IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 17.08.2010 CORAM THE HONOURABLE MR.JUSTICE B. RAJENDRAN C.M.A. No. 2765 of 2007 The Branch Manager National Insurance Company Limited Branch N. Sathi Road Coimbatore ... Appellant Versus 1.Veeramani 2.Vimalanathan ... Respondents PRAYER: Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award made in MACTOP No.648 of 2005, dated 09.04.2007, on the file of the Motor Vehicles Accident Claims Tribunal (Fast Track Court No.4 ), Tirupur, Coimbatore. For appellant : Mr. S. Vadivel For respondents : Mr. S.S. Swaminathan JUDGMENT The appeal is preferred by the Insurance Company-appellant against the Award dated 09.04.2007 made in MACTOP No.648 of 2005 on the file of the Motor Vehicles Accident Claims Tribunal (Fast Track Court No.4), Tirupur, Coimbatore. The insurance company is disputing the quantum of compensation of Rs.1,85,800/- awarded by the court below and not the liability to pay the compensation. 2. The facts which are necessary to be mentioned are that on 27.06.2005 at about 11.15 hours, when the claimant/first respondent herein was driving the mini auto bearing Registration No. TN 48 2350 from North to South in the Tirupur to Avinashi Road Railway Overbridge, Tirupur, the driver of the mini auto bearing Registration No. TN 38 T 5148 drove it in a rash and negligent manner and dashed against the auto driven by the claimant. In the impact, the claimant sustained grievous fracture injuries in the right tibia and fibula, both hand wrist fracture, nose bone fracture, injuries on his head, frontal region of head and all over his body. The claimant was taken to Government General Hospital, Tirupur where he was admitted as an in-patient and treated for twenty days. At the time of accident, the claimant was 36 years old, employed as a auto driver under one A. Abbas, owner of the mini auto and earned Rs.6,000/- per month. Due to the accident, he could not discharge his duties as before. Therefore, he filed the claim petition claiming compensation of Rs.5 lakhs for the injuries sustained by him. https://hcservices.ecourts.gov.in/hcservices/ 3. The learned counsel for the appellant insurance company would contend that even according to Ex.P.2, Wound Certificate, the claimant sustained fracture of right ankle, 5th metacarpal bone in the right hand and fracture in the left wrist for which the doctor has certified 44.53% of permanent disability under Ex.P.3 Disability Certificate. The Court below however reduced the disability to 30%, but unfortunately adopted the multiplier '16' to arrive at the compensation amount, which is legally not sustainable. By taking the monthly contribution of the claimant at Rs.3,000/- per month and by applying multiplier '16' the court below had arrived at Rs.5,76,000/- out of which compensation for 30% disability was arrived at Rs.1,72,800/-. In any event, applying multiplier method in a case of injury is unwarranted and he prayed for setting aside the award. 4. The learned counsel for the claimant/respondent would contend that the claimant sustained fracture, both on his right ankle as well as left wrist. At the time of accident, he was aged 36 years and due to the accident, he could not discharge his duties as a mini auto driver as the fracture had caused severe pain and suffering. Under those circumstances, merely because the court below had applied multiplier method in a case of injury and granted compensation amount, it will not vitiate the award. In any event, the court below had awarded reasonable amount as compensation and that the award granted by the Court below is fair, and reasonable and correct. 5. Heard the learned counsel for both sides. The point for consideration in this appeal is whether the quantum of compensation awarded by the Court below is reasonable or it is liable to be interfered with. 6. The appellant mainly attacked the award passed by the court below on the ground that the court below, in a case of injury, had applied multiplier method and awarded compensation, which is legally not permissible. Even though the claimant had sustained fracture injuries, such a disability has not affected the earning capacity of the claimant. Further, when there is no evidence at all to suggest as to what exactly the sufferings of the claimant due to the accident, the court below ought not to have granted compensation by applying multiplier method. 7. I find force in the argument of the learned counsel for the appellant. The Division Bench of this Court had time and again held that applying multiplier theory and granting compensation in a case of injury is legally not sustainable unless it is proved that the injury sustained by the claimant had seriously affected his earning capacity. In this case, the claimant had admittedly sustained injuries which are in the nature of (i) fracture of right ankle (ii) fracture of 5th metacarpal bone in the right hand and (iii) fracture in the left wrist. For the injuries sustained by the claimant, he has to be compensated, however, adopting multiplier method is unwarranted inasmuch as the claimant is not totally prevented from earning at all. 8. It is seen from the evidence of PW1 that immediately after the accident, he was given first aid in the TMF Hospital, Tirupur and https://hcservices.ecourts.gov.in/hcservices/ thereafter, he was admitted as in-patient in the Tirupur Government Hospital. He also deposed that because of the accident, he is unable to move the left leg, sit or stand for a long time. He also deposed that he could not walk fast or able to lift heavy weight. In his evidence, he stated that earlier he was earning a sum of Rs.6,000/-, but subsequent to the accident, he is unable to drive the vehicle. 