IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:24.11. 2008 CORAM:- Hon'ble Mr. Justice R. SUDHAKAR C.M.A.Nos.722 and 723 of 2008 and M.P.Nos.1 and 1 of 2008 1. The Inspector of Police(Crime) C.I.D.,Chennai. 2. The Inspector of Police, Manavalanagar, Tiruvellore .. Appellants in both C.M.As./Respondents 1 & 2 Vs. 1. R.Viswanathan 2. L.Kannan .. Respondents in CMA 722/08/Claimant & Respondent-3 1. Vatsala 2. Thulasidas 3. L.Kannan .. Respondents in CMA 723/08/Claimants & Respondent-3 . . . Appeals filed under Section 173 of the M.V.Act against the award and decree dated 06.01.2005 in MCOP Nos. 654 and 655 of 2003 on the file of Motor Accidents Claims Tribunal, ( Sub court) Tiruvellore. . . . For Appellants in both CMAs : Mr.R.Muthiah, G.A.(C.S) For respondents in C.M.A.722/08 : Mr.A.S.Vijay Anand for Mr.G.Karthikeyan (R1) Mr.M.Venkateswaran (R2) https://hcservices.ecourts.gov.in/hcservices/ For respondents in C.M.A.723/08 : Mr.A.S.Vijay Anand for Mr.G.Karthikeyan (R1) Mr.M.Venkateswaran (R3) No appearance for R2) . . . JUDGMENT The Inspector of Police, (Crime) C.I.D.,Chennai has filed these appeals challenging the award dated 06.01.2005 in MCOP Nos. 654 and 655 of 2003 on the Motor Accidents Claims Tribunal, ( Sub court) Tiruvellore. 2. It is a case of injury. The accident, in this case happened on 21.07.2003. The injured claimant Subbiah and his friend Ethiraj were travelling on a motor cycle. The said motor cycle was hit by a Police Jeep bearing registration No.T.N.07 G 1327. In that accident, the driver of the motor cycle, Viswanathan, suffered grievous injuries and the pillion rider, Ethiraj died. 3. A claim petition in M.C.O.P.No.654 of 2003 was filed by the injured Viswanathan claiming compensation for the injury sustained by him in the accident for a sum of Rs.4,00,000/-. On the death of Ethiraj, aged 25 years, the parents of the deceased filed a claim petition in M.C.O.P.No.655 of 2003 claiming compensation in a sum of Ras.5,00,000/- Both the cases were tried together and a common award was passed by the Tribunal. These two appeals were filed against the said common award. 4. The only contention raised by the learned counsel for the appellants is that the quantum of compensation in both the cases is on the higher side and the same has to be modified and reduced. Learned counsel for the respondents/claimants, on the other hand, stated that the compensation awarded in both the cases by the Tribunal is just and reasonable and does not require any reduction and the same should be confirmed as also the interest of 9%. 5. The injured claimant was examined as P.W.1 and Dr.Thiagarajan was examined as P.W.2 and one Thulasidas, the father of the deceased Ethiraj was examined as P.W.3. Documents were marked as Exs.P.1 to P.16. Ex.P.1 is the copy of the First Information Report. Ex.P.2 is the copy of the Notice sent to the respondents. Ex.P.3 is the postal receipt. Ex.P.4 is the acknowledgment. Ex.P.5 is the reply notice. Ex.P.6 to P.8 are the https://hcservices.ecourts.gov.in/hcservices/ medical discharge Certificates. Ex.P.9 is the Doctor's note. Ex.P.10 is the E.S.I Card. Ex.P.11 is the Diploma in tailoring course Certificate. Ex.P.12 is the medical bills. Ex.P.13 is the Certificate issued by the Ramachandra Hospital. Ex.P.14 is the Disability Certificate. Ex.P.15 is the Post Mortem Certificate. Ex.P.16 is the Death Report. 6. C.M.A.NO.722 of 2008 in M.C.O.P.NO.654 of 2003: In this case, the accident happened on 21.07.2003. The injured claimant Viswanathan is a tailor and he claimed that he was earning Rs.6,000/- per month and supported it by marking Exs.P.10 and P.11. Ex.P.10 is the E.S.I Card and Ex.P.11 is a Diploma Certificate for having undergone the course in tailoring. The injured Viswanathan, suffered the following injuries in the accident: "1. Fracture and dislocation in pelvic bone. 2. Fracture in right wrist distal and radial bone 3. Undisplaced fracture in right side of left frontal bone" He was treated as in patient at Sri Ramachandra Hospital, Porur from 21.7.2003 to 11.08.2008 and then again from 03.09.2003 to 08.09.2003 as in patient. From the evidence of Doctor, who was examined as P.W.2, it is clear that the injured claimant suffered fracture and dislocation of pelvic bone, fracture of right wrist and distal and radial bone and undisplaced fracture of left frontal bone. The doctor