IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 12.12.2008 CORAM:- THE HON'BLE MR. JUSTICE R. SUDHAKAR C.M.A.No. 3951 of 2008 ..... The Divisional Manager, National Insurance Company Ltd., J.N. Street, Pondicherry.1. .. Appellant/2nd respondent Vs. 1. M. Dhamodaran 2. K. Kalaimathy .. Respondents/Petitioner/ 1st respondent Appeal filed under Section 173 of the M.V. Act against the award and decree dated 28.11.2003 made in MCOP No. 1128 of 2002 on the file of the Motor Accident Claims Tribunal cum II Additional District Judge, Pondicherry. For Appellant : Mr. D. Bhaskaran For Respondents : Mr. D. Ashok kumar -R1 JUDGMENT The National Insurance Company has filed this appeal challenging the award dated 28.11.2003 made in MCOP No. 1128 of 2002 on the file of the Motor Accident Claims Tribunal cum II Additional District Judge, Pondicherry. 2. Respondent No.1/ claimant appears through counsel and pleads for final disposal on merits. It is a case of injury. The accident in this case happened on 7.6.2002. The injured claimant working as a Gang man in the Public Works Department, Pondicherry was travelling as a pillion rider in a motor cycle driven by one Rangarathinam of Pondicherry. Due to the high speed of the motor cycle, the injured claimant was thrown out of the vehicle and he https://hcservices.ecourts.gov.in/hcservices/ sustained multiple injuries and was taken to Government Hospital, Pondicherry. He was treated from 7.6.2002 to 13.6.2002. He suffered fracture of bones on the right leg and injuries all over the body. Some of the injuries are grievous in nature. He filed the claim petition claiming a sum of Rs.4,00,000/- as compensation stating that the income of the injured claimant was Rs.5,170/- p.m. 3. To support the claim petition, the injured claimant was examined as P.W.1 and Dr.Krishnakumar was examined as P.W.2. Documents Exs.A1 to A17 were marked. The relevant documents are Ex.A1 photo copy of the F.I.R., Ex.A4 photo copy of the accident register, Ex.A5 wound Certificate, Ex.A9 Salary Certificate and Ex.A16 disability certificate. No oral and documentary evidence was let in by the appellant/ respondent before the tribunal. 4. The finding of negligence on the part of the rider of the motor cycle insured with the appellant insurance company and the liability of the appellant to compensate the claimant is not in dispute and such finding is confirmed. 5. As far as the compensation is concerned, though the disability is assessed at 40% under the disability certificate, the Tribunal reducing the disability to 30% and also taking note of the employment of the injured claimant, who is a gang man in the P.W.D. Department, by adopting multiplier method, fixed the loss of income due to the disability at Rs.2,97,792/- (Rs.5170/- x 12 x 16x 30/100 = Rs.2,97,792/-). In all, the Tribunal granted the following amounts as compensation with interest at the rate of 9% p.a. Sl.No. Head Amount granted by the Tribunal 1 Loss of earning due to Disability Rs. 2,97,792/- 2 Loss of income during leave period Rs. 13,959/- 3 Pain and suffering Rs. 5,000/- 4 Medical expenses Rs. 299/- 5 Extra nourishment and mental agony Rs. 10,000/- Total Rs. 3,27,050/- 6. The only contention raised by the learned counsel for the appellant is that the Tribunal ought not to have adopted multiplier method in a case of injury of this nature. He stated that there is no evidence to show that the disability assessed will continue the rest of the claimants life so as to adopt the multiplier method. 7. The learned counsel for the claimant on the other hand stated that if the Court is inclined to interfere with the quantum of https://hcservices.ecourts.gov.in/hcservices/ compensation based on the multiplier method, suitable compensation may be granted for disability and on other heads. 8. In this case, the accident happened in the year 2002 and the injured claimant is 40 years, working as a gang man in the P.W.D. He suffered fracture of the right leg and treated in the hospital for some time. However, the claimant has not made out a case for granting compensation on the basis of the multiplier method. 9. A Division Bench of this court in United India Insurance Co. Ltd., - vs. - Veluchamy and another reported in 2005 ACJ 1483, set out the principles as to when multiplier method should be adopted in a case of injury in para 11 which reads as follows:- "11. The following principles emerge from the above discussion: (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." 10. In the present case, under Ex.A16 disability certificate, the Doctor assessed the disability at 40%. Further based on Ex.A4 https://hcservices.ecourts.gov.in/hcservices/ discharge summary and Ex.A5 wound certificate, the claimant is not able to show that the disability is continuing thereafter affecting his employment and earning capacity so as to attract para meters of Veluchamy's case cited above. As rightly stated by the learned counsel for the claimant, for the disability assessed at 40%, reasonable compensation should be given to the claimant. Besides, the claimant is entitled to just compensation for loss of income during the period of leave, attender charges, extra nourishment and medical expenses. In view of the decision of the Division Bench in Veluchamy's case, the award of the Tribunal granting compensation by adopting multiplier is not justified and accordingly, the same is set aside. However, the claimant is entitled to just compensation for the disability assessed at 40% and on other heads stated above. Therefore, the award of the Tribunal is modified as follows:- Sl.No. Head Amount granted by the Tribunal Amount granted by this Court 1 Disability assessed at 40% Rs.50,000/- 2 Loss of income due to disability Rs.2,97,792/- --- 3 Loss of income during leave period Rs. 13,959/- Rs. 15,000/- 4 Pain and suffering Rs. 5,000/- Rs.25,000/- 5 Medical expenses Rs. 299/- Rs. 299 6 Extra nourishment and mental agony Rs. 10,000/- Rs. 7,500/- 7 Transport expenses --- Rs. 7,000/- 8 Attender charges --- Rs. 7,500/- Total Rs.3,27,050/- Rs.1,12,299/ - 11. Since the accident happened in the year 2002 and the award was passed in the year 2003, the interest granted by the Tribunal stands reduced to 7.5% as against 9% in view of the decision of the Apex Court reported in 2005 (3) C.T.C. 373 (Tamil Nadu State Transport Corporation vs. S.Rajapriya). https://hcservices.ecourts.gov.in/hcservices/ 12. In the result, the civil miscellaneous appeal is partly allowed as follows:- (i) The award of the Tribunal is reduced to Rs. 1,12,199/- from Rs.3,27,050/-. (ii) The interest granted at 9% is reduced to 7.5% p.a. (iii) Learned counsel for the appellant seeks for eight weeks time to deposit the award amount and the same is allowed. On such deposit, the claimant is entitled to withdraw the same as per the order of this Court. (iv) There shall be no orders as to costs. (iv) Consequently, CMP No. 2047 of 2008 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ra To The Motor Accident Claims Tribunal cum II Additional District Judge, Pondicherry. +1cc to Mr.D.Baskaran, Advocate Sr 69773 KLT (CO) km/29.1. CMA No. 3951/2008 https://hcservices.ecourts.gov.in/hcservices/