IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 18.11.2011 C O R A M THE HONOURABLE MR. JUSTICE B.RAJENDRAN C.M.A. No. 616 and 849 of 2011 and M.P. Nos. 1 and 2 of 2011 CMA No. 616 of 2011 K. Sankar .. Appellant/Petitioner Versus 1. K. Ranjini 2. The National Insurance Company Ltd No.751, Anna Salai, 2nd Floor Chennai – 600 002 .. Respondents CMA No. 849 of 2011 The National Insurance Company Ltd Motor Third Party Cell No.751, Anna Salai, 2nd Floor Chennai – 600 002 .. Appellant Versus 1. K. Sankar 2. K. Ranjini .. Respondents/Respondents Appeals filed under Section 173 of the Motor Vehicles Act, 1988 against the Judgment and Decree dated 05.08.2010 made in M.A.C.T.O.P. No. 3935 of 2001, on the file of the II Small Causes Court (Motor Accidents Claims Tribunal), Chennai. For Appellant : Mr. N.M. Muthurajan in CMA No. 616/11 Mr. S. Vadivel for in CMA No. 849/11 For Respondents : Mr. S. Vadivel for R2 in CMA NO. 616/11 Mr. N.M. Muthurajan for R1 in CMA No. 849/11 R1 - Exparte in CMA 616/11 and R2- Exparte in CMA 849/11 COMMON JUDGMENT The claimant as well as the Insurance Company have come forward with these appeals aggrieved by the Judgment and Decree dated 05.08.2010 made in M.A.C.T.O.P. No. 3935 of 2001, on the file of the II Small Causes Court (Motor Accidents Claims Tribunal), Chennai. https://hcservices.ecourts.gov.in/hcservices/ 2. The claimant has filed the Claim Petition contending that on 20.07.1998 at about 3.00 am, when he was walking along Anna Salai, near Jones Road Junction, Saidapet, the driver of the Tanker Lorry bearing Registration No. TN – 01-A-1011 drove the vehicle in a rash and negligent manner and rammed against the claimant as well as a stationary autorickshaw. In the impact, the claimant sustained profound loss of vision in right eye, head injury in right fore-head, fracture of the 4th meta carpel bone in right foot, crush injury in right foot and other multiple injuries all over his body. Immediately, he was taken to Government Hospital, Chennai where he was admitted from 20.07.1998 to 21.07.1998 as in-patient. Subsequently, he was referred to Government Ophthalmolic Hospital, Egmore for the injuries sustained by him in his right eye, where he was admitted as out-patient from 25.08.1998 to 16.10.1998. At the time of accident, the claimant was aged 41 years, working as a Master in Drapping and Designing in M/s. K.V. Apparels, Chennai and earning Rs.10,000/- per month as salary. Therefore, for the injuries sustained in the accident, he claimed a sum of Rs.12,00,000/- as compensation. 3, The insurance company resisted the claim petition by filing a counter before the court below. It was contended on behalf of the insurance company that the injuries sustained by the claimant are minor in nature and it does not warrant a huge compensation, as claimed by the claimant in the claim petition. 4. The Court below, on consideration of the rival contentions and on perusal of the oral and documentary evidence, awarded a sum of Rs.2,19,000/- as compensation in favour of the claimant. Aggrieved by the meager compensation amount, the claimant has filed CMA No. 616 of 2011. The insurance company also filed C.M.A.No. 849 of 2011 questioning the correctness of the quantum of compensation awarded by the court below. Since both the appeals arise out of one and the same judgment passed by the Court below, they are taken up together and disposed of by this common judgment. 5. The learned counsel appearing for the claimant would vehemently contend that the claimant sustained grievous injury in the accident which resulted in loss of visioin in his right eye, besides other fracture injuries. The claimant was working as a Master in Drapping and Designing in M/s. K.V. Apparels, Chennai and due to the injuries sustained in his eye, it resulted in loss of his earning capacity, besides it crippled his future adversely. Even though the Court below applied multiplier method, the amount of compensation awarded under various heads are low and unreasonable. Further, inspite of evidence available to prove the income of the claimant under Ex.P7, the court below has taken the income of the claimant at Rs.3,000/-, given 1/3rd deduction towards personal expenses and another 1/3rd deduction on the ground that even after the accident, he could continue his work and awarded only Rs.1,56,000/- towards future loss of income/earning power which is meager. In any event, as against the claim of Rs.12,00,000/- the total amount of Rs.1,56,000/- awarded by the court below is not in consonance with the nature and extent of injuries sustained by the claimant and he prayed for enhancement. https://hcservices.ecourts.gov.in/hcservices/ 6. Per contra, the learned counsel appearing for the insurance company would contend that at the time when the claimant was admitted in Government hospital for the injuries sustained by him in the accident, he has not complained of any eye injury, but only subsequently, he is said to have suffered eye injury and referred to Government Ophthalmic Hospital. Further, the Doctor, who assessed the disability of the claimant was not the one who treated him, but he had stated that the claimant has vision in his right eye only to the extent of 1/60. In any event, the Court below treated the injury sustained by the claimant as loss of vision and awarded multiplier method, in a case of injury, which is legally impermissible. The amount of Rs.2,19,000/- awarded in favour of the claimant is exorbitant when he has not suffered any functional disability and he prayed for setting aside the award passed by the Court below. 