IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 05.04.2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN CIVIL MISCELLANEOUS APPEAL NO.3176 OF 2010 & M.P.Nos.1 of 2010 and 1 of 2011 The Branch Manager, The New India Assurance Co. Ltd., Srinath Complex, 2nd Floor, New Cotton Market, ... Appellant (2nd Respondent) Hubli – 580 029. ... 1st Respondent (Claimant) Versus 1.A.Vincent 2.The Managing Director, M/s.Vijayanand Roadlines Ltd., Administration Office, “Vijay Karnataka”, Giriraj Annex, Circuit House Road, Hubli Town, Dharwad District, Karnataka State ...2nd Respondent (1st Respondent) (2nd Respondent exparte before Lower Court. Hence notice may be dispensed with) Prayer: This appeal is filed under Section 173 of the Motor Vehicle Act, 1988 against the award and decree made in M.C.O.P.No.47 of 2007, dated 25.03.2010, on the file of the Motor Accidents Claims Tribunal, Principal Subordinate Court, Krishnagiri. For Appellant : Mr.N.Vijayaraghavan For Respondents : Mr.Sriram (R-1) J U D G M E N T The above appeal has been filed by the appellant / New India Assurance Company Limited against the award and decree dated 25.03.2010 made in M.C.O.P.No.47 of 2007, on the file of the Motor Accidents Claims Tribunal, Principal Subordinate Court, Krishnagiri. 2.The brief facts of the case are as follows:- On 21.11.2005, at around 11.00 p.m., the petitioner was proceeding on his bicycle on the Hosur to Bangalore National Highways Road, when at that point of time, the first respondent's lorry bearing Registration No.KA25-A-3307, driven by its driver in a rash https://hcservices.ecourts.gov.in/hcservices/ and negligent manner and dashed against the cyclist, as a result, the claimant had sustained grievous multiple bone fracture injuries, hence the claimant had filed this claim petition for compensation against the respondents for a sum of Rs.15,00,000/- with interest. 3.The second respondent had filed a counter statement and stated that the wound certificate says that the petitioner was riding bicycle during night time. Hence, even if there was an accident that must be due to negligent riding of bicycle i.e., without light in the bicycle by the petitioner. The respondent denied the income, age and occupation and medical expenses. Hence, the petition has to be dismissed. 4.On the pleas of both parties, the Tribunal had framed two issues for consideration, namely; “(i)Whether the rash and negligent driving of the respondent's driver caused the accident? (ii)Whether the respondents are liable to pay compensation? If so what is the quantum?” 5.On the side of the claimant three witnesses had been examined viz., PW1-Vincent / claimant, PW2-Murugesan, PW3-Dr.G.Ashok Kumar and nine documents were marked viz., Ex.A1-First Information Report, Ex.A2-Wound Certificate, Ex.A3-Discharge Summary, Ex.A4-Insurance Policy, Ex.A5-Medical Bills, Ex.A6-Travel Bills, Ex.A7-Artificial leg purchased bill, Ex.A8-Disability Certificate and Ex.A9-Estimation of artificial leg. On the side of the respondent no witness was examined and no document was marked. 6.PW1 had adduced evidence stating that he was proceeding on his bicycle on 21.11.2005, at around 11.00 p.m., on the Hosur to Bangalore National Highways, when at that time, the first respondent's lorry driven by its driver in a rash and negligent manner and dashed against him. A case was registered against the driver of the offending lorry. PW2 spoke on a similar version of the accident. PW1 further stated that his left leg was amputated due to the accident. He was employed at a Private Spinning Mill and was earning a sum of Rs.6,500/- per month. After the accident, he is unable to continue his job. He further stated that he has now artificial limb and due to the amputation he now cannot walk, squat and stand, besides he had sustained head injuries and also injuries to his left ankle, knee, both shoulders and right hand elbow. PW3 doctor had assessed the disability stating that the claimant had sustained 70% disability, after examining the claimant and verifying the medical records. On the side of the respondent there is no witness and no document. 