IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:06.11.2008 CORAM: THE HON'BLE MR.JUSTICE R.SUDHAKAR CMA.NO.3209 of 2007 and M.P.NO.1 of 2007 & 1 of 2008 National Insurance Company ltd., First Floor, Karthigeya Complex, 403, P-10, Mettur Main Road, Bhavani, Erode District. ...Appellant(3rd Respondent) Vs. 1.C.Raju @ Rasu 2.N.Thangavelu 3.P.Ramasamy ...Respondents(Petitioner and respondents 1 and 2) This Civil Miscellaneous Appeal is filed against the award and decree dated 23.7.2007 made in O.P.NO.81 OF 2006 on the file of the Motor Accidents Claims Tribunal, Sub Court, Sankari. For Appellant : Mr.D.Bhaskaran For Respondent No1 : Mr.N.Manokaran For Respondent Nos.2 & 3: No appearance ------- J U D G M E N T The National Insurance Company is on appeal challenging the award dated 23.7.2007 passed in O.P.NO.81 of 2006 on the file of the Motor Accident Claims Tribunal, Sub Court, Sankari. 2. This is a case of injury. The accident in this case happened on 11.8.2005 at about 7 p.m. The injured claimant C.Raju @ Rasu aged about 40 years is an agriculturist cum Coolie. When he was travelling in a bicycle , he was hit by a Tractor insured with the appellant Insurance Company. In that accident, he suffered a fracture of the left wrist and fracture of ribs. https://hcservices.ecourts.gov.in/hcservices/ He also suffered injuries to the bladder area. He was treated in the Government Hospital, Coimbatore from 11.8.2005 to 2.9.2005 and again he was treated in the M/s Harini Hospital at Erode from 13.9.2005 to 28.9.2005. He was once again admitted in the same hospital and treated from 15.11.2005 to 7.12.2005. In , he was in hospital for nearly 59 days as inpatient. He filed a claim for compensation for a sum of Rs.7,11,000/-, stating that he was earning a sum of Rs.4,500/- per month. 3. In support of the claim, the claimant was examined as PW.1 and the Doctor was examined as PW2. Exs.A1 to A19. were marked. Ex.A1 is the first information Report. Ex.A2 is the copy of Accident Register, Ex.A3 is the Wound Certificate dated 16.12.2005, Ex.A4 is the Registration Certificate of the vehicle Ex.A5 is the photo copy of the Insurance to the vehicle, Ex.A6 is the hand chit for the period from 12.8.2005 to 12.9.2005, Ex.A7 is the recommendation letter, Ex.A8 is the discharge summary,Ex.A9 is the X ray, Ex.A10 is the report of the Motor Vehicles Inspector, Ex.A.11 is the copy of the charge sheet, EX.A12 is the copy of Rough sketch, Ex.A13 is the copy of the Judgment, Ex.A14 is the medical bills, Ex.A15 is the receipt for hire of car, Ex.A16 is the copy of the licence of the driver Ramasay, Ex.A17 is the wound certificate dated 12.2.2007, Ex.A18 is the X ray and Ex.A19 is the receipt for X ray. No oral or documentary evidence were let in on behalf of the appellant/first respondent before the Tribunal. 4. The finding of negligence on the part of the driver of the vehicle who caused the accident and the injury suffered by the claimant and appellant's liability to pay the compensation is not in dispute and as such, the said finding is confirmed. 5. The only contention raised by the learned counsel for the appellant is on the quantum of compensation. 6. As regards the compensation, the same was decided by the Tribunal from paragraph 8 onwards in answer to point No.2. The age of the injured claimant as 40 years is not in dispute. In so far as the income is concerned, though he claimed Rs.4,500/- per month, in the absence of specific material, the Tribunal fixed the income at Rs.4,000/- per month. The income fixed by the Tribunal is not seriously disputed, as the accident happened in the year 2005. Considering the three episodes of hospitalization and treatment as inpatient and the procedure done, the Doctor who examined the claimant assessed the disability at 40%. But the Tribunal fixed the disability at 37%. The Tribunal, thereafter proceeded to determine the loss of earning capacity based on the disability assessed at 37%, by adopting multiplier of 16 and granted compensation as follows: https://hcservices.ecourts.gov.in/hcservices/ Sl. No. Head Amount granted by the Tribunal 1 Loss of earning capacity due to disability(Rs.4,000 x 12 x16x37/100) Rs.2,84,160/- 2 Pain & Sufferings Rs. 30,000/- 3 Extra Nourishment Rs. 15,000/- 4 Medical Expenses Rs. 44,191/- 5 Conveyance expenses Rs. 400/- 6 X ray charges Rs. 200/- Total Rs.3,73,951/- The Tribunal awarded compensation in a sum of Rs.3,73,951/- at 7.5% p.a. 7. Learned counsel for the appellant stated that in this case the quantum of compensation has to be reduced, as the Multiplier 16 adopted in this case is higher. 