IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.8.2010 CORAM: THE HONOURABLE MR.JUSTICE B.RAJENDRAN C.M.A.No. 397 of 2007 and M.P.No.1 of 2007 Manager, United India Insurance Co. Ltd., No.146-N, Kumar Complex, Thiruchencode, Namakkal. .. Appellant Vs. 1.M.Kumar, S/o.Muthusamy rep.by mother and Next Friend Chinnammal. 2.J.P.S.Enterprises (2nd respondent ex parte before Lower Court and hence notice may be dispensed with) .. Respondents Civil Miscellaneous Appeal filed against the Award and decree dated 19.7.2006 made in M.C.O.P.No.1528 of 2004, on the file of Motor Accidents Claims Tribunal, Additional District Court, Fast Track Court No.3, Namakkal. For appellant : Mr.N.Vijayaraghavan For respondents: : Mr.A.P.Thangavel for R1 : R2-exparte JUDGMENT This appeal has been filed by the Insurance Company as against the grant of an award of Rs.11,20,000/- in respect of an injury caused to the appellant in the road accident. The accident is admitted and the liability is admitted and only the quantum is disputed by the appellant/Insurance Company. Even in the quantum, the only ground of attack was the multiplier method adopted in a case of injury. 2. The first respondent/claimant would contend that he sustained serious head injury and other multiple injuries in the road accident. Pursuant to the injury caused in the accident, he was originally admitted in the Government hospital, Namakkal and then he was shifted to Mohan Kumaramangalam hospital, Salem and then he was shifted to A.G. Neuro hospital, Salem from there he was shifted to K.G.Hospital, Coimbatore. As per C.T.Scan report for the left Tempero parietal acute EDH, a surgery was done. CT Scan was repeated which reveals certain infirmities and therefore the second surgery was done. He was admitted as an inpatient in Salem hospital from 12.6.2004 to 24.6.2004 and he continued the treatment. He was unable to speak, answer the questions and there was loss of memory disturbance and hence he is unable to work. In fact, he would also contend that P.W.3 the employer had categorically stated that he was employed as a medical representative. Therefore, he has lost the earning power totally because of the injury caused and loss of memory and loss of his total capability even to answer. Therefore, even though the doctor has given 85% disability, he must have fixed 100% disability. Considering the nature of injuries sustained, the Court below was right in granting the compensation under the multiplier method. The Supreme Court has also categorically stated that in exceptional cases, multiplier method can be adopted. The doctor himself proved that due to the accident, the claimant was unable to walk and he could not do his work as before and due to the accident he lost his total earning capacity. Therefore, the Court below is justified in granting compensation by adopting the multiplier method. 3. Heard the learned counsel for the appellant-Insurance Company and the learned counsel for the first respondents/claimant and perused the records. 4. On a careful consideration of the evidence let in by the claimants and the documents produced, the short point for consideration in this appeal is whether the quantum awarded by the Court below was reasonable or excessive? 5. The accident is admitted. The age of the person is admitted and the liability is also admitted. 6. The injury caused to the claimant is evident from the wound certificate issued by the K.G.Hospital, Coimbatore. In the wound certificate it is stated that the claimant sustained contusion over right frontal region, Right black eye plus, Right nasal bleed plus, Swelling deformity and tenderness over right distal end of forearm and there was a fracture on the left occipital and left temporal craniectomy. As per the C.T.Scan, the brain shows persistant hemorrhage contusion of right frontal, left occipital and left subcortical frontal region and left temporo-parietal EDH, besides fracture of frontal bone on right side. According to the doctor evidence, the claimant was operated on the left temporo-parietal craniotomy and evacuation of EDH. The second surgery was done on 7.9.2004 for cranioplasty to cover the bony defect. The CT Scan was repeatedly done on various occasions. According to the Doctor, the claimant was suffering from blood clot in the brain which was removed by operation and the functioning of the brain has been reduced and he has got severe headache and giddiness. The claimant also suffer insomnia, memory disturbance, abnormal behaviour and unable to answer and not able to concentrate in work and therefore, he has certified 85% disability. 7. Before the Court below, the claimant was not examined and the mother alone was examined at that point of time, who stated that the claimant is unable to answer the question and hence she was permitted to examine on behalf of the petitioner. 