IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 21.02.2011 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.3193 of 2007 & M.P. No.2 of 2007 The New India Assurance Co. Ltd., Cuddalore. .. Appellant/2ND RESPONDENT Vs 1.J.Kandasamy 2.G.Selvaraju . Respondents/petitioner and 1st respondent Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 10.10.2006, made in M.C.O.P.No.2033 of 2004, on the file of the Motor Accident Claims Tribunal, Ist Additional Subordinate Judge, Cuddalore. For appellant : M/s.C.Praba For respondentNo.1 : M/s.M.Malar For M/s.M.Muthuselvi - - - J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant / New India Assurance Company Limited against the award and decree, passed by the Motor Accident Claims Tribunal, Ist Additional Subordinate Judge, Cuddalore in M.C.O.P.No.2033 of 2004, dated 10.10.2006, awarding a compensation of Rs.2,47,890/- with interest at the rate of 7.5% per annum. 2. Aggrieved by the said Award and Decree, the appellant herein has filed the above appeal praying to scale down the award and decree passed by the Tribunal. 3. The short facts of the case are as follows: On 13.08.2004 at around 4.45 p.m., while the petitioner was riding his bicycle from west to east direction on the Beach Road, Cuddalore and at that point of time, first respondent's Auto Rickshaw bearing Registration No.TSK 1134, came in the opposite direction in a rash and negligent manner at high speed and dashed against the cyclist. In the result, the claimant had sustained grievous injuries. Hence, the claimant has filed the claim petition against the respondents and claiming a compensation of Rs.5,00,000/- with interest. 4. The second respondent / New India Assurance Company https://hcservices.ecourts.gov.in/hcservices/ Limited had filed a counter statement and resisted the claim petition stating that the age, income and occupation of the claimant are denied. The second respondent further stated that the accident had been invited by the Cyclist. The second respondent further stated that the claim amount is an exorbitant one. 5. On considering the plea of both parties, the Motor Accident Claims Tribunal had framed two issues, namely; "1. Who was responsible for the accident? 2. Whether the claimant is entitled to receive compensation? If so what is the quantum of compensation?" 6. On the side of the claimant two witnesses were examined, namely, PW1-claimant, PW2-Dr.Chandiran and seven documents were marked, namely, Ex.P1-First Information Report, Ex.P2-Motor Vehicle Inspector's Report, Ex.P3-Wound Certificate, Ex.P4-Copy of the Insurance Policy, Ex.P5-Medical Bills, Ex.P6-Disability Certificate and Ex.P7-X-ray. On the side of the respondent no witness was examined and no document was marked. 7. PW1 had adduced evidence stating that on 13.08.2004 at around 4.45 p.m., he was proceeding on his bicycle from west to east direction on the Beach Road, Cuddalore, when at that time, the first respondent's Auto Rickshaw bearing Registration No.TSK 1134, came in the opposite direction in a rash and negligent manner at high speed and dashed against the cyclist. In the result, he had sustained grievous injuries. He further stated that after the accident he was taken to the Krishna Hospital, Cuddalore. PW1 further stated that at the time of accident, he was working as a Junior Assistant in Saravanabhava Supermarket and earning a sum of Rs.4,500/- per month. PW2 Doctor examined the claimant and verified the medical records and he assessed the disability as 30% sustained by the claimant. He further stated that the claimant had sustained bone fracture injuries on his left shoulder and on his left forehead. Due to the accident, the claimant unable to perform his normal duty. PW1 further adduced evidence stating that after the accident, his face has become disfigured. 