National Insurance Co Ltd Branch Office v. Mariadoss & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 30.10.2008CORAM:- Hon'ble Mr. Justice R. SUDHAKARC.M.A.No.1749 of 2007andM.P. Nos. 1 of 2008 and 2 of 2007............National Insurance Co LtdBranch OfficeBharathiyar Memorial BuildingsAvinashi Road, Tiruppur .. Appellant/ 2nd respondentVs.1. Mariadoss2.S. Senniappa Gounde .. Respondents/ petitioner/first respondent(2nd Respondent exparte beforecourt below and notice dispensed with) Appeal filed under Section 173 of the M.V.Act againstthe award and decree dated 14.12.2006 in MCOP No. 1052 of 2003on the file of the Motor Accidents Claims Tribunal, Fast TrackCourt No.4, Coimbatore at Tiruppur.For Appellant : Mr. N. VijayaraghavanFor respondents : Mr.S.S. Swaminathan--------JUDGMENTThe National Insurance Company has filed this appealchallenging the award and decree dated 14.12.2006 in MCOP No.1052 of 2003 on the file of the Motor Accidents ClaimsTribunal, Fast Track Court No.4, Coimbatore at Tiruppur.2. It is a case of injury. The accident in this https://hcservices.ecourts.gov.in/hcservices/ case happened on 4.5.2002 at 5.45 p.m. The injured claimantMariadoss, said to be 58 years old, working as O.A. in L.I.C.,was riding a motor cycle when he was hit by a car insured withthe appellant. In that accident, he suffered fracture of theright leg, right shoulder,injury to the right side of the headand other parts of the body. He was treated at P.S.G. Hospital,Coimbatore from 4.5.2002 to 1.6.2002. He claimed a sum ofRs.5,00,000/- as compensation stating that his income isRs.16,159/- p.m. 3. In support of the claim petition, the claimant wasexamined as P.W.1. Dr. Senthilkumar was examined as P.W.2 andone Rajagopal was examined as P.W.3. Documents Exs.A1 to A16were marked. On behalf of the appellant, documents Exs.R1 toR5 were marked. No oral evidence was let in on behalf of theappellant. 4. The finding of negligence on the part of thedriver of the car insured with the appellant, which caused theaccident and the liability of the insurance company tocompensate the claimant is not in dispute and such finding isconfirmed.5. The only contention raised by the learned counselfor the appellant is on the quantum of compensation. 6. In this case, the disability has been assessed at53% under Ex.A8 by the Doctor-P.W.2. The quantum of compensationwas decided by the Tribunal in paragraph 11 of the award inanswer to point No.2. The Tribunal granted a sum ofRs.1,05,300/- towards medical expenses as per the medical billsproduced before the Tribunal. The income of the injuredclaimant was fixed as Rs.8,000/- by rejecting Ex.A10 wherein theclaimant stated that his income is Rs.16,169/- p.m. TheTribunal based on the disability at 53% and considering theinjuries, occupation, age etc., by adopting 8 multiplier,determined the loss of earning power in sum of Rs.3,07,200/-(Rs.8000/- x 12 x 8 = Rs.3,07,200/-). In all, the Tribunalgranted the following amount as compensation with interest atthe rate of 7.5% p.a. https://hcservices.ecourts.gov.in/hcservices/ Sl.No.HeadAmount grantedby the Tribunal1Loss of earning powerRs.3,07,200/-2Pain and sufferingRs. 10,000/-3Transport expensesRs. 1,000/-4Medical expensesRs.1,05,300/-5Extra nourishment and damage to articlesRs. 2,000/-TotalRs.4,25,500/-7. Learned counsel for the appellant pleaded that theinjured claimant in this case was almost in the verge ofretirement and therefore, the question of loss of earningcapacity does not arise. If at all, the claimant will beentitled to a reasonable compensation for disability, pain andsuffering, transport and medical expenses, extra nourishment,attender charges, loss of amenities etc.8. Heard the learned counsel for the respondents, whostated that in the event of Court not agreeing to grantcompensation based on multiplier method, the compensation forpain and suffering, transport expenses, extra nourishment,attender charges and loss of amenities has to be granted. Healso stated that the injured claimant was in hospital for aperiod of 25 days and also needed future medical expenses forphysiotherapy till he recovers from the injuries suffered. 9. In this case, the injured claimant was working asan office assistant in L.I.C. as stated above, he was at theverge of retirement at the time of the accident.The nature ofinjuries do not show that he is immobilized for the rest of hislife time. The Division Bench of this Court in United IndiaInsurance Co. Ltd., - vs. - Veluchamy and another reported in2005 ACJ 1483, set out the principles as to when multipliermethod should be adopted in a case of injury in para 11 whichreads as follows:-"11. The following principles emergefrom the above discussion:(a) In all cases of injury or permanentdisablement 'multiplier method' cannot bemechanically applied to ascertain the futureloss of income or earning power.(b) It depends upon various factorssuch as nature and extent of disablement, https://hcservices.ecourts.gov.in/hcservices/ avocation of the injured and whether itwould affect his employment or earningpower, etc. and if so, to what extent?(c) (1) If there is categoricalevidence that because of injury andconsequential disability, the injured losthis employment or avocation completely andhas to be idle for the rest of his life, inthat event loss of income or earnings may beascertained by applying the 'multipliermethod' as provided under the SecondSchedule to Motor Vehicles Act, 1988.(2) Even so there is no need to adoptthe same period as that of fatal cases asprovided under the Schedule. If there is noamputation and if there is evidence to showthat there is likelihood of reduction orimprovement in future years, lesser periodmay be adopted for ascertainment of loss ofincome.(d) Mainly it depends upon theavocation or profession or nature ofemployment being attended by the injured atthe time of accident."10. The question of adopting multiplier method fordetermining the loss of earning power does not arise in thiscase. One other factor which is relevant to this case is thatthe accident happened on 4.5.2002 and the claimant was due toretire from service on 30.6.2002. Therefore, he had admittedlyhad only two months time to retire from service at the time ofthe accident. The Tribunal was not justified in adopting themultiplier method to grant compensation for the disability interms of the parameters set out in Veluchamy's case.Therefore, the sum of Rs.3,07,200/- granted by the Tribunalbased on multiplier method cannot be sustained and the same isset aside. However, the claimant is entitled to compensation onother heads. The claimant was in hospital for quiet some timeand the nature of injuries show that he needs adequatenutrition, physiotherapy. He will need to be taken care duringtreatment and thereafter. The claimant is entitled to adequatecompensation for transport expenses and future medical expenses.Therefore, the award stands modified as follows