IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.10.2010 CORAM THE HONOURABLE MR. JUSTICE. C.S.KARNAN C.M.A.No.299 of 2008 United India Insurance Co., Ltd., Puthur, Trichy .. Appellant/ 3rd Respondent Vs 1.Vellingiri 2.Kannan 3.A.Joseph Louis .. Respondents/ Petitioner and Respondents 1 & 2 (RR2 & 3 exparte before the Lower Court. Hence notice may be dispensed with) Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the Award and Decree, dated 12.03.2007, made in M.C.O.P.No.122 of 2005, on the file of the Motor Accident Claims Tribunal, Sub-Ordinate Court, Udumalpet. For appellant : Mr.N.Vijayaraghavan For respondents : Mr.P.S.Kothandaraman for R1 Ex-parte - RR2 & 3 J U D G M E N T The above Civil Miscellaneous Appeal has been filed by the appellant/third respondent against the Award and Decree, dated 12.03.2007, made in M.C.O.P.No.122 of 2005, on the file of the Motor Accident Claims Tribunal, Sub-Ordinate Court, Udumalpet, awarding a compensation of Rs.2,70,000/- together with 7.5% interest per annum, from the date of filing the claim petition till the date of payment of compensation. 2.Aggrieved by the said Award and Decree, the appellant/third respondent 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: https://hcservices.ecourts.gov.in/hcservices/ On 22.04.2005, at about 02.00 p.m. the petitioner was proceeding on his bicycle to attend his classes after finishing his lunch. He was riding the cycle on the Dharapuram – Tiruppur main road with care and caution from north to south. While he was nearing Hotel Nalabagam near, Government I.T.I. the lorry bearing registration No.TN45 K6044, driven by the first respondent, belonging to the second respondent and insured with the third respondent Insurance Company, in a rash and negligent manner and dashed against the petitioner with the result the rear wheel of the lorry ran over the petitioner's left toe and right fore arm. He sustained multiple fracture and injuries, particularly left back foot puled off causory permanent disability. Nonetheless he sustained grievous injuries all over the body. As stated above fractures on left toe, where muscle grievous injury over peeled off right fore arm, contusions and abrasions all over the body. Immediately, after the said accident, he was taken to Government Hospital for treatment. Further, he was referred to Coimbatore Medical College Hospital for specialised treatment. He was admitted in emergency ward and undergoing treatment as in-patient. The said accident had happened only due to the rash and negligent driving of the first respondent. The second respondent is the owner of the vehicle and the third respondent is the insurer of the lorry. As such, the petitioner claimed a compensation of Rs.5,00,000/- before the Tribunal. 4.The third respondent/United India Insurance Co., Ltd.,, in their Counter, had resisted the claim petition, which reads as follows: "The respondent submit that the petitioner without following the traffic rules and without watching the main road without caution and car suddenly dashed the respondent back side vehicle. The above accident is only due to negligent act of the petitioner. The accident mentioned is a busy road. Hence the petitioner has no right claim compensation in his own negligent Act. The first respondent has been driven the vehicle in a regular speed and with care and caution and very normal speed and following the traffic rules. The petitioner has to prove that the injury sustained by him are grievous in nature. The respondent submits the injuries sustained by the petitioner of the simple nature and there is no permanent disability. The medical expenses and extra nourishment expenses and damage of wrist watch and dress and cycle amount claimed by the petitioner is highly excessive. The petitioner https://hcservices.ecourts.gov.in/hcservices/ did not have spent a such amount as claimed in the petition. The petitioner is put to strict proof that the vehicle TN45 K6044 was having valid permit, fitness certificate and insurance coverage during the time of accident. The petitioner has to prove driver of the above said vehicle is also having valid licence to drove the vehicle during the time of the accident. This respondent submits that the above said vehicle bearing No.TN45 K6044 is not insured with this respondent. The expense stated in para 21(a) high and imaginary and the petitioner has to prove the expense item wise. The respondent is not liable to pay any compensation as alleged. The petitioner claiming compensation without any basis. The respondent reserve his right to file additional counter if any." The third respondent prayed accordingly. 