IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 17.11.2008 CORAM: THE HONOURABLE Mr.JUSTICE R.SUDHAKAR C.M.A.No.3463 of 2008 and M.P.No.1 of 2008 The New India Assurance Company Ltd., Sooriya Towers, S.P.Road, Secunderabad. ... Appellant/2nd respondent Vs. 1.S.Athiyannan 2.D.Thirupathy Reddy 3.Sampooranam 4.The National Insurance Company Ltd., Branch Office, 1631/1-B, First Floor, Salem-Bhavani Main Road, Sankari-637 301. (Respondents 2 and 3 are set ex-parte in the Lower Court) ... Respondents/ Claimant & respondents 1,3 & 4 Prayer:- Appeal is filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and decree dated 25.04.2008 passed in M.A.C.T.O.P.No.412 of 2006 by the learned Subordinate Judge, Motor Accidents Claims Tribunal, Sankagiri. For Appellant : Mr.K.S.Narasimhan For Respondents : Mr.C.Kulanthaivel for Caveator JUDGMENT The Insurance Company has filed this appeal against the judgment and decree dated 25.04.2008 passed in M.A.C.T.O.P.No.412 of 2006 by the learned Subordinate Judge, Motor Accidents Claims Tribunal, Sankagiri. 2.This is a case of injury. The accident in this case happened on 08.09.2006. The injured/claimant Anthiannan, was travelling as a second driver in a lorry bearing Registration No.KA.01.AC.8899 insured with M/s. National Insurance Company. A lorry bearing Registration No.AP.11.X.2525, which was insured with the present appellant, driven by its driver in a rash and negligent manner, hit the first lorry bearing Registration No.KA.01.AC.8899, in which the injured/claimant was travelling. In that accident, the injured/claimant suffered the following injuries:- https://hcservices.ecourts.gov.in/hcservices/ "1.Left Knee: Transverse sutured wound over the popliteal fosa present mid thigh to mid calf. 2.Left leg/foot swollen. 3.Abrasion present dorsum on left great toe. 4.Right knee:abrasion over the antero medical aspect of the knee." 3.The claimant was initially treated at H.M.S.W. Government Hospital in Andra Pradesh and thereafter Ganga Hospital at Coimbatore. For the injury suffered by him, he claimed compensation in a sum of Rs.6,00,000/- stating that his income is Rs.10,000/- per month. In the absence of specific material to support the plea on income, the Tribunal fixed the income of the injured/claimant at Rs.4,000/- per month. 4.In support of the claim petition, the claimant himself was examined as P.W.1 and one Dr.Krishnasamy was examined as P.W.2. Exs.A.1 to 16 were marked. Exs.A.1 and A.2 are the First Information Report, Ex.A.3 is the Accident Register, Ex.A.4 is the Insurance policy copy, Ex.A.5 is the Insurance policy copy in respect of lorry bearing Registration No.K.A.01.AC.8899, Ex.A.6 is the photocopy of the Driving License of the claimant, Ex.A.7 is the Wound certificate, Ex.A.8 is the Discharge summary, Ex.A.9 is the medical bills, Ex.A.10 is the photograph, Ex.A.11 is the Medical bills, Ex.A.12 is the X- ray, Ex.A.13 is the Registration Certificate in respect of lorry bearing Registration No.A.P.11.X.2525, Ex.A.14 is the Disability Certificate, Ex.A.15 is the X-ray and Ex.A.16 is the receipt for the payment of X-ray. On behalf of the appellant/respondent before the Tribunal, no witness was examined and no document was marked. 5.The disability in this case is assessed at 39% by the Doctor P.W.2. The Tribunal however, fixed the disability at 30%. The Tribunal also fixed the monthly income of the injured/claimant at Rs.4,000/- and the annual income at Rs.48,000/- and by adopting 15 multiplier granted a sum of Rs.2,16,000/- (Rs.4,000/- x 12 = 48,000 x 15 x 30/100 = 2,16,000/-) for loss of income due to disability. The Tribunal came to the conclusion that due to the injury in the left leg and the right knee, the injured/claimant cannot work as a heavy lorry driver as before and therefore, his earning capacity is very much affected and granted the following amount as compensation:- Future loss of income : Rs.2,16,000/- For pain and sufferings : Rs. 10,000/- For extra nourishment : Rs. 5,000/- For transportation to hospital : Rs. 3,000/- For discomfort : Rs. 5,000/- Loss of earning : Rs. 12,000/- Future medical expenses : Rs. 10,000/- The actual medical expenses : Rs. 85,000/- _____________ Total : Rs.3,46,000/- _____________ https://hcservices.ecourts.gov.in/hcservices/ Totally, the Tribunal awarded a sum of Rs.3,46,000/- with interest at 7.5% per annum. 