7. I heard the counsel for both sides and perused the materials available on record. The learned counsel for the insurance company would mainly contend that the Court below, in a case of injury, adopted multiplier method and granted a huge sum of Rs.1,56,000/- towards future loss of income/earning power, which is legally impermissible. The Court below found that the claimant had allegedly lost his vision in the right eye, but the Doctor had assessed the disability of the claimant only at 35%. Further, when once the court below awarded Rs.35,000/- towards disability, it ought not to have awarded Rs.1,56,000/- towards loss of future income/earning power which is contrary to the decisions of this Court and therefore, he prayed for setting aside the award passed by the Court below. 8. On perusal of Exs. P3, P4 and P5, Discharge summary and out patient chit issued by Government Hospital, Chennai, it is clear that the claimant taken treatment for the injuries sustained in the road accident only for one day. A perusal of the out patient chit, Ex.P3 would disclose that for the fracture injury in the right foot, the claimant was asked to come the next day. As far as eye injury is concerned, it is not mentioned in Exs. P3 to P5. In Ex.P6, Out- patient chit issued by Government Ophthalmic Hospital, Chennai it is stated under the column "complaint" that the claimant suffered "loss of central field of vision RT following head injury sustained on 20.07.1998 in a RTA. Treated at GH from 20.07.1998 to 21.07.1998". In Ex.P6, it was also noted that the vision loss of the claimant was in the region of 1/60. 9. It was contended on behalf of the insurance company that in the original discharge summary issued by the Government Hospital, Chennai the eye injury was not mentioned and therefore, the complaint regarding injuries in the eye cannot be believed, Such a contention cannot be countenanced in view of the fact that in Ex.P6, it was clearly mentioned that the claimant sustained injuries in his eye and there is no reason to disbelieve the same, which has come into existence at the earliest point of time. Further, Ex.P6 also refers to the treatment given to the claimant at Government Hospital, Chennai on 20.07.1998 to 21.07.1998. Therefore, it is clear that the claimant had sustained injuries in his right eye which resulted in loss of his vision. In fact, an Ophthalmologist was examined on https://hcservices.ecourts.gov.in/hcservices/ behalf of the claimant as PW2, who has stated that he trated the claimant in the Government Ophthalmic Hospital, Chennai. PW2 in his evidence has categorically stated that the claimant suffered injuries in his right eye. He was treated at Government Hospital on 21.07.1998 and then he was treated at Government Ophthalmology Hospital on 25.08.1998. He was given circinate retinopathy treatment, which was subsequently reviewed on 31.08.1998. It was further stated that he verified the medical records and on 09.04.2010 he also examined the claimant by diluting the right eye pupil and found that there is vision in right eye only to the extent of 1/60, meaning thereby, he has almost lost the vision in his right eye. No serious cross-examination of PW2 was done on behalf of the insurance company except to suggest that he has not treated him, which was denied by PW2. 10. When we see the evidence of the claimant himself, in his Chief-examination, he would state as follows:- "5/ ,e;j tpgj;jpy; vdf;F Kd;de;jiyapy; tyJ fz;Qqf;F nky; fhak; Vw;gl;lJ/ ,jdhy; tyJ fz;zpy; ghu;it Fiwt[ Vw;gl;Ls;sJ/ mof;fo tyJ fz;zpy; ePu; tofpwJ/ fz;zpy; fLikahd typ Vw;gLfpwJ/ VjhtJ mjph;r;rpnah. mjpf rj;jnkh Vw;gl;lhy; fz;zpy; typ mjpfkhfpwJ/ 11. In the cross-examination of PW1/claimant, no worthy questions were put to him to disprove his claim with regard to the injury in his right eye. The fact remains that even at the time of admission in the Government Hospital, he suffered vision loss, thereby the claimant had proved that the injuries in his eye, resulting in loss of vision, had affected his earning capacity. Taking into consideration the fact that the claimant had lost his vision in the right eye, especially when the claimant was working as a Master Drapping and Designing in M/s. K.V. Apparels, his future prospects would be definitely affected. Therefore, even though the Doctor had assessed the disability of the claimant only at 35%, the court below is right in applying the multiplier method to determine the compensation. 