9. PW2, Doctor who assessed the disability had deposed in his evidence that he had seen the claimant only after 1 ½ years of the accident and even in his evidence he would say only this:- ......tyJ fQqf;fhy; tyJ cs;s';if ,lJ kzpf;fl;L gFjpia mGj;Jk; nghJ typa[s;sJ vd;Wk; tyJ fQqf;fhy; K:l;L. ,lJ kzpf;fl;L K:l;L. tyJ if Rz;Ltpuy; Mfpatw;wpd; mirt[fSk; jpUg;g[jYk; Fiwe;J ,uz;L iffspd; rijfspd; typika[k;. tyJ fhypd; rijfspd; typika[k; Fiwe;J. tyJ fhy; kw;Wk; tyJ if rijfspd; gUkd; Fiwe;J cs;sJ vd;Wk; .... 10. He would further state in his evidence thus:- //////kz;oapLtjpYk; ,uz;L fhy;fspYk; bjhlh;e;J epw;gjpYk; fhiy klf;fp cl;fhUtjpYk; ,ayhik cs;sjhft[k;///// 11. Though the evidence of PW2 would reveal as if he had observed the aforesaid difficulties that is being confronted by the claimant, a close reading of the evidence would make it clear that these are all the difficulties expressed by the claimant himself and they were not absorbed by the Doctor by examining him. Whereas the Doctor in his disability certificate had assessed the disability of the claimant at 44.5%. Nowhere in the disability Certificate or in the evidence the Doctor had stated as to how far the injuries would immobilise the claimant or it will affect his future earning capacity. The Courts are relying upon the evidence of the Doctors to arrive at a just compensation to rehabilitate the injured persons, but if the Doctors evidence are not in consonance with the nature and extent of injuries sustained by the claimant or the percentage of disability assessed by the Doctor is not in consonance with the injuries, the Courts cannot arrive at a just compensation. It goes without saying that evidence of this nature given by a Doctor in this case is unfortunate. The Courts expect a clear and cogent evidence from both from the injured person as well as the medical experts so as to evaluate and assess the correct quantum of compensation. Unfortunately, in this case, the claimant did not adduce evidence to show as to how the injuries sustained by him would affect his earning capacity, barring a sentence that because of the accident he is unable to work. While evaluating the nature and extent of injury and to compensate the injured, the basic requirement is that the claimant should let in evidence as to how long he was hospitalised, the nature and extent of injury, what exactly the sufferings he meted out or as to how his or her earning capacity has been depleted by reason of the accident. In this case, the claimant has not produced medical records, discharge summary, report from any hospital to prove the nature of injuries sustained by him. The Doctor https://hcservices.ecourts.gov.in/hcservices/ who originally treated the claimant at the time of accident was not examined, but PW2, who examined the claimant after more than a year from the date of accident and issued the wound certificate alone was examined. The Doctor, who comes to the Court and steps into the witness box also deposed that he examined the claimant only after 1½ years, but suddenly, without any analysis, the Doctor has stated that the disability can be assessed at 45%. The basis behind the assessment of disability is not spelled out by the Doctor. 12. No doubt, the Doctor is an expert. The Doctors are expected to explain the actual disability sustained by the claimant. Such oral evidence of the Doctors should also be duly incorporated in the Disability Certificate. In other words, the disability certificate should be in consonance with the nature and extent of injuries sustained by the claimant. In this case, the insurance company also should be equally blamed for, there is no suggestion or questions put to the witness at the time of cross examination. Had there been some suggestion or questions put to the witnesses such as the claimant or the Doctor, much factual aspects could have been elucidated, but the cross- examination was done in a mechanic way 13. Be that as it may, the point now is what is the amount of compensation to be awarded to the claimant, who sustained injuries in the Motor accident. Admittedly, the claimant sustained fracture in the right leg. He also sustained a fracture in the wrist, but there is no evidence to suggest as to how long he was hospitalised and what exactly the treatment given to him. Unless this is established, merely because a claim petition is filed, the Courts could not effectively adjudicate the claim for compensation. When there is no evidence is forthcoming from PW1, the injured person, it cannot be merely substantiated by the documentary evidence namely Disability Certificate issued by the Doctor, especially when the Doctor who has given treatment to the claimant only after 1 ½ years from the date of accident alone was examined. Under those circumstances, it cannot be possible for the Courts to infer the exact difficulty being faced by the claimant. 