7.On considering the evidence of the witnesses, the Tribunal had awarded a sum of Rs.11,51,585/- as compensation with interest at the https://hcservices.ecourts.gov.in/hcservices/ rate of 6% per annum. This compensation comprising of the following heads:- Rs.72,000/- towards loss of earnings for family members; Rs.10,000/- for transport to hospital and extra nourishment; Rs.500/- for damage to clothes; Rs.54,500/- towards future medical expenses for artificial limb; Rs.5,000/- for attender charges; Rs.50,000/- towards pain and suffering and mental agony Rs.70,000/- for permanent disability; Rs.7,13,034/- towards loss of earning power; Rs.1,76,548/- for medical expenses 8.Aggrieved by the said award, the Insurance Company has filed the above appeal for scaling down the compensation. 9.The learned counsel for the appellant argued that the Tribunal had awarded a sum of Rs.7,13,034/- towards loss of earning power, after adopting the multiplier method, which is erroneous, besides the Tribunal had awarded a sum of Rs.70,000/- towards permanent disability and Rs.72,000/- towards loss of earnings for family members, which are not pertinent in this case, besides the Tribunal had awarded compensation under the head of future medical expenses, which is also not pertinent in the instant case; for pain and suffering Rs.50,000/- is also on the higher side. 10.Learned counsel for the claimant argued that the claimant's left leg was amputated upto knee level besides he had sustained multiple bone fracture injuries on various parts of his body. Now, the claimant is walking with the support of an artificial leg, even though he requires the physical help of others. After the accident, he is not able to continue his job since his physical condition has deteriorated to the maximum level. All the aspects are well considered by the Tribunal and accordingly the assessment carried out. 11.On considering the facts and circumstances of the case and arguments advanced by the learned counsels and on perusing the impugned award of the Tribunal, this Court is of the considered opinion that the compensation under the heads of future medical expenses, loss of earnings for family members, permanent disability are not pertinent, therefore, this Court restructures the compensation as follows:- Rs.1,40,000/- towards disability; Rs.20,000/- for transport; Rs.10,000/- for nutrition; Rs.50,000/- for attender charges; Rs.2,00,000/- for medical expenses; Rs.30,000/- for artificial limbs i.e., for the present and latter use and Rs.5,00,000/- towards loss of future earning power, loss of amenities and loss of permanent discomfort in his middle age. https://hcservices.ecourts.gov.in/hcservices/ 12.In total, this Court awards a sum of Rs.9,50,000/- together with interest at the rate of 7.5% per annum. The interest rate of 6% fixed by the Tribunal is set-aside. Therefore, this Court scales down the compensation from Rs.11,51,585/- to Rs.9,50,000/- with interest as fixed by this Court, since it is being found to be fair and justifiable. This Court imposed a condition on the appellant / Insurance Company to deposit a sum of Rs.7,00,000/- with proportionate interest and costs, now this Court directs the appellant to remit the balance compensation with accrued interest thereon as per this Court order within a period of six weeks from the date of receipt of this order. After such deposit being made, it is open to the claimant to withdraw the modified compensation amount with accrued interest thereon lying in the credit of M.C.O.P.No.47 of 2007 on the file of the Motor Accidents Claims Tribunal, Principal Subordinate Court, Krishnagiri, after filing a Memo along with this order. 13.Resultantly, the above Civil Miscellaneous Appeal is partly allowed. Consequently, the Award and Decree passed by the Motor Accidents Claims Tribunal on the file of Principal Subordinate Court, Krishnagiri made in M.C.O.P.No.47 of 2007, dated 25.03.2010 is modified. There is no order as to costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar r n s To The Principal Subordinate Judge, Motor Accidents Claims Tribunal, Krishnagiri. 1 cc To Mr.M.B.Gopalan, Advocate, SR.24627. 1 cc To Mr.M.Sriram, Advocate, SR.24000. C.M.A.NO. 3176 OF 2010 SV(CO) RVL 01.06.2011 https://hcservices.ecourts.gov.in/hcservices/