IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.11.2011 C O R A M THE HONOURABLE MR. JUSTICE B.RAJENDRAN C.M.A. No. 2348 of 2009 D. Rosaian .. Appellant Versus 1. Shaik Baba 2. Andhra Pradesh State Transport Corporation rep. By its General Manager Mydukur Depot Cudappah District Andhra Pradesh .. Respondents Appeal filed under Section 173 of the Motor Vehicles Act, 1988 against the Judgment and Decree passed in M.C.O.P. No. 5668 of 2003 dated 27.06.2008 on the file of the Motor Accident Claims Tribunal, VI Small Causes Court, Chennai. For Appellant : Mr. Dhananjeyan For Respondents : Mr. M. Sriram for R2 No apearance for R1 JUDGMENT The claimant is the appellant. The claimant is aggrieved by the meagre amount of compensation of Rs.1,38,000/- for the grievous injuries sustained by him in the road accident that took place on 26.09.2003. 2. The claimant filed the claim petition by contending that on 26.09.2003 at about 10.15 am when he was driving the Mini lorry bearing Registration No. TN 23 U. 5457 from Hyderabad to Chennai, next to Patimeethi Palli, Khajapeta, Cudappah District, Andhra Pradesh, the bus bearing Registration No. AP 1 Z 2529 was driven by its driver in a rash and negligent manner and hit against the lorry driven by the claimant. In the impact, the claimant sustained crush injury in his right leg below the knee, Mesentric Tear with Pregangrenous small intestine resection and other injuries all over his body. During the course of treatment, the right leg of the claimant was amputated below knee. According to the claimant, originally, he was admitted in Government Hospital, Cudappah between 26.09.2003 and 15.10.2003 and thereafer, he was shifted to the hospital of Prof. Mayil Vahanam Natarajan, an Orthpedician at Kilpauk, Chennai. At the time of accident, the claimant was aged 33 https://hcservices.ecourts.gov.in/hcservices/ years, owner cum driver of the lorry and earning a sum of Rs.18,000/- Therefore, for the injuries sustained in the accident, the claimant claimed Rs.26,34,000/-, but restricted it to Rs.12,20,000/-. 3. The transport Corporation/second respondent herein resisted the claim petition by filing a counter before the Court below. 4. The Court below, after considering the oral and documentary evidence available on record, awarded a sum of Rs.1,38,000/- as compensation. 5. The learned counsel appearing for the appellant would contend that the amount of Rs.1,00,000/- towards permanent disability; Rs.18,000/- towards pain and suffering and Rs.20,000/- towards medical expenses, transportation and extra nourishment awarded by the court below is not in consonance with the nature and extent of the injuries suffered by the claimant. The court below has not at all taken into consideration the evidence of PW3, Doctor, who assessed the disability of the claimant at 65% under Ex.P17. Yet another Doctor namely PW4 was also examined on behalf of the claimant who deposed that he assessed the disability of the claimant at 35% in so far as it relates to the injuries sustained by him in his abdomen/intestine and for amputation of the leg, he had assessed the disability at 65%. The disability certificate given by PW4 was marked as Ex.P19. Ex.P20 is the Ultrasonogram and Ex.P18 is the X- ray. Inspite of all these documents and evidences adduced by two qualified Doctors who deposed about the nature and extent of injury suffered by the claimant, the Court below awarded only Rs.1,38,000/- as total compensation. In fact, the claimant was the owner cum driver of the lorry, whose leg was amputated below knee and therefore, the injuries sustained by the claimant is 100% inasmuch as it deprived him of his earning capacity in future. The learned counsel for the appellant would further contend that the claimant being a driver, whose leg was amputated, could not discharge his work as before and the loss of his earning capacity is total. Therefore, he would pray for adopting multiplier theory in a case of this nature and prayed for allowing this appeal. 6. The learned counsel appearing for the second respondent/Andhra Pradesh State Transport Corporation would contend that the court below awarded a consolidated compensation taking note of the nature and extent of injuries sustained by the claimant. In any event, in a case of injury, multiplier method need not be resorted to and he prayed for dismissal of the appeal. 7. Heard both sides. This is a pittiable case where the claimant, a driver cum owner of the lorry, at the age of 33 years, lost his right leg below knee by which his future life is shattered. Unfortunately, this was not taken note of by the court below and the court below mechanically passed the award without taking note of the loss of earning capacity of the claimant. 