8. On considering the evidence of both parties and on perusing the documentary evidence the Tribunal had awarded the compensation a sum of Rs.2,47,890/- with interest at the rate of 7.5% per annum. The break up compensation are as follows:- Rs.2,30,400/- (1200 x 12 x 16 x 30/100) towards loss of income for 30% disability; Rs.5,000/- against nutrition; Rs.10,000/- towards pain and suffering Rs.1,490/-; towards medical expenses; Rs.1,000/- towards extra nourishment; 9. The learned counsel for the appellant / New India Assurance Company Limited emphatically argued that the learned Motor Accident Claims Tribunal adopted the multiplier method and https://hcservices.ecourts.gov.in/hcservices/ awarded the compensation a sum of Rs.2,30,400/- under the head of 'loss of income' for 30% disability, which is not pertinent, since the claimant working under his employer as Junior Assistant, as such his avocation was not entirely affected. The learned counsel further argued that the Tribunal had awarded a sum of Rs.5,000/- under the head of Nutrition and again the Tribunal awarded a sum of Rs.1,000/- under the same head which are not pertinent in the instant case. The learned counsel further argued that the claimant had sustained simple injuries, but PW2 Doctor assessed the disability as 30%, which is on the higher side. 10. The learned counsel for the claimant argued that the claimant had sustained grievous injuries on his left shoulder and on his left forehead. As per PW2-doctor evidence, the claimant's left shoulder moment is restricted, which is permanent one. The learned counsel further argued that the claimant's face has become disfigured. Further, the Tribunal had not considered the award under the heads of attender charges, loss of income during treatment period. 11. In view of the facts and circumstances of the case and arguments advanced by the learned counsels on either side, and on perusing the impugned award of the Tribunal, this Court is of the considered opinion that the learned Motor Accident Claims Tribunal had adopted the multiplier method, which is not pertinent in this case, since the claimant's avocation was not entirely affected, as such, the award passed by the Tribunal is not appropriate. Therefore, this Court modifying the compensation as follows:- Rs.60,000/- towards disability for 30%; Rs.1,490/- towards medical expenses; Rs.10,000/- towards pain and suffering; Rs.5,000/- towards nutrition; Rs.5,000/- against transport expenses; Rs.5,000/- towards attender charges; Rs.25,000/- towards reduce the original face value; Rs.13,500/- towards loss of income during medical treatment period. In total, this Court awards Rs.1,24,990/- as total compensation. Therefore, this Court scale down the compensation from Rs.2,47,890/- to 1,24,990/- with interest at the rate of 7.5% per annum from the date of filing the claim petition till the date of payment of compensation, which is fair and equitable. 12. On 18.12.2007, this Court imposed a condition on the appellant/ New India Assurance Company Limited, to deposit the entire compensation amount together with interest and cost to the credit of M.C.O.P.No.2033 of 2004, on the file of the Motor Accident Claims Tribunal, Ist Additional Subordinate Judge, Cuddalore. Therefore, it is open to the claimant to withdraw the said compensation fixed by this Court with accrued interest thereon, lying in the credit of M.C.O.P.No.2033 of 2004, on the file of the Motor Accident Claims Tribunal, Ist Additional Subordinate Judge, Cuddalore, after filing necessary payment out of application in accordance with law, subject to withdrawal if any made already. Likewise, the appellant/ New India Assurance https://hcservices.ecourts.gov.in/hcservices/ Company Limited is at liberty to withdraw the excess compensation, with accrued interest thereon after observing necessary formalities of the Court below. 13. In the result, this Civil Miscellaneous Appeal is partly allowed. Consequently, the Award and Decree, passed in M.C.O.P.No.2033 of 2004, on the file of the Motor Accident Claims Tribunal, Ist Additional Subordinate Judge, Cuddalore, dated 10.10.2006 is modified. Accordingly ordered. No costs. Consequently, connected miscellaneous petition is closed. Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar r n s To 1.The Motor Accident Claims Tribunal, Ist Additional Subordinate Judge, Cuddalore. CC to Mr.J.Chandran, Advocate SR 12314. CC to M/s.R.Muthuselvi, Advocate SR 12439. SSK(CO) dd 17/05/2011 https://hcservices.ecourts.gov.in/hcservices/