5.The learned Motor Accident Claims Tribunal had framed two issues for the consideration namely: (i) Whether the accident had occurred due to the rash and negligent driving of the first respondent? (ii) Whether the petitioner is entitled to get compensation? If so, what is the quantum of compensation? 6.On the petitioner's side, the petitioner was examined as PW1 and Dr.Sundararajan was examined as PW2 and eighteen documents were marked as Exs.P1 to P18 namely Ex.P1-First Information Report, Ex.P2-Motor Vehicle Inspector's Report, Ex.P3-Wound Certificate, Ex.P4-Charge Sheet, Ex.P5-Rough Sketch, Ex.P6-Accident Register, Ex.P7-Judgment of the Judicial Magistrate Court, Ex.P8-Medical Bills, Ex.P9-Prescriptions, Exs.P10 and 11-Photo copies, Ex.P12- Sports Certificate, Ex.P13-Acknowledge Card, Ex.P14-Interview Calling Letter, Ex.P15-Certificate issued by College Principal, Ex.P16-Medical Particulars, Ex.P17-Disability Certificate and Ex.P18-Photo copies. On the respondents' side no one was examined and no documents were marked. 7.The PW1, the claimant, had adduced evidence stating that on 22.04.2005, at about 02.00 p.m. the petitioner was proceeding on his bicycle to attend his classes after finishing his lunch. He was riding the cycle on the Dharapuram – Tiruppur main road with care and caution from north to south. While he was nearing Hotel https://hcservices.ecourts.gov.in/hcservices/ Nalabagam near, Government I.T.I. the lorry bearing registration No.TN45 K6044, driven by the first respondent, belonging to the second respondent and insured with the third respondent Insurance Company, in a rash and negligent manner and dashed against the petitioner with the result the rear wheel of the lorry ran over the petitioner's left toe and right fore arm. He sustained multiple fracture and injuries, particularly left back foot puled off causory permanent disability. He had also marked Ex.P1-FIR, Ex.P2-Motor Vehicle Inspector's Report and Ex.P7-Judgment copy of the Criminal Court. Further, he had adduced evidence stating that his left leg was fully damaged and his left leg sole removed. Right hand bone was fractured. Immediately after the said accident he was taken to the Government Hospital, Tarapuram for preliminary treatment. Thereafter, he was referred to CMC Hospital, Coimbatore, wherein he was in-patient for sometime. Again he was admitted at U.K.Hospital, Udumalpet, wherein he spent 25 days as an in-patient. A Surgical operation was also conducted. He had marked Ex.P3-wound certificate, Ex.P16-medical treatment particulars and Exs.P10, 11 and P18 photos of the injured person. 8.PW2, Dr.Sundararajan had adduced evidence stating that a surgical operation was conducted on his left sole and the muscles were removed. The operated region shows an abnormal position. The Doctor assessed the disability at 26%. He had also marked Ex.P17- Disability Certificate. 9.After considering the evidence of PW1 and, PW2 and documents, which were marked as exhibits, the learned Tribunal had come to the conclusion that the accident had occurred only due to the rash and negligent driving of the driver of the second respondent's vehicle, ie.the first respondent, therefore the third respondent/United India Assurance Co., Ltd., is liable to pay compensation and awarded the compensation as follows: i. Rs.35,000/- under the head of 26% disability, ii.Rs.20,000/- under the head of medical expenses, iii.Rs.2,04,000/- under the head of loss of income, due to the 26% disability, after adopting multiplier method, iv.Rs.5,000/- under the head of transport expenses and nutrition, v.Rs.5,000/- under the head of pain and suffering, In total, the Tribunal awarded a sum of Rs.2,70,000/- as compensation to the petitioner, together 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. Further, the Tribunal directed https://hcservices.ecourts.gov.in/hcservices/ the third respondent to deposit the compensation amount of Rs.2,70,000/- together 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, within a period of thirty days from the date of its order. In turn, the said amount to be deposited, under a fixed deposit scheme, in a nationalised bank for a period three years. Accordingly ordered. 