IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:18.11.2008 CORAM:- THE HON'BLE MR. JUSTICE R. SUDHAKAR C.M.A.No.3554 of 2008 and M.P.No.1 of 2008 The Oriental Insurance Co.Ltd., parimalam Complex, II Floor, E.V.N.Road, Erode, Erode District. ..Appellant/3rd Respondent Vs. 1. Murugesan @ Muruganantham 2. Rajendran 3. M/S.Velavan Transports. ..Respondents/Claimant and Respondents 1 & 2 Appeal filed under Section 173 of the M.V.Act against the award and decree dated 21.07.2006 in MCOP No.39 of 2004 on the file of the Motor Accidents Claims Tribunal,(Additional District and Sessions Judge - FTC.No.III), Dharapuram, Erode District. For Appellant : Mr. S.Arunkumar For Respondent-1 : Mr.M.A.P.Thangavel JUDGMENT The Insurance Company has filed this appeal challenging the award dated 21.07.2006 in MCOP No.39 of 2004 on the file of the Motor Accidents Claims Tribunal,(Additional District and Sessions Judge-FTC.No.III), Dharapuram. 2. This is a case of injury. The accident, in this case, happened on 10.09.2000. The injured – Claimant Murugesan @ https://hcservices.ecourts.gov.in/hcservices/ Muruganantham, aged about 23 years, a building Contractor, was travelling in the bus belonging to the third respondent M/S.Velavan Transports and insured with the appellant. Due to rash and negligent driving of the driver of the bus, the said Murugesan was thrown out of the bus. He sustained crush injury over the right foot resulting in the removal of four toes. He was taken to the Government Hospital for initial treatment and thereafter, he was treated at L.K.M.hospital at Erode for 48 days as in patient. 3. The injured Murugesan stated that he is a building Contractor earning Rs.4,000/- per month. For the injuries sustained by him, he sought compensation in a sum of Rs.5,00,000/- 4. In support of the claim, the injured claimant was examined as P.W.1 and one Doctor Periasamy was examined as P.W.2. Documents were marked as Exs.P.1 to P.15. No oral or documentary evidence was let in by the appellant/respondent before the Tribunal. 5. The finding of the negligence on the part of the driver of the car belonging to the third respondent and the liability fixed on the appellant to compensate the claimant is not disputed. 6. The only contention raised by the appellant's counsel is with regard to the quantum of compensation. The issue relating to the compensation was decided by the Tribunal from paragraph 10 onwards in answer to Point No.2. Due to the crush injury the claimant was treated in two hospitals and he was in patient for more than 48 days and four toes were removed and surgical procedures were done to correct the same. Skin grafting was also done. Diagnosis according to the medical records is as follows: " Crush injury Rt.foot LC hands metatarsal amputation of steral 4 toes and communited fracture 1st metatarsal bone compound communited fracture both bones Rt.Left." 7. The income of the injured/claimant was fixed at Rs.2,500/- per month as against Rs.4,000/- claimed. Based on the disability assessed at 36% by adopting 17 multiplier and taking the income of the injured-claimant at Rs.2,500/- per month, the Tribunal determined the pecuniary loss as follows: 2500 X 12=30,000/- X 17 X 36/100 = 1,83,600/-The Tribunal awarded amounts on conventional heads also. In all, the Tribunal granted the following amounts as compensation with interest at the rate of 7.5%. https://hcservices.ecourts.gov.in/hcservices/ Sl.No. Head Amount granted by the Tribunal 1 Loss of earning capacity due to permanent disability Rs. 1,83,600/- 2 Medical expenses as per bills Rs. 47,300/- 3 Future Medical expenses Rs. 15,000/- 4 Pain & Suffering, Extra nourishment & Transport expenses Rs. 54,100/- Total Rs. 3,00,000/- 8. The appellant's counsel contended that the Tribunal erred in adopting higher multiplier of 17. He relied on the decision of a Division Bench of this Court in the case of United India Insurance Co. Ltd., - vs. - Veluchamy and another reported in 2005 ACJ 1483. As far as other amounts granted by the Tribunal are concerned, there is no dispute according to the counsel for appellant. 9. Learned counsel for the respondent/claimant, on the other hand,pleaded that the award is just and reasonable and it does not require any reduction. 10. The Division Bench of this Court in United India Insurance Co. Ltd., - vs. - Veluchamy and another (cited supra) sets out the parameters as to when the multiplier method can be adopted in the case of injury. In Paragraph 11 of the decision reads thus:- "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 https://hcservices.ecourts.gov.in/hcservices/ 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." 11. In this case, there is no evidence to show that the injured claimant, a building Contractor was so grievously injured, and so that he lost his earning capacity for the rest of his life. The higher multiplier of 17 as in the case of death, cannot be adopted in the case of injury. The claimant is, however, entitled to get compensation for loss of income in a sum of Rs.7,500/- for the three months of treatment as in patient. He is also entitled to get Rs. 5,000/- towards attendant charges. A sum of Rs.54,100/- granted by the Tribunal for pain and suffering and for extra nourishment, transport expenses is confirmed. A sum of Rs.15,000/- for future medical expenses granted by the Tribunal is confirmed as the injured claimant need to undergo physiotherapy which is evident by the nature of injury. Further a sum of Rs.47,300/- granted for medical expenses by the Tribunal is also confirmed as it is supported by document. The higher multiplier of 17 as in the case of fatal accidents, cannot adopted in the case of injury. In this case, considering the possibility of earning by other means and also the lump sum payment to be paid, lesser multiplier of 10 can be taken. The compensation for pecuniary loss will be Rs.2500/- p.m. X 12 = Rs.30,000/- p.a X 10 X 36/100 = Rs.1,08,000/-. Accordingly, the compensation granted by the Tribunal is modified as follows: Sl.No. Head Amount granted by this Court 1 Loss of earning capacity due to permanent disability Rs. 1,08,000/- 2 Medical expenses as per bills Rs. 47,300/- 3 Future Medical expenses Rs. 15,000/- 4 Pain & Suffering, Extra nourishment & Transport expenses Rs. 54,100/- https://hcservices.ecourts.gov.in/hcservices/ Sl.No. Head Amount granted by this Court 5. Loss of income for three months Rs. 7,500/- 6. Attendant charges Rs. 5,000/- Total Rs. 2,36,900/- Since the accident happened in the year 2000 and the award was passed in the year 2006, the rate of interest granted by the Tribunal at 7.5% stands confirmed. 12. In the result, the Civil Miscellaneous Appeal is partly allowed as follows: i) The award of the Tribunal is reduced to 2,36,900/- from Rs.3,00,000/-. ii) The interest granted by Tribunal at 7.5% is confirmed. iii) The learned appearing for the appellant seeks eight weeks' time to deposit the amount and the same is allowed. On such deposit, the claimant will be entitled to withdraw the same. iv) Excess amount in deposit, if any, shall be withdrawn by the appellant with accrued interest. v) There shall be no order as to costs. vi) Connected miscellaneous petition is closed. sd/- Asst.Registrar /true copy/ Sub Asst.Registrar PAL To The Motor Accidents Claims Tribunal, (Additional District and Sessions Judge) Fast Track Court No.III, Tharapuram, Erode District. + 1 c.c. to Mr. S. Arunkumar, Advocate. S.R.No.64489. + 1 c.c. to Mr. Ma.P. Thangavel, Advocate. S.R.No.64924. CMA No.3554 of 2008 CK (CO) GSK 19.12.2008. https://hcservices.ecourts.gov.in/hcservices/