IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.12.2008 CORAM:- THE HON'BLE MR. JUSTICE R. SUDHAKAR C.M.A.No. 3772 of 2008 ....... United India Insurance Co. Ltd., No.89, 2nd floor, 2nd cross, Samipige Road, Malleshwaram, Bangalore. .. Appellant/2nd respondent Vs. 1. A. Jayaram 2. Govindaraju .. Respondents/petitioner/ first respondent Appeal filed under Section 173 of the Motor Vehicles Act against the award and decree dated 2.3.2007 in MCOP No. 36 of 2004 on the file of the Motor Accident Claims Tribunal (sub Court), Hosur. For Appellant : Mr. S. Arunkumar For Respondents : Mr. A. SirajUDDIN - R1 R2 – exparte JUDGMENT The United India Insurance Company has filed this appeal challenging the award dated 2.3.2007 in MCOP No. 36 of 2004 on the file of the Motor Accident Claims Tribunal (sub Court), Hosur. 2. It is a case of injury. The accident in this case happened on 5.3.2004. The claimant Jeyaraman, 36 years old electrician-cum-decorator was travelling on a TVS moped along with his brother-in-law when the goods vehicle insured with the appellant insurance company driven by its driver in a rash and negligent manner , hit the moped and in that accident, the claimant suffered grievous injuries to his left hand and other https://hcservices.ecourts.gov.in/hcservices/ parts of the body. He was treated at Victoria hospital, Bangalore, Vijaya Nursing home, and Government Hospital, Hosur. A case was registered against the driver of the goods vehicle for rash and negligent driving and the claim petition was filed seeking compensation in a sum of Rs.5,00,000/- stating that his income as electrician was Rs.10,000/- p.m. 3. In support of the claim petition, the injured claimant was examined as P.W.1 and Dr. T.V. Gandhi, was examined as P.W.2. Documents Exs. A1 to A8 were marked. Ex.A1 is the F.I.R. Ex.A2 is the prescription given by the Victoria Hospital, Bangalore. Ex.A3 is the photo copy of the R.C.Book. Ex.A4 is the photo copy of the driving licence. Ex.A5 is the wound certificate issued by the Victoria Hospital, Bangalore. Ex.A6 series are the medical bills. Ex.A7 is the petitioner's photo with negatives . Ex.A8 is the disability certificate. On behalf of the appellant/ II respondent before the Tribunal, one Kullammal and Dhanasekaran, officials of the appellant insurance company were examined as R.Ws.1 and 2. No document was filed on behalf of the appellant/ II respondent before the Tribunal. 4. On the question of negligence, the Tribunal came to the conclusion that the driver of the goods vehicle was rash and negligent and was responsible for the accident. The Tribunal accepted the oral evidence of the injured claimant/P.W.1 and the F.I.R., Ex.A1 in which, the fault has been fixed against the driver of the goods vehicle. The driver of the offending vehicle was not examined. The Tribunal rejected the evidence of R.Ws. 1 and 2, officials of the insurance company saying that they are not witness to the accident. Since the driver of the goods vehicle was not examined and no documentary evidence was filed to support the plea of the respondents, the Tribunal held that the negligence was on the part of the driver of the goods vehicle and consequently, liability was fixed on the appellant insurance company to compensate the claimant. This finding of the Tribunal cannot be found fault as there is no other evidence to come to a different conclusion than what has been arrived by the Tribunal. 5. The age of the injured claimant was 36 years then and it is not in dispute. He claimed his income as Rs.10,000/- p.m. stating that he is extensively engaged in the business of decorating marriage halls and serial lights settings. The injured claimant pleaded the same in the oral evidence. However, no specific document has been marked . In the claim petition, the claimant has stated that he was supporting the family consisting of wife, son and daughter and also adopted a daughter of the sister-in-law, who died in an unfortunate circumstances. He therefore, pleaded that he had substantial https://hcservices.ecourts.gov.in/hcservices/ means to take care of the family. As far as the disability is concerned, the Doctor, who was examined as P.W.2, assessed the disability at 50% under Ex.A8, the disability certificate. The Tribunal came to the conclusion that consequent to the injuries, the injured claimant cannot work and earn as before and therefore, his income would be affected to a great extent and the Tribunal held that the injured claimant is entitled to compensation for loss of earning capacity due to disability. Considering the age, occupation, injuries suffered and the income claimed, the Tribunal granted the following amount as compensation with interest at the rate of 9% p.a. Sl.No. Head Amount granted by the Tribunal 1 Permanent disability at 50% Rs. 50,000/- 2 Pain and Suffering Rs. 25,000/- 3 Loss of earning capacity due to disability Rs. 2,05,000/- 4 Extra nourishment Rs. 4,000/- 5 Medical bills Rs. 7,000/- 6 Transport expenses Rs. 4,000/- Total Rs. 2,95,000/- 6. Learned counsel for the appellant contended that the Tribunal erred in granting Rs.50,000/- for the disability having granted Rs.2,05,000/- towards loss of earning capacity due to disability. He relied upon the decision of the Full Bench of this Court in Cholan Roadways Corporation Ltd. -v.