10.Aggrieved by the said Award and Decree, the appellant/third respondent has filed the above appeal praying to scale down the award and decree passed by the Tribunal. 11.The learned counsel appearing for the appellant/Insurance Company argued that the Tribunal awarded a sum of Rs.2,04,000/- under the head of loss of income, due to the 26% disability, after adopting multiplier method, which is erroneous. Further, the learned counsel argued that the compensation under the various heads are also on higher side. Therefore, he prays before this Court to scale down the compensation amount awarded by the Tribunal. The learned counsel for the appellant in support of his appeal has cited the following Judgments made in 2005(1) CTC 38, United India Insurance Company Ltd. v. Veluchamy, the relevant head notes of which are as follows: "Motor Vehicles Act, 1988, Second Schedule, Clause 5 – Compensation in case of disability arising in non-fatal accidents – In case of permanent or partial disablement Court can arrive at amount payable by multiplying annual loss of income by multiplier applicable to age on date of determining compensation – Proper multiplier is prescribed in Clause 1 of II Schedule – percentage of permanent total disablement or permanent partial disablement arising out of injuries has to be arrived at as per Schedule I under Workmen's Compensation Act, 1923 – However Court should not mechanically apply multiplier method to ascertain future loss of income on earing power in all non-fatal accident cases – Compensation depends upon factors like nature and extent of disablement avocation of injured and manner in which disablement would affect employment or earning power of injured – Multiplier method provided under II Schedule to Motor Vehicle Act, 1988 could be adopted if injured lost his employment or avocation completely and has to be idle till rest of his left and in such cases also same period as applicable to fatal cases need not be https://hcservices.ecourts.gov.in/hcservices/ adopted – Lesser period may be adopted if no amputation – Claimant held valid driving licence and owned Van and claimed to earn Rs.10,000/- per month – No evidence was adduced to prove earning – Claimant did not suffer amputation of limbs and even though percentage of disability was 49% and one leg was shorter than other leg – Earning could be fixed at Rs.5,000 per month and claimant being van driver would have spent Rs.1,500 on himself – Claimant's capacity to earn not totally taken away and could still hire some drivers and earn – Contribution to family would have been Rs.3,500 per month and multiplier of 12 would meet ends of justice. Law of Damages – Award of Compensation in cases of non-fatal cases – Principles governing – Courts should approach issue of awarding damages on larger perspective of justice, equity and good conscience and eschew technicalities in decision making – Right to possession one's own body is primary human right and right to own and possess all other materials are but extension of primary right – Bodily injury should therefore be visited with damages and it depend on (a) loss of earnings and earning capacity (b) expenses incurred or to be incurred to pay others for what otherwise he would do for himself and (c) loss or diminution in full pleasures and joys of living – Compensation in cases of bodily injuries should be substantial and not merely token – Court should award such sums of money as will put injured in same as he would have been in if he had not sustained injuries – Exact pecuniary assessment is not feasible as no compensation can renew physical frame that has been battered and shattered – Compensation is under broad heads of pain and suffering, loss of amenities, shortened expectation of life, loss of earnings or earning capacity or both, expenses incurred in medical treatment and special damages if any – Damages is towards loss sustained as a result of physical injury and not injury itself. Law of Damages – Loss of earning or earning capacity – Compensation of – Person who is disabled to do work which he was doing prior to accident is entitled to claim total loss if he lacks talent, skill, experience or training for https://hcservices.ecourts.gov.in/hcservices/ anything else – Court must evaluate evidence and probabilities in such case and form opinion of nature and extent of loss – Court should assess what claimant would have earned but for accident and while doing so take into account future increase or decrease in rate of earnings – Nature of disablement whether permanent, temporary, partial or total should be considered – Court should also estimate earning that claimant could make despite injuries sustained by him – Factors like future promotions, increments, revisions of pay falling in domain of imponderables should be borne in mind." 12.The learned counsel for the first respondent/ claimant argued that the claimant's age was 20 years at the time of the accident and he had sustained bone fracture injuries. Further, he was a sportsman and also he received Interview Calling Letter for selection of Police Constable. But, due the accident he is unable to attend the same and becoming disabled. As such, the Tribunal adopted a multiplier method and awarded the compensation, which is fair and equitable. Therefore, he prays before this Court to dismiss the appeal filed by the appellant. 13.Considering the facts and circumstances of the case, the arguments advanced by the learned counsel appearing on either side and the award and decree passed by the Tribunal, this Court is of the view that the multiplier method adopted by the Tribunal is erroneous as per the Judgment cited by the learned counsel appearing for the appellant/Insurance Company. Hence, this Court to break up the compensation as follows: i. The Tribunal awarded a sum of 2,04,000/-under the head of loss of income, due to the 26% disability, after adopting multiplier method, This Court reduces it to Rs.52,000/-, as it is pertinent, ii. The Tribunal awarded a sum of Rs.20,000/- under the head of medical expenses, this Court confirms the same as it is pertinent, iii. The Tribunal awarded a sum of Rs.5,000/- under the head of transport expenses and nutrition, this Court awards Rs.15,000/- each under the head of transport expenses and nutrition, iv. The Tribunal awarded a sum of Rs.5,000/- under the head of pain and suffering, this Court enhances it to Rs.25,000/- as it is pertinent, https://hcservices.ecourts.gov.in/hcservices/ v. This Court awards a sum of Rs.9,000/- under the head of attender charges, vi. Permanent disability to his left toe, due to the removal of muscles, thereby he is unable to standing on the ground, for which, this Court awards a sum of Rs.50,000/-, In total, this Court awards a compensation of Rs.1,86,000/- together 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. Therefore, this Court hereby reduces the Tribunal compensation amount of Rs.2,70,000/- to Rs.1,86,000/-, which is fair and equitable. 14.On 01.02.2008, this Court directed the appellant/third respondent to deposit the entire compensation amount, into the credit of the M.C.O.P.No.122 of 2005, on the file of the Motor Accident Claims Tribunal, Sub-Ordinate Court, Udumalpet. 15.It is open to the first respondent/claimant to withdraw the entire compensation amount, awarded by this Court, with accrued interest thereon and costs, lying in the credit of the M.C.O.P.No.122 of 2005, on the file of the Motor Accident Claims Tribunal, Sub-Ordinate Court, Udumalpet, by making proper payment out application, subject to the deduction of withdrawals, if any, in accordance with law. Likewise, the appellant Insurance Company is at liberty to withdraw the excess compensation amount with accrued interest, lying in the credit of the M.C.O.P.No.122 of 2005, on the file of the Motor Accident Claims Tribunal, Sub-Ordinate Court, Udumalpet, after observing necessary formalities of the Court below. 16.In the result, this Civil Miscellaneous Appeal is partly allowed and the Award and Decree, dated 12.03.2007, made in M.C.O.P.No.122 of 2005, on the file of the Motor Accident Claims Tribunal, Sub-Ordinate Court, Udumalpet is modified. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. krk https://hcservices.ecourts.gov.in/hcservices/ To 1.The Motor Accident Claims Tribunal, Sub-Ordinate Court, Udumalpet. 2. The Section Officer, VR Section, High Court, Madras. 1 cc to mr.C. Veeraraghavan, Advocate, Sr. 72972 1 cc to Mr. M.B. Gopalan, Advocate, Sr. 73883 C.M.A.No.299 of 2008 MRD (CO) kk 9/11 https://hcservices.ecourts.gov.in/hcservices/