United India Insurance Co. Ltd. v. Mohan Kumar & M.Kamalam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 08.02.2011CORAM :THE HONOURABLE MR. JUSTICE. P.P.S.JANARTHANA RAJAC.M.A.No.11 of 2010 &M.P.No.1 of 2010United India Insurance Co. Ltd.,No.146-N, Kumar Complex,Thiruchengode Post & Taluk,Namakkal District.... Appellant/II Respondent....Vs...1. Mohan Kumar2. M.Kamalam ... Respondents Petitioner I Respondent.Prayer: Appeal filed under Section 173 of the Motor Vehicles Act,1988, against the award dated 30.06.2009 made in M.C.O.P No.400 of 2006 the Learned Motor Accident Claims Tribunal, Chief Judicial Magistrate,Namakkal.For appellant: Mr.T.RavichandranFor respondents: Mr.M.A.P.Thangavel (R-1)- - -J U D G M E N TThe appeal is preferred by the appellant-Insurance Company againstthe award dated 30.06.2009 made in M.C.O.P No.400 of 2006 by the LearnedMotor Accident Claims Tribunal, Chief Judicial Magistrate, Namakkal.2.Background facts in a nutshell are as follows:-The Injured Mohankumar met with a motor vehicle accident that tookplace on 27.09.2005 at about 09.00 hrs. The said injured was standing the extreme left side of the road and at that point of time, a private busbearing Registration No.TN34 B 2298 came in a rash and negligent mannerand also at high speed and hit the injured. Due to the said impact, theinjured sustained grievous injuries, fractures and also multiple injuriesall over body. He claimed a sum of Rs.5,00,000/- as compensation. Theappellant-Insurance Company resisted the claim. On pleadings the Tribunalframed the following issues:- https://hcservices.ecourts.gov.in/hcservices/ "1.Who was responsible for the accident?2.From whom the claimant is entitled to receivecompensation?3..What is the compensation the claimant is entitledto? If so, what is the amount?"After considering the oral and documentary evidence, the Tribunal heldthat the accident had occurred only due to the rash and negligent drivingof the driver of the private bus and awarded a compensation Rs.1,82,400/- with interest at 7.5% per annum from the date of petitionand the details of the same are as under:-Loss of Income..Rs.1,22,400.00Pain and Suffering..Rs. 30,000.00Medical Expenses..Rs. 25,000.00Transport and Nutrition..Rs. 5,000.00 ------------------ Rs.1,82,400.00 ------------------Aggrieved by that award, the appellant-Insurance Company has filed thepresent appeal. 3. The learned counsel appearing for the appellant/InsuranceCorporation questioned only the quantum of compensation awarded by theTribunal and contended that the amount awarded by the Tribunal excessive, exorbitant and without basis and justification and thattherefore, the award passed by the Tribunal is not in accordance with lawand the same has to be set aside.4. Learned counsel appearing for the first respondent/claimantsubmitted that the Tribunal had considered all the relevant materials andevidence on record and came to the right conclusion and awarded a just,fair and reasonable compensation. Hence the order of the Tribunal is accordance with law and the same has to be confirmed.5. Heard the counsel. On the side of the claimant, PW's 1 and 2 wereexamined and documents Ex.P1 to P10 were marked. On the side of theappellant-Insurance Company, no one was examined and no document wasmarked to support their claim. PW1 is the claimant. PW2 is the Dr.K.Mani.Ex.P1 is the First Information Report. Ex.P2 is the Motor VehicleInspector's Report. Ex.P3 is the wound certificate. Ex.P4 is the Chargesheet. Ex.P5 is the copy of the judgment. Ex.P6 is the Medical Bills.Ex.P7 is the Discharge Summary. Ex.P8 is the copy of the Insurance Policy.Ex.P9 is the X-ray. Ex.P10 is the Disability Certificate. Afterconsidering the oral and documentary evidence, the Tribunal had givencategorical finding that the accident occurred only due to the rash andnegligent driving of the driver of the private bus and the finding https://hcservices.ecourts.gov.in/hcservices/ based on valid materials and evidence.6. At the time of accident, the injured was aged about 23 years. PW1-Mohankumar/claimant in his evidence deposed that he was a Coolie and wasearning a sum of Rs.3,000/- per month. Further, in his evidence, he statedthat the accident occurred due to the rash and negligent driving of thedriver of the private bus and he was also charge sheeted Velagoundampatti Police Station in Crime No.185/05 U/S.279, 338 IPC. Dueto the said injury, he sustained fracture in his left leg and othermultiple injuries all over body. Immediately after the accident, he wasadmitted at Government Hospital, Manickampalayam. Later, he was referredto Arvind Hospital, Namakkal for better treatment and he was takentreatment therein for 30 days as inpatient. Due to the accident, theclaimant was unable to do the normal work as before. PW2, the Doctor, whoexamined the claimant, in his evidence has stated that the claimantsustained fracture on his left leg and also other multiple injuries allover body and he also stated that the claimant took treatment as inpatientfrom 27.09.2005 to 06.10.2005 and he had undergone surgery and iron rodsand screws were fixed in the broken bones. Due to the injury, the claimantunable to walk, climb, drive, and to do the normal work as before.Thereafter, PW2-doctor determined the Disability at 30% and issued Ex.P10-Disability Certificate. The Tribunal had given a categorical finding that30% disability affects the earning capacity of the claimant. Therefore,the Tribunal applied the multiplier method in the present case and takenthe age of the claimant at 23 years and fixed the monthly income Rs.3,000/-. After deducting 1/3 share towards his personal expenses, theremaining 2/3 is taken i.e., Rs.2,000/- as monthly income and adopted themultiplier of 17 and arrived at the loss