8. The Transport Corporation/second respondent herein admits the date, time and manner in which the accident had taken place and also the liability to pay the compensation. This appeal is at the instance of the claimant. https://hcservices.ecourts.gov.in/hcservices/ 9. According to the claimant, he sustained crush injury in his legs and this was corroborated by the evidence of the Doctor, PW3, who assessed the disability of the claimant at 65% taking into consideration that the right leg of the claimant was amputated below the knee. The disability certificate given by PW3 is Ex.P17. Ex.P4 is also a certificate issued by Ramarao Polyclinic, Chennai. Therefore, on behalf of the claimant, medical records were produced to show that due to the injuries sustained in the accident and the resultant amputation of his right leg below knee has deprived him of his earning capacity, especially, he was the driver cum owner of a lorry. The evidence also makes it clear that the claimant, can no longer drive the lorry in the absence of one of his legs. Therefore, the claimant has to be compensated in tune with the loss of earning capacity resulted out of the physical injury sustained by him in the road accident by adopting multiplier method. 10. The Honourable Supreme Court in the decision reported in (S. Suresh vs. Oriental Insurance Company Limited and another) 2010 13 SCC 777 held that the claimant, being a lorry driver sustained injuries in accident which resulted in amputation below knee. It was further held that even though the Doctor assessed the disability of the claimant at 50% the loss of earning capacity, as a Driver of the lorry is totally lost and it has to be calculated at 100%. In this case also, the claimant, being a driver of the lorry has lost his right leg below knee and that it had resulted in deprivation of his earning capacity. It had also resulted in his functional disability and therefore, the compensation has to be awarded in consonance with the nature of injury sustained by the claimant. 11. For the purpose of adopting multiplier method, the income of the claimant prior to the accident has to be assessed. In this case, the claimant produced documentary evidence to show that he had purchased the lorry by means of hire purchase with Shriram Chit Funds Limited and paying a sum of Rs.10,750/- per month towards hire charges without fail, which is evident from Ex.P14, instalment receipts. The court below also stated that as per the evidence available on record, the claimant was earning Rs.18,000/- per month. But for fixing the loss of income, the Court below has taken Rs.6,000/- as monthly earning of the claimant. If the sum of Rs.6,000/- per month is taken as the basis for determining the income of the claimant, after payment of hire charges to Shriram Chits, a sum of Rs.5,000/- can safely be taken into account as the monthly earning of the claimant. Therefore, by applying multiplier '16', the compensation payable to the claimant towards loss of income will be (Rs.5,000 X 12 X 16) Rs.9,60,000/-. Therefore, the amount of Rs.1,00,000/- awarded by the Court below towards loss of earning is modified and the claimant is awarded a sum of Rs.9,60,000/- towards loss of income. 12. The court below has awarded a sum of Rs.18,000/- towards loss of income during the period of treatment, which I feel is a fair and reasonable compensation. Similarly, the court below awarded Rs.20,000/- towards Extra Nourishment, Transportation and Amenities and I do not find any reason to interfere with the grant of compensation under these heads. However, for pain and suffering, the https://hcservices.ecourts.gov.in/hcservices/ Court below awarded only Rs.5,000/- which is very low. The claimant's right leg was amputated below the knee. He was hospitalised for a period of more than one month and thereafter also taken treatment for the injuries. Therefore, taking into consideration the period of hospitalisation and nature of injuries sustained by the claimant, I enhance the amount awarded under the head pain and suffering from Rs.5,000/- to Rs.25,000/-. 13. In the result, the appeal filed by the claimant is allowed enhancing the compensation amount awarded by the Court below from Rs.1,38,000/- to Rs.10,23,000/- with interest at the rate of 7.5% per annum as mentioned below:- Loss of income : Rs. 9,60,000.00 Pain and Suffering : Rs. 25,000.00 Loss of income during treatment : Rs. 18,000.00 Transportation, Medical Expenses, Amenities & Extra Nourishment : Rs. 20,000.00 ----------------------- Rs.10,23,000.00 ----------------------- 14. The Transport Corporation is directed to deposit the enhanced compensation amount with interest within a period of eight weeks from the date of receipt of a copy of this judgment. On such deposit, the claimant is entitled to withdraw the enhanced compensation amount with accrued interest. No costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar rsh To The VI Judge Court of Small Causes, (Motor Accident Claims Tribunal) Chennai. + 2 cc to Mr.P. Dhananjayan, SR.67974 + 1 cc to Mr.M. Sriram, SR.67907 CMA No. 2348 of 2009 JRG(CO) Eu 18.1.12 https://hcservices.ecourts.gov.in/hcservices/