12. Even though the claimant claimed that he was earning Rs.5,000/- as salary and Rs.1,500/- to Rs.2,000 as incentive bonus and produced Ex.P7, salary certificate, it was rightly disbelieved by the court below on the ground that it was not trustworthy as it was given in a letterhead. Therefore, the court below had taken only a sum of Rs.3,000/- as income and given 1/3rd deduction twice, one towards personal expenses and another towards his ability to continue his work. Taking into consideration that the accident occurred during the year 1998, I feel that the Court below is justified in fixing a sum of Rs.1,000/- as monthly loss of income of the claimant. Therefore, taking the sum of Rs.1,000/- and by applying multiplier '13' the claimant is entitled to a sum of (Rs.1,000 X 12 X 13) Rs.1,56,000/- towards disability. Of course, the court below also awarded a sum of Rs.1,56,000/- but under a different head namely "Future loss of income/earning capacity". https://hcservices.ecourts.gov.in/hcservices/ 13. As rightly pointed out by the learned counsel for the insurance company, when the Court below awarded a sum of Rs.1,56,000/- towards future loss of income/earning capacity, the Court below is not justified in granting another sum of Rs.35,000/- towards disability, which is contrary to the Full Bench decision of this Court. Therefore, the amount of Rs.35,000/- awarded by the Court below is set aside. 14. For loss of earning capacity during the period of treatment, a sum of Rs.9,000/- was awarded. For pain and suffering, a sum of Rs.15,000/-. The amount awarded under these heads are reasonable and justifiable and therefore, I am not inclined to interfere with the same. 15. As far as transportation to hospital and Extra Nourishment are concerned, I feel that the amount awarded under these heads have to be enhanced taking into consideration the nature and extent of the injuries sustained by the claimant. Therefore, I hold that the claimant is entitled to Rs.5,000/- towards transportation as against Rs.2,000/- and Rs.10,000/- for Extra Nourishment as agianst Rs.2,000/- awarded by the Court below. 16. For loss of amenities, the Court below has not awarded any amount. Considering the eye injury sustained by the claimant and the period of treatment undergone by him, I feel it reasonable to award a sum of Rs.5,000/- towards loss of amenities. Accordingly, the claimant is entitled to Rs.5,000/- towards loss of amenities. 17. In the result, the appeal filed by the claimant for enhancement of the compensation amount is dismissed and the appeal filed by the insurance company is allowed. The award passed by the Court below is modified and the compensation amount is reduced from Rs.2,19,000/- to Rs.2,00,000/- as mentioned below:- Disability : Rs.1,56,000.00 Loss of earning during treatment : Rs. 9,000.00 Transportation to hospital : Rs. 5,000.00 Extra Nourishment : Rs. 10,000.00 Pain and Suffering : Rs. 15,000.00 Loss of Amenities : Rs. 5,000.00 --------------------- Rs.2,00,000.00 --------------------- 18. It is brought to the notice of this Court by the learned Counsel for the insurance company that the claim petition was dismissed before the Court below for default on 16.08.2007 and it was restored only on 17.02.2010 and therefore, for this period, the insurance company is not bound to pay interest to the claimant. I find force in the submission of the counsel for the insurance company and I hold that the claimant is not entitled for interest from 16.08.2007 to 17.02.2010. 19. It is represented that the insurance company has deposited the entire compensation amount before the Court below. In view of the reduction in the compensation amount, if there is any balance https://hcservices.ecourts.gov.in/hcservices/ amount, the insurance company is permitted to withdraw the same. On the other hand, if the insurance company is still liable to pay any amount, the same shall be deposited with interest at the rate of 7.5% per annum within a period of eight weeks from the date of receipt of a copy of this judgment. On such deposit, the claimant is permitted to withdraw the compensation amount, as determined in this appeal, with accrued interest. No costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst.Registrar //True Copy// Sub.Asst.Registrar rsh To The Motor Accidents Claims Tribunal The II Judge Small Causes Court Chennai. 2 cc to Mr. N.M. Muthurajan, Advocate, Sr.No.70700 2 cc to Mr. S. Vadivel, Advocate, Sr.No.70769, 70760 CMA No. 616 & 849 of 2011 rsy(co) pmk.20.2.2012 https://hcservices.ecourts.gov.in/hcservices/