opined that the injured claimant, a tailor, will not be able to make his living as a tailor as before and his earning capacity will be affected. In this case, considering the nature of the injury, the period of treatment, the disability assessed at 70% in Ex.P.14, and holding that the claimant a tailor by profession cannot work and earn as before, the Tribunal granted Rs.70,000/- for disability and a sum of Rs.50,000/- towards loss of earning capacity. The Tribunal also granted amounts on conventional heads as follows with 9% interest. Sl.No. Head Amount granted by the Tribunal 1 Permanent disability Rs. 70,000/- 2 Loss of earning capacity Rs. 50,000/- 3 Pain and suffering Rs. 40,000/- 4 Medical expenses Rs. 35,000/- 5 Transport expenses Rs, 2,500/- 5 Extra nourishment Rs. 2,500/- Total Rs. 2,00,000/- https://hcservices.ecourts.gov.in/hcservices/ 7. The Tribunal granted amount under the head of disability and also under the head of loss of earning capacity. The Full Bench in the case of Cholan Roadways Corporation Ltd. -v.- Ahmed Thambi and others reported in (2006(4) CTC 433) held that if compensation is granted for the loss of earning capacity, compensation need not be granted separately for disability. The relevant portion reads as follows: "In the non-pecuniary losses the Tribunal shall consider: (a) pain and suffering, (b) loss of amenity, (c) loss of expectation of life, hardship, mental stress etc. (d) loss of prospect of marriage and under the head pecuniary losses, the Tribunal shall consider loss of earning capacity and loss of future earnings as one component apart from medical and other expenses and loss of earning, if any from the date of accident till the date of trial. When loss of earning capacity is compensated as also the non- pecuniary losses under (a) to (d), permanent disability need not be separately itemised." Therefore, the Tribunal should have granted compensation either for permanent disability or under the head of loss of earning capacity. Therefore, the compensation granted by the Tribunal under both the heads cannot be justified. 8. Due to the prolonged treatment and grievous injuries suffered, and the disability assessed at 70%, the claimant's earning capacity will be affected. This is because the fracture is on the hip region, wrist and grievous injuries to the head. The compensation can be granted based on the multiplier method. However, in this case, lesser multiplier will have to be taken as the possibility of the injured claimant seeking other source of income after the injury and treatment has to be considered. Therefore, the compensation both under the head of disability and loss of earning capacity stands set aside. The claimant, however, will be entitled to suitable compensation for disability assessed at 70%. 9. A Division Bench of this Court in United India Insurance Co. ltd., VS Veluchamy and another reported in 2005 A.C.J.1483 has set out parameters under which compensation can be granted by adopting multiplier method. Para 11 of the decision is as follows: "11. The following principles emerge from the above discussion: https://hcservices.ecourts.gov.in/hcservices/ (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." Therefore, award in so far as the disability and earning capacity is modified in view of the evidence of the Doctor, who has spoken that the injured claimant, a tailor by profession, has suffered grievous injuries and due to the dislocation of the pelvic bone, he cannot earn as before. Further in view of the decision of a Division Bench in the case of United India Insurance Co. Ltd., - vs. - Veluchamy and another reported in 2005 ACJ 1483 (cited supra) the quantum of compensation for loss of earning capacity will be Rs.3,500 X 12 X 70/100 X 5 = Rs.1,47,000/- The claimant is entitled to Rs.35,000/- towards medical expenses, Rs.10,000/- for pain and suffering , for loss of income during the period of treatment, Rs.8,000/- In all, the claimant is entitled to Rs.2,00,000/- as mentioned below: https://hcservices.ecourts.gov.in/hcservices/ Sl.No. Head Amount granted by this court 1 Loss of earning capacity due to disability Rs. 1,47,000/- 2 Pain and suffering Rs. 10,000/- 3 Loss of earning during the period of treatment Rs. 8,000/- 4 Medical expenses Rs. 35,000/- Total Rs. 2,00,000/- Therefore, the quantum of compensation determined by the Tribunal is justified and confirmed. 