1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 23.06.2011 CORAM: THE HONOURABLE Ms.JUSTICE K.B.K.VASUKI C.M.A(MD)No.357 of 2011 Sonai ... Appellant/Petitioner Vs. 1. G.Balasubramanian R1 set exparte before the Tribunal Hence notice may be dispensed with) 2. The National Insurance Corporation Limited, represented through its Divisional Manager, 3, North Veli Street, Madurai. ... Respondents/Respondents PRAYER: Civil Miscellaneous Appeal filed under Section 173 of Motor Vehicles Act, 1998 against the award dated 08.12.2010 made in M.A.C.O.P.No.1807 of 2005, on the file of the Motor Accidents Claims Tribunal-cum- Additional District and Sessions Judge, Fast Track Court No.III, Madurai. For Appellant : MR.Ron Karthikeyan For Respondent-1 : No appearance For Respondent-2 : MR.J.S.Murali JUDGMENT The appeal is filed by the claimant for enhancement of compensation of Rs.35,000/- awarded by the Tribunal for the injuries sustained by him in the accident occurred at 10.00 A.M. on 18.07.2005 near Deepa-Roopa Theatre, Workshop Road, Madurai due to rash and negligent driving of the scooter owned and ridden and insured with the respondents 1 and 2 respectively. The Tribunal by accepting the case of the claimant regarding the manner of the accident fastened the liability for payment of compensation upon the insurer and insured of the vehicle in question and has awarded a sum of Rs.35,000/- as compensation under the following heads: 1. Pain and suffering - Rs.15,000/- 2. medical and other incidental expenses - Rs. 5,000/- 3. Compensation for permanent disability - Rs.15,000/- at 8% ------------- total - Rs.35,000/- ------------- 2. The appellant has in this appeal sought enhancement of compensation on the ground that the Tribunal has erred in rejecting the medical evidence adduced on the side of the claimant regarding the nature and extent of permanent disability sustained which resulted in functional disability leading to loss of earning capacity and further erred in fixing the permanent disability at 8% and granting Rs.15,000/- compensation without duly considering the nature and extent of the https://hcservices.ecourts.gov.in/hcservices/ 2 injuries and fractures sustained, the nature of treatment undergone by the claimant and the resultant permanent disability and the impact of the same upon his functional disability and his loss of earning capacity and the loss of future income as cooly sustained by the claimant as disclosed by Ex.P2- Accident Register Copy, Ex.P5- O.P.Note Book, Ex.P7- X-ray Ex.P8-Disability Certificate, Ex.X1- Case sheet and by the oral evidence of P.W.3-qualified medical practitioner who deposed about the permanent disability of the injured. 3. Per contra, the learned counsel for the second respondent/Insurance Company would attempt to defend the order of the Tribunal insofar as it relates to quantum of compensation under the heading of permanent disability on the ground that the claimant failed to establish the same through sufficient medical evidence. 4. Heard the rival submissions made on either side. 5. The perusal of the records would reveal that Ex.X1- is the case sheet relating to treatment given to the claimant from the hospital concerned and the same is produced and received by the Tribunal as Ex.X1-Court document. In addition to the same, claimant has also produced Ex.P1-Accident Register copy, Ex.P5-O.P Note Book, Ex.P7-X-ray, which are if viewed in the light of contents of Ex.X1 would to greater extent establish the case of the claimant that he sustained fractures and was hospitalised as inpatient and underwent operation and despite the same, he is not fully recovered. The claimant as P.W.1 deposed about the pain and suffering sustained by him and his difficulties in carrying on his day-to-day activities and his nature of avocation and his functional disability in performing the same as before. The same is also sought to be supported by P.W.3-qualified medical practitioner and Ex.P8- Disability Certificate issued by him. As per the oral evidence of P.W.3 and his disability certificate, claimant sustained 40% disability and that fractures was mal-united and he is finding it difficult to squat and sit on the floor or to cross-leg and his movements are reduced. The doctor has also explained in detail as to how restriction of movements is likely to affect his livelihood as a coolie. The doctor has also given the percentage of disability suffered by him due to mal-union of fracture shortening of leg, reduction of right leg and right arm and restriction of movement. it is assessed at 40% of total disability. 6. However, the Tribunal has accepted the doctors evidence only insofar as it relates to permanent disability at 8% and disbelieved his evidence in other respects. Such rejection is as rightly argued by the learned counsel for the appellant is not supported by any much less proper reasoning. This Court considering the nature of injuries sustained by the injured in the light of available medical evidence is inclined to accept the disability as assessed by P.W.3 and as disclosed through medical records referred to above. It is further contended by the learned counsel for the appellant that as the petitioner was before the accident earning his livelihood as collie and as his movements are now restricted and he is unable to stand and squat as before, the same has seriously affected his earning capacity and leading to loss of income and reasonable compensation has to be assessed by adopting multiplier method. This Court finds much force in the argument so advanced by the learned counsel for the appellant. This Court having regard to the age of the https://hcservices.ecourts.gov.in/hcservices/ 3 claimant and the nature of avocation and nature and extent of his disability is inclined to fix monthly income of the injured at Rs.2000/-p.m. and Rs.24,000/-p.a. and loss of total income is assessed by applying the multiplier of '7', and the total loss of earning capacity is arrived at Rs.1,68,000/-. Out of which, actual loss of earning capacity at for 40% permanent disability appropriately comes to Rs.67,200/- and the same is fixed as loss of earning. Thus, the total compensation awarded in this case is enhanced as follows: 1. loss of earning capacity - Rs.67,200/- 2. pain and suffering - Rs.15,000/- 3. medical and other incidental expenses - Rs. 5,000/- ------------- total - Rs.87,200/- ------------- and the same is rounded off as Rs.85,000/- payable with interest at 7.5% p.a.from the date of claim petition till date of payment. 7. In the result, the award dated 08.12.2010 made in M.A.C.O.P.No.1807 of 2005, on the file of Motor Accidents Claims Tribunal-cum-Additional District and Sessions Judge, Fast Track Court No.III, Madurai is enhanced by awarding Rs.85,000/- with costs and interest at 7.5% p.a. from the date of claim petition till date of payment payable by the second respondent/insurance company within two months from the date of receipt of the copy of this Order. On such deposit of the amount into court, the claimant is permitted to withdraw the entire award amount with interest and costs. The claimant is directed to pay excess court fee, if any, within one month from the date of receipt of the copy of this order, failing which the enhanced compensation will not carry interest from date of receipt of a copy of this order till date of payment of excess court fee. 8. The Civil Miscellaneous Appeal is disposed of accordingly. No costs. Sd/- Assistant Registrar (AE) /True Copy/ Sub Assistant Registrar(CS) To The Additional District and Sessions Judge, Fast Track Court No.III,Motor Accidents Claims Tribunal,Madurai. +1cc to Mr.P.Ponkarthikeyan, Advocate, SR.No.19769 vsn GH : 11.10.2011 : 3p/3c C.M.A(MD)NO.357 of 2011 23.06.2011 https://hcservices.ecourts.gov.in/hcservices/