8. During the pendency of this appeal, the respondent's counsel made a representation that medical check up could be done as on date. Therefore, this Court directed the claimant to be examined by a Senior Civil Surgeon and pursuant to the direction, the Doctor S.Mathivanan who had already given evidence in this case, has given a certificate which is produced before this Court wherein he has stated that he examined the claimant on 23.8.2010 and found that he is still suffering from the Posthead injury of memory disturbance and abnormal behaviour. He would also certify that he cannot answer the questions properly, he cannot be interrogated and at present his disability is 65%. Therefore, taking into consideration that even as on date, the claimant was suffering from memory disturbance and abnormal behaviour, it is to be seen whether the Court below is justified in granting the compensation. 9. This is an exceptional case where the injured person is not able to work at all or he is unable to answer the question. Though the disability of the claimant presently has reduced to 65%, the argument of the counsel for the appellant that there cannot be a blanket order in so far as the lower Court applying the multiplier theory cannot be accepted as the Supreme Court has also stated wherever in exceptional cases when there is a loss of earning power of the disability assessed is more than 75%, the Court can apply the multiplier theory. Further the age of the injured has to be taken into consideration. Here, the injured was 19 years at the time of accident and he is unable to move. In fact mother of the claimant, P.W.1 has categorically stated that her son was always in giddiness and he is in bed continuously, he is her only son and it is not possible for him even either to work or to get married and his future prospects is totally lost. 10. Taking into consideration the extraordinary circumstances of this case, this Court feels that even though it is a case of injury, the future prospects of the claimant is totally lost and the earning power is almost nil. Therefore, there is nothing wrong in the Court below adopting the multiplier theory. The Court below relying upon Ex.A17, pay certificate issued by the owner of Namakkal Surgicals found that injured claimant was working and fixed the salary at Rs.5,000/-, whereas the salary certificate issued was Rs.6,501/-. As far as the multiplier is concerned, taking into consideration of the age, the multiplier '15' was adopted which is also correct. Unfortunately, the Court below has not reduced the disability from 85% and taken the entire percentage of disability. The Doctor has given the disability under various heads ranging from insomnia and other things and the present disability which is given as 65%, therefore at least 75% disability could have been taken and 25% could be reduced which has not been done by the Court below. Therefore, adopting the multiplier method by reducing the disability to 75% (ie)1/4th of Rs.9,00,000/- = Rs.6,75,000/-. Thus, the compensation will be reduced from Rs.9,00,000/- under the heading loss of earning to Rs.6,75,000/-. 11. As far as the medical expenses is concerned, the lower Court has awarded Rs.1,50,000/- and a sum of Rs.20,000/- towards pain and suffering which are very reasonable and the same are confirmed. The Court below has also granted a sum of Rs.25,000/- towards extra nourishment and transport expenses which is also reasonable and the same is confirmed. But another sum of Rs.25,000/- has been given by the Tribunal for future marriage prospects and loss of earning. When the multiplier theory is adopted, as per the Full Bench decision of this Court, the further amount under the said head cannot be granted. Therefore, the amount of Rs.25,000/- is set aside. Therefore the award amount is modified from Rs.11,20,000/- to Rs.8,70,000/- under the following heads. Towards the loss of earning - Rs.6,75,000/- Towards the Medical expenses - Rs.1,50,000/- Towards pain and suffering - Rs. 20,000/- Towards the transport to hospital Extra nourishment - Rs. 25,000/- ------------ Total Rs.8,70,000/- -------------- 12. Hence, the appeal is allowed in part reducing the compensation amount from Rs.11,20,000/- to Rs.8,70,000/- with interest at the rate of 7.5% from the date of petition till the date of deposit. It is brought to the notice of this Court that the appellant/Insurance Company has already deposited the entire award amount as directed by the Court below. The excess amount is permitted to withdrawn by the Insurance Company and the respondent/claimant is permitted to withdraw the amount, as determined by this Court in this appeal. No costs. Consequently, connected Miscellaneous Petition is closed. 25.8.2010 Index: Yes/no Internet: Yes/no To 1. Motor Accidents Claims Tribunal Additional District Court, Fast Track Court No.3, Namakkal. 2. The Record Keeper, V.R. Section, High Court, Madras. B.RAJENDRAN,J aes C.M.A.No.397 of 2007 25.8.2010