14. When we analyse the quantum of compensation awarded by the court below, the Court below applied the multiplier method and granted the compensation amount in a case of injury, which is legally not sustainable. Such a compensation amount was arrived at on the basis that the claimant was an Auto driver earning about Rs.3,000/- per month, sustained 30% of disability, even though the Doctor has given 44.53% disability. The Court below had taken the disability at 30%, applied the multiplier theory without any evidence to suggest that the disability sustained by the claimant has affected the ability of the claimant to earn. 15. In this case, as mentioned above, there is no medical evidence on record. The claimant has not even produced the discharge summary, there is no plea regarding the actual disability, or any other legally acceptable evidence. Therefore, the Award granted by the court below by applying multiplier method has to be disallowed. The evidence available in the Court is the deposition of PW2, Doctor and Ex.P3, disability certificate by him. As mentioned above,much reliance could not be https://hcservices.ecourts.gov.in/hcservices/ placed on the disability Certificate. The evidence of PW1 also does not throw any light in respect of his disability. If that be the case, this Court has to determine the compensation amount payable to the claimant from out of the evidence available. Taking into consideration the Wound Certificate, multiple fracture sustained by the claimant, both in his right leg and left wrist and the evidence of PW3, the Auto driver who would say that after the accident the claimant is unable to work without stating the extent of the injuries sustained by him or how long he could not work, for the injuries sustained by the claimant, he has to be adequately and reasonably compensated. 16. The claimant, being an auto driver, had sustained fracture in his leg and therefore, it would be difficult for him to continue his work as an auto driver, as before. Therefore, taking into account the disability at 30%, as taken by the Court below, as per the decision of the Supreme Court, if a maximum sum of Rs.2,000/- per percentage of disability is awarded, the compensation towards disability can safely be arrived at 30% x Rs.2000 = Rs.60,000/-. The Court below had granted Rs.10,000/- for pain and sufferings, which according to me is reasonable. The Court below had further granted for Transportation and Extra Nourishment at Rs.1,000/- and Rs.2,000/- respectively, which in my view is not in accordance with law and it can be enhanced to Rs.5,000/- each. Thus, the claimant is entitled to a total sum of Rs.80,000/- as compensation for the injuries sustained by him as against the compensation of 1,72,800/- awarded by the court below. 17. It is now brought to the notice of this Court that when the appeal was taken up for hearing on 12.11.2007, this Court granted interim stay till 26.11.2007 and posted the hearing of the appeal on 26.11.2007. Thereafter, when the appeal was taken up for hearing on 12.08.2010, the learned counsel for the respondent also taken notice. However, it is now brought to the notice of this Court that even though no conditional order was granted by this Court, the insurance company had deposited the entire amount before the court below and on such deposit, the claimant had withdrew the entire amount. Curiously, the learned counsel appearing for the insurance company also did not oppose the withdrawal of the amount and he had stated 'No objection' for withdrawing the amount. It is rather unfortunate that the entire compensation amount deposited by the insurance company was withdrawn pending appeal before this Court, especially when interim stay was granted by this Court, that too even after the counsel for the respondent entered appearance before this Court. The learned counsel for the insurance company also stated 'No Objection' before the court below for withdrawal of the entire claim amount pending disposal of the appeal by this Court and the claimant also withdrawn the entire compensation amount, which the claimant/first respondent is legally not entitled to. The insurance company also has to be blamed for withdrawal of the entire compensation amount by the claimant because the learned counsel for the insurance company before the court below had stated No Objection for withdrawal of the claim amount. In any view of the matter, now, this Court had determined the compensation amount, which the claimant/first respondent is legally entitled to by modifying the award passed by the Court below. Therefore, the claimant/ first respondent herein is directed to deposit back the balance amount of https://hcservices.ecourts.gov.in/hcservices/ Rs.1,05,800/- along with the interest at 7.5% per annum within a period of one month from the date of receipt of a copy of this order. The Appellant/Insurance Company is directed to withdraw the entire balance amount. 18. In the result, this Civil Miscellaneous Appeal is partly allowed. No costs. Consequently connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar mps To The Fast Track Judge, Motor Vehicles Accident Claims Tribunal, (Fast Track Court No.4) Tirupur, Coimbatore. +1cc to Mr.S.Vadivel, Advocate Sr 60554 +1cc to Mr.S.S.Swaminathan, Advocate Sr 61046 KSJ(CO) km/16.5. C.M.A.No.2765 of 2007 https://hcservices.ecourts.gov.in/hcservices/