. However, during the pendency of the appeal, as it was contended on behalf of the respondent that a joint appeal by the owner of the offending vehicle as well as its insurer was not maintainable, the sole appellant herein, namely the owner of the offending vehicle sought leave of the court by filing a memo to permit him to proceed with the appeal after deleting the name of the insurance company from the array of parties. Relying on the judgment of a Division Bench of the Hon'ble Supreme Court in "V.Subbulakshmi & Ors. v. S.Lakshmi & Anr." Reported in "2008 AIR SCW 1270", the said memo was accepted and the name of the insurer was deleted from the array of parties and the present sole appellant was permitted to pursue the appeal. 6. Though the respondent herein/claimant was served with a notice, he did not chose to enter appearance either in person or through an advocate. Under such circumstances, judgment is pronounced after hearing the arguments advanced on behalf of the appellant and upon perusing the materials available on record. 7. Though the appellant herein, as the first respondent before the Tribunal, contended that the accident did not take place due to the negligence on the part of the driver of the bus belonging to him as alleged in the petition, the said point has not been urged in the grounds of appeal as one of the grounds. The entire challenge made to the award of the Tribunal is confined to the quantum of damages. Therefore, the only question that arises for consideration in this appeal is, " Whether the compensation awarded by the Tribunal is on the higher side liable to be reduced in this appeal?" 8. Admittedly, the respondent herein/claimant sustained a fracture of right femur, apart from other injuries, for which he was given treatment at the first instance in the Government Hospital at Mayiladuthurai, then in a number of private hospitals including Vinodhagan Memorial Hospital at Thanjavur as evidenced by the testimony of P.W.1 and P.W.2 and Ex.A1 to Ex.A12 and Ex.A18 to Ex.A20. P.W.2 is the Medical Officer who examined the respondent herein/petitioner, assessed disability and issued the Disability Certificate under Ex.A20. He has assessed the disability at 49% and certified the same to be permanent. In the absence of any other contra evidence, the Tribunal accepted the said assessment and held that the accident resulted in 49% permanent disability to the respondent herein/claimant. As against the contention of the respondent herein/claimant that he was earning a monthly income of Rs.4,000/-, the Tribunal took his monthly income at Rs.1,500/-. There is no serious challenge regarding the assessment of permanent disability as well as the monthly income adopted by the Tribunal. However, the Tribunal took the age of the respondent herein/ claimant to be 30 years. Perhaps relying on the entry found in the https://hcservices.ecourts.gov.in/hcservices/ Accident Register marked as Ex.A2, the Tribunal might have fixed his age at 30 years. The learned counsel for the appellant submitted that the appellant did not have any grievance over the said finding also. 9. It is the contention of the learned counsel for the appellant that there had been duplication of award in so far as the Tribunal chose to award a sum of Rs.75,000/- towards loss of future income after having assessed the damages for the permanent disability at Rs.1,58,760/-. The said amount was arrived at taking the permanent disability at 49% and assuming that the loss of future earning capacity shall be equal to the percentage of disability. In fact the tribunal assessed annual earning of the respondent/claimant prior to the accident and loss of future earning at Rs.18,000/- and Rs.8,820/- respectively. Holding that the respondent/claimant was aged 30 years the tribunal selected '18' as the multiplier and arrived at the above said figure (Rs.1,58,760/-) by multiplying the same with the multiplication (Rs.8,820/-). The said amount, no doubt represents the loss of future earning capacity, as per the procedure adopted by the tribunal. At the same time the tribunal has also awarded a further sum of Rs.75,000/- towards loss of future income. This court finds force and substance in the above said submission made by the counsel for the appellant that the amount of Rs.75,000/- awarded by the tribunal for loss of future earning has got to be disallowed. 10. The learned counsel for the appellant argued further that the selection of the multiplier made by the Tribunal was erroneous and hence the same should be revised. The tribunal applied the multiplier 18 for a person admittedly having completed 30 years of age. Adoption of the maximum multiplier of 18 for a person who has completed the age of 30 years, according to this court, is not proper and the proper multiplier to have been selected shall be 17. Therefore, from the amount awarded towards loss of future earning capacity caused by the permanent disability, namely Rs.1,58,760, Rs.8,820/- has got to be reduced. 11. So far as the award of a sum of Rs.1,84,571/- towards medical expenses and for the damage caused to the vehicle, the appellant has not made any serious challenge. The learned counsel for the Appellant submitted that the said amount should be confirmed as the same was supported by documents. On the other hand, the learned counsel for the appellant contended that a sum of Rs.10,000/- awarded towards the expenditure incurred on the attendants and a sum of Rs.15,000/- awarded towards the expenditure for extra nourishment deserved drastic reduction. 12. On the other hand, since the tribunal has not adopted the method of awarding lumpsum amount for permanent disability, there is no impediment for awarding separate amount for loss of amenities caused by the permanent disability. Therefore, while disallowing the amount of Rs.75,000/- awarded by the Tribunal as compensation for future loss of earning, this court holds that a sum of Rs.30,000/- can be awarded towards loss of amenities caused by the https://hcservices.ecourts.gov.in/hcservices/ permanent disability suffered by the respondent herein/claimant. 13. So far as the compensation for expenditure towards extra nourishment and expenditure on the attendant are concerned, the Tribunal has awarded Rs.15,000/- and Rs.10,000/- respectively. This court feels that the same should be reduced to Rs.7,500/- and Rs.5,000/- respectively. No interference is warranted regarding the amount awarded towards damages for pain and suffering. For all the reasons stated above, this court fixes the total amount of compensation to which the respondent herein/claimant is entitled at Rs.3,97,011/-. At the cost of repetition, the split up particulars are furnished here under:- Compensation for loss of earning capacity caused by permanent disability :Rs. 1,49,940.00 Expenditure on attendant : Rs. 5,000.00 Medical Expenses (past and future) :Rs. 1,84,571.00 Loss of amenities caused by the permanent disability : Rs. 30,000.00 Extra nourishment : Rs. 7,500.00 Pain and suffering : Rs. 20,000.00 ---------------- Total Rs.3,97,011.00 ---------------- So far as the question of interest is concerned, this court accepts the contention of the learned counsel for the appellant that the award of interest at 12% is on the higher side and the same has got to be reduced. Taking into consideration the present bank rates, the rate of interest is to be reduced to 9% per annum. 14. For all the reasons stated above, the appeal shall stand partly allowed and the compensation awarded by the Tribunal is reduced to Rs.3,97,011/- from Rs.4,63,331.00. The rate of interest is also reduced to 9% from 12%. Subject to the above said reduction and modification, in all other respects, the award of the Tribunal shall stand confirmed. There shall be no order as to cost. It is brought to the notice of this court that the insurer had deposited the entire award amount. In view of the reduction, the excess payment made by the insurer and available with the Tribunal is directed to be refunded to the insurer. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ asr To 1) The Motor Accidents Claims Tribunal(Addl.Sub-Judge) at Nagapattinam 2. The Section Officer, VR Section, High Court, Madras 104. +1 cc To Mr.K.S.Narasimhan, Advocate, SR.28788 C.M.A.No.258/2002 sgl [co] gkg/22.7 https://hcservices.ecourts.gov.in/hcservices/