of income at Rs.1,22,400/-(Rs.2,000 x 12 x 17 x 30%). There is no dispute regarding monthly as wellas annual income of the claimant. The learned counsel appearing for theappellant vehemently contended that there is no materials available record to show that the injured is permanently disabled in the presentcase and also the correct multiplier that should be adopted in this caseis '14' instead of '17'. In the case of UNITED INDIA INSURANCE COMPANYLIMITED VS. VELUCHAMY AND ANOTHER reported in 2005 (1) CTC 38, theDivision Bench of this Court has formulated certain guidelines to followed in the matter of adopting multiplier method, precisely in thecase of permanent disability, which reads as follows. "11.The following principles emerge from the above discussion:(a)In all case of injury or permanent disablement"multiplier method" cannot be mechanically applied to ascertainthe future loss of income or earning power.(b)It depends upon various factors such as nature and extentof disablement, avocation of the injured and whether it wouldaffect his employment or earning power, etc., and if so, to whatextent?(c)(1)If there is categorical evidence that because of theinjury and consequential disability, the injured lost hisemployment or avocation completely and has to be idle till the https://hcservices.ecourts.gov.in/hcservices/ rest of his life, in that event loss of income or earning may beascertained by applying "multiplier method" as provided underSecond Schedule to Motor Vehicles Act, 1988.(2)Even if so there is no need to adopt the same period asthat of fatal cases as provided under the schedule. If thereis no amputation and if there is evidence to show that there islikelihood of reduction or improvement in future years, lesserperiod may be adopted for ascertainment of loss of income.(d)Mainly it depends upon the avocation or profession ornature of employment being attended by the injured at the time ofaccident."7.The Supreme Court in the case of A.P.S.R.T.C. Rep. By its Chief LawOfficer V. M. Pentaiah Chary, 2007 (2) TN MAC 152 (SC), held as follows:"13.We therefore, fail to visualize that in a case ofthis nature a claimant can be deprived of a reasonable amountof Compensation despite the fact that he has permanently losthis capacity to earn and remain dependent on other besidesphysical sufferance of such magnitude as to why the multipliersuggested by the parliament should not be accepted.14.We do not, however, intend to lay down a general law.We wish to point out that minimum Compensation payable in acase of this nature should be considered from the sufferingsof disability undergone by the victim. We are not suggestingthat in certain situations, the multiplier specified in theSecond Schedule cannot and should not be altered but thereforthere must exist strong circumstances."Taking note of the principles enunciated in the above Judgements, I am the view that the Tribunal is correct in adopting multiplier method in thepresent case. There is no serious dispute regarding the same. But, themultiplier adopted by the Tribunal is also modified. The correctmultiplier to be adopted is 14. Hence, if multiplier '14' is adopted, theloss of income works out to Rs.1,00,800/-(Rs.2,000x12x14x30%) as againstRs.1,22,400/- awarded by the Tribunal. The Tribunal awarded a sum Rs.30,000/- towards pain and sufferings. After taking into considerationthe nature of injuries sustained, I feel that the amount awarded by theTribunal under this head is on the higher side and it is reasonable award a sum of Rs.25,000/- as against Rs.30,000/- awarded by the Tribunal.The Tribunal has awarded a sum of Rs.25,000/- (as per Ex.P6) towardsmedical expenses, which is an actual expenditure incurred by the claimantand based on valid materials. Hence, the amount awarded under the headof medical expenses is confirmed. The Tribunal awarded a sum Rs.5,000/- under the heads of Transport expenses and Nutrition, which very reasonable and the same is confirmed. The Tribunal has awardedinterest at the rate of 7.5% p.a from the date of petition till the dateof realisation. The accident was occurred on 27.09.2005. Keeping in view https://hcservices.ecourts.gov.in/hcservices/ the prevailing rate of interest at the time of the accident and the dateof award, I feel that the rate of interest awarded by the Tribunal is veryreasonable and the same is confirmed. The details of the modifiedcompensation as per the above discussion are as under:-Loss of Income..Rs.1,00,800.00Pain and Suffering..Rs. 25,000.00Medical Expenses..Rs. 25,000.00Transport and Nutrition..Rs. 5,000.00 ------------------ Rs.1,55,800.00 ------------------Therefore, the claimant is entitled to the modified compensation Rs.1,55,800/- with interest at 7.5% per annum from the date of petitionas against the compensation of Rs.1,82,400/- awarded by the Tribunal.8. It is represented by the learned counsel appearing for theappellant-Insurance company that the entire amount has already beendeposited as per order of this Court dated 05.01.2010. In suchcircumstances, the claimant is permitted to to withdraw the modifiedcompensation of Rs.1,55,800/- with interest at 7.5% per annum from thedate of petition, after adjusting the amount, if any already withdrawn, making proper application. Likewise, the appellant-Insurance company permitted to withdraw the balance amount, on making proper application.9. With the above modification, the Civil Miscellaneous Appeal disposed of. No costs. Consequently, connected Miscellaneous Petition closed. r n sSd/-Asst. Registrar//True copy//Sub Asst. RegistrarTo1.Chief Judicial Magistrate, Namakkal.2. The Section Officer, VR Section, High Court, Madras.+1cc to Mr.T.Ravichandran, SR.No.10260/11+1cc to Mr.P.Thangavel, SR.No.9505/11C.M.A.No.11 of 2010SA(CO)SG(24.5.11)