6.The learned counsel for the appellant relied on a Division Bench judgment reported in " 2005(1) CTC 38 " (UNITED INDIA INSURANCE COMPANY LTD., ..VS.. V.VELUCHAMY AND ANOTHER)", in which Paragraph No.11 reads as follows: "11. The following principles emerge from the above discussion: (a) In all case 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 till the rest of his life, in that event loss of income or earning may be ascertained by applying "mutiplier method" as provided under Second Schedule to the Motor Vehicles Act, 1988. (2) Even if 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." 7.According to the learned counsel for the appellant, the Tribunal erred in adopting 15 multiplier in this case of injury. He stated that the quantum of compensation in this case cannot be the same as that of a fatal accident case. Therefore, lessor multiplier should be taken. However, he fairly submitted that the claimant will be entitled to reasonable enhancement in so far as pain and sufferings, extra nourishment, transportation etc., as claimed by the learned counsel for the claimant. 8.The record produced by the claimant in support of the claim petition shows that the injury suffered by the claimant is on the left knee, left leg and right knee and the evidence of the Doctor is that his movement is affected and therefore, he will not be able to https://hcservices.ecourts.gov.in/hcservices/ work effectively as a heavy vehicle lorry driver. However, his earning capacity will not be lost entirely. Keeping the parameters of the decision of the V.VELUCHAMY's case as above in mind, a lessor multiplier of 10 can be adopted in the case of this nature. The income of the injured/claimant at Rs.4,000/- is not in dispute. Accordingly, the total compensation for loss of earning capacity due to disability will be Rs.4,000 x 12 = 48,000 x 10 x 30 / 100 = 1,44,000/-. A sum of Rs.12,000/- granted for loss of income during the period of treatment is confirmed. For actual medical expenses Rs.85,000/- was granted and that is also confirmed. For pain and sufferings undergone, considering the nature of the injury and the period of treatment, a sum of Rs.30,000/- is grated as against Rs.10,000/- granted by the Tribunal. For extra nourishment as against Rs.5,000/- granted by the Tribunal another Rs.5,000/- (Rs.5,000/- + Rs.5,000/- = Rs.10,000/-) is granted. For discomfort Rs.5,000/- granted by the Tribunal stands confirmed. For transport expenses Rs.5,000/- is granted as against Rs.3,000/- granted by the Tribunal and for attender charges Rs.5,000/- is granted. Future medical expenses for removing of plates and for physiotherapy etc., Rs.20,000/- is granted as against Rs.10,000/- granted by the Tribunal. It is made clear that the future medical expenses at Rs.20,000/- will not be eligible for any interest. Totally, a sum of Rs.3,16,000/- is granted as compensation. 9.Accordingly, the compensation granted by the Tribunal is modified as follows:- Sl.N o. Head Amount granted by the Tribunal Amount granted by this Court 1 Future loss of income Rs.2,16,000/- Rs.1,44,000 2 For pain and sufferings Rs. 10,000/- Rs. 30,000/- 3 For extra nourishment Rs. 5,000/- Rs. 10,000/- 4 For transportation to hospital Rs. 3,000/- Rs. 5,000/- 5 For discomfort Rs. 5,000/- Rs. 5,000/- 6 Loss of income during the period of treatment Rs. 12,000/- Rs. 12,000/- 7 For future medical expenses Rs. 10,000/- Rs. 20,000/- 8 The actual medical expenses Rs. 85,000/- Rs. 85,000/- 9 Attender charges - - - Rs. 5,000/- Total Rs.3,46,000/- Rs. 3,16,000/- Since the accident in this case happened in the year 2006 and the award was passed on 25.04.2008, the interest grated by the Tribunal at 7.5% per annum stands confirmed. 10.The learned counsel for the appellant seeks eight weeks time to deposit the modified award amount and the same is granted. On such deposit, the claimant is permitted to withdraw the same. https://hcservices.ecourts.gov.in/hcservices/ 11.In the result, this civil miscellaneous appeal is allowed as follows:- i) The award of the Tribunal is reduced to Rs.3,16,000/- from Rs.3,46,000/-. ii) The award as per order of this Court shall carry interest at 7.5% p.a. as granted by the Tribunal. iii)Consequently, the connected miscellaneous petition is closed. iv) There shall be no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Jrl To The Subordinate Judge, Motor Accidents Claims Tribunal, Sankagiri. 1 CC To Mr.K.S.Narasimhan, Advocate, SR NO.63947 1 CC To Mr.C.Kulanthaivel, Advocate, SR NO.63936 C.M.A.No.3463 of 2008 vsv(co) pmk/12.1.2009. https://hcservices.ecourts.gov.in/hcservices/