10. C.M.A.No.723 of 2008 in M.C.O.P.No.655 of 2003: The deceased in this case-Ethiraj is 25 years old and a self employed person. The father aged 55 years and mother aged 47 years filed a claim petition for compensation in a sum of Rs.5,00,000/- The income of the deceased was claimed as Rs.6,000/- per month. 11. In support of the claim, the father of the deceased was examined as P.W.3. The Tribunal fixed the income of the deceased at Rs.2,000/- per month and Rs.24,000/- per year, of which 1/3 has been deducted towards personal expenses of the deceased and loss of pecuniary benefits was fixed by adopting multiplier 13. The compensation granted is as follows: Rs.2,000/- X12 =Rs.24,000/- (–) Rs.8,000/- =Rs.16,000/- X 13 = Rs.2,08,000/- A sum of Rs.25,000/- was awarded towards loss to the Estate and Rs.20,000/- towards shock and mental agony. Further a sum of Rs.20,000/- towards loss of happiness and Rs.25,000/- for loss of love and affection were granted. A sum of Rs.5,000/- was granted towards funeral expenses. In all the Tribunal granted a sum of Rs.3,03,000/- in the following manner with interest at 9% Sl.No. Head Amount granted by the Tribunal 1 Pecuniary loss Rs. 2,08,000/- 2. Loss to the estate Rs. 25,000/- 3. Shock and mental agony Rs. 20,000/- 4 Loss of happiness Rs. 20,000/- 5 Loss of love and affection Rs, 25,000/- 6 Funeral expenses Rs. 5,000/- Total Rs. 3,03,000/- https://hcservices.ecourts.gov.in/hcservices/ 12. The claimants were granted Rs.25,000/-towards loss of love and affection on the death of their son. Therefore, the sum of Rs.20,000/- for loss of happiness and a sum of Rs.25,000/- for loss to the Estate cannot be justified and is exaggerated. The various heads on which the award is passed does not stand to reason. The award has to be suitably modified. 13. The accident in this case happened on 21.7.2003 and the deceased Ethiraj aged 25 years old, self-employed, his income is unreasonably fixed at Rs.2,000/- p.m. And it is too low. In view of the two decisions, B.Anandhi – vs. - Latha reported in 2002 ACJ 233 and State of Haryana and another – vs. - Jasbir Kaur and others reported in 2004-1 Law Weekly, the income of the deceased should have been fixed higher instead of Rs.2,000/-. The Tribunal has adopted 13 multiplier. Whereas in the case of bachelor earning member, the multiplier will be 12. If the income of the deceased is taken as Rs.3,000/- per month and Rs.1,000/- is deducted towards personal expenses, pecuniary loss per annum will be Rs.24,000/-, and by adopting 12 multiplier, the total compensation will be Rs.2,88,000/- towards pecuniary loss. The claimants will be entitled to compensation loss of happiness on the death of their son, transport expenses and funeral expenses. Therefore, the balance over and above Rs.2,88,000/- is only Rs.15,000/- which can be adjusted on various heads applicable. Therefore, the quantum of compensation does not require further reduction. 14. The compensation in both the cases, therefore, is adjusted on one or other heads and the total amount is justified. 15. As far as the interest is concerned, since the accident in this case happened in the year 2003 and the award was passed in 2006, the interest is modified to Rs.7.5%, following the decision of the Apex Court in the case of T.N. State Transport Corporation Ltd. - v. S.Rajapriya, reported in 2005(6) SCC 236. The rate of interest is reduced to 7.5 % from 9%.. 16. In the result, the Civil Miscellaneous Appeals are allowed to the extent stated. i) The awards of the Tribunal is confirmed. ii) The interest is reduced to 7.5% instead of 9% iii) It is stated by the leaned counsel for the appellant that in pursuant to the conditional order dated 29.02.2008, the entire amount has been deposited. The claimant is entitled to withdraw the award amount as per the order of this Court and the appellant is entitled to withdraw the excess amount in deposit with allowed https://hcservices.ecourts.gov.in/hcservices/ interest after settling the claimants. iv. No costs. v. The miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar PAL To The Subordinate Judge, The Motor Accidents Claims Tribunal, Tiruvellore. +2ccs to Mr.M.Venkateswaran, Advocate Sr 65919,65920 +1cc to Mr.G.Karthikeyan, Advocate Sr 65612 CK(CO) km/22.1. CMA Nos.722 & 723 of 2008 https://hcservices.ecourts.gov.in/hcservices/