8. Counsel for the respondent justified the award stating that the injured claimant is an agriculturist-cum-coolie by profession. Due to the fracture of wrist, fracture of rib and the urinary bladder related problem, he is unable to work as coolie, as before. Therefore his earning capacity has been very much affected and the Tribunal has rightly adopted 16 Multiplier for determining the pecuniary loss. He also pleaded that no amount has been granted for attender charge. Considering the long period of treatment, no compensation has been granted for loss of income during the treatment and no compensation has been granted for loss of amenities. The compensation granted towards pain and suffering is meagre. 9. In this case, the 40 years old agriculturist cum coolie suffered a fractured wrist and ribs. He has an injury in his abdomen and the urinary track is also affected. These three injuries will affect the earning capacity of the coolie who has to earn by his physical strength. The 59 days of medical treatment, the nature of injury and treatment will affect the earning capacity of the injured claimant that is not in dispute. The disability in his case has been assessed at 40% and the Tribunal has reduced it to 37% and a specific reason is given. As rightly pointed out by the learned counsel for the respondent/claimant, no amount has been granted for attender https://hcservices.ecourts.gov.in/hcservices/ charges and loss of income for the period of 6 to 8 moths of treatment and for loss of amenities and on other heads applicable which should have been granted in the case of this nature. 10. A 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 and the basis for arriving at the proper multiplier in paragraph 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 '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." https://hcservices.ecourts.gov.in/hcservices/ 11. In the case of injury of this nature, Multiplier method can be adopted if the nature of injury limits the earning capacity of the injured claimant. But, as pointed out by the Division Bench of this Court cited supra, the possibility of the injured claimant earning by other methods has to be considered. However, the Multiplier as in the case of death need not be applied. In this case, the proper Multiplier to be adopted considering the age, nature of injury,the disability assessed, the occupation of the injured claimant will be 10 and not 16. The compensation has to be based on lesser multiplier and not as in the case of death. The compensation stands modified to the extent below. The amounts not in dispute are confirmed. Sl.No . Head Amount granted by the Tribunal Amount granted by this Court 1 Loss of earning capacity due to disability(Rs.4,000 x 12 x 16x37/100) Rs,2,84,160/- ----- 1 (a) Disability assessed at 37% coupled with loss of earning capacity(Rs.48,000 x 10 x 37/100) ---- Rs.1,77,600/- 2 Pain and Suffering Rs. 30,000/- Rs. 30,000/- 3 Extra Nourishment Rs. 15,000/- Rs. 15,000/- 4 Medical Expenses Rs. 44,191/- Rs. 44,191/- 5 Conveyance expenses Rs. 400/- Rs. 5,000/- 6 X ray Charges Rs. 200/- Rs. 200/- 7 Attender Charges ---- Rs. 7,500/- 8 Loss of Income during treatment (Rs.4,000 x 4 months) ---- Rs. 16,000/- Total Rs. 3,73,951/- Rs. 2,95,491/- Since the accident is of the year 2005 and award is of the year 2007, the interest at 7.5% is confirmed. 12. It is stated that entire amount has been deposited as per the award of the Tribunal. https://hcservices.ecourts.gov.in/hcservices/ 13. In the result, the Civil Miscellaneous Appeal is allowed in part as follows:- (i) The compensation awarded by the Tribunal is reduced to Rs. 2,95,491/- from Rs.3,73,951/-. (ii) The interest at 7.5% is confirmed. (iii) The claimant is permitted to withdraw the amount as per the order of this Court. (iv) The appellant is entitled to withdraw the balance amount in deposit after settling the claimant. (v) There will be no order as to cost. Consequently, connected miscellaneous petitions are closed. VJY Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The Motor Accidents Claims Tribunal, Sub Court, Sankari. 2. The V.R. Section, High Court, Madras. + 1 cc to Mr. N. Manokaran, Advocate, SR No.61916 + 1 cc to Mr. D. Bhaskaran, Advocate, SR No.61879 CMA.NO.3209 OF 2007 and connected M.Ps KA(CO) SR/28.1.2009 https://hcservices.ecourts.gov.in/hcservices/