- Ahmed Thambi reported in 2006(4) C.T.C. 433. He also pleaded for reduction in the rate of interest stating that the accident happened in the year 2004 and the award was passed in the year 2007. 7. On the contrary, the learned counsel for the claimant stated that in the event of Court interfering with the quantum of compensation on the ground that the the claimant is not entitled to compensation on both heads namely permanent disability and loss of earning capacity due to disability, suitable compensation may be granted based on the multiplier method as set out in the decision of the Division Bench of this Court in United India Insurance Co. Ltd., - vs. - Veluchamy and another reported in 2005 ACJ 1483. He also pleaded for just compensation for the period of treatment and enhanced compensation for transport expenses, extra nourishment and loss of amenities. https://hcservices.ecourts.gov.in/hcservices/ 8. 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." 9. The claimant in this case has suffered serious injuries to his left hand and he was an electrician by profession. The nature of employment needs the use of both hands as he is dealing with the articles for which electric power is https://hcservices.ecourts.gov.in/hcservices/ used. Therefore, the claimant cannot work and earn as before as his index finger was amputated and there was a fracture and non union of middle finger. There is also curvature of other fingers. Therefore, the utility of the left hand will be very much affected. The principles enunciated in Veluchamy's case will be applicable for determination of compensation in this case. 10. From the award, it is seen that meager amount has been granted for extra nourishment and transport expenses. No amount was granted for attender charges and loss of income during the period of treatment i.e. for the period of three months. There is absolutely no discussion as to how the compensation is granted on various heads and how it is assessed. Therefore, it becomes necessary to modify the compensation, so that the claimant will get just and reasonable compensation. Since the claimant in this case is an electrician by profession, his income can be reasonably fixed at Rs.4,000/- p.m. Considering the fact that the accident happened in the year 2004 and the disability has been assessed at 50%, the claimant is entitled to compensation by adopting multiplier of eight. Accordingly, the claimant is entitled to a sum of Rs.1,92,000/- (Rs.4,000/- x 12 x 8 x 50/100= Rs.1,92,000/-) towards loss of earning capacity due to disability. The amount of Rs.25,000/- granted towards pain and suffering and Rs.7,000/- granted towards medical expenses are confirmed. Since the claimant has travelled from Hosur to Bangalore for treatment, he is entitled to a sum of Rs.7,000/- towards transport expenses and Rs.7,000/- towards extra nourishment. The claimant is also entitled to Rs.5,000/- for attender charges and Rs.12,000/- towards loss of income during the period of treatment. Accordingly, the award of the Tribunal stands modified as follows:- Sl.No. Head Amount granted by the Tribunal Amount granted by this Court 1 Permanent disability at 50% Rs. 50,000/- --- 2 Pain and Suffering Rs. 25,000/- Rs. 25,000/ 3 Loss of earning capacity due to disability Rs.2,05,000/- Rs.1,92,000/ - 4 Extra nourishment Rs. 4,000/- Rs. 7,000/ 5 Medical bills Rs. 7,000/- Rs. 7,000/ 6 Transport expenses Rs. 4,000/- Rs. 7,000/ 7 Attender charges -- Rs. 5,000/ https://hcservices.ecourts.gov.in/hcservices/ Sl.No. Head Amount granted by the Tribunal Amount granted by this Court 8 Loss of income during treatment for three months --- Rs. 12,000/- Total Rs.2,95,000/- Rs.2,55,000/ 11. The accident in this case happened on 17.8.2004. Therefore, the interest awarded by the Tribunal at 9% stands modified to 7.5% in lieu of the decision of the Apex Court reported in 2005 (3) C.T.C. 373 (Tamil Nadu State Transport Corporation vs. S.Rajapriya). 12. In the result, the civil miscellaneous appeal is partly allowed as follows:- (i) The award of the Tribunal reduced to Rs. 2,55,000/- from Rs.2,95,000/-. (ii) The interest will be 7.5% p.a. (iii) Learned counsel for the appellant seeks eight weeks time to deposit the award amount and the same is allowed. On such deposit, the claimant is entitled to withdraw the amount as per the order of this Court. (iv) There shall be no orders as to costs. (v) Consequently, M.P.No. 1 of 2008 is closed. Ra Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To The Motor Accident Claims Tribunal, (Sub Court ), Hosur. Copy to:- The Section Officer, VR Section, High Court, Madras. • 1 cc to Mr. S. Arunkumar, Advocate SR No.70622 • 1 cc to M/s. Siraj & Siraj, Advocate SR No.70376 RJ(CO) SR/11.2.2009 CMA No. 3772 of 2008 https://hcservices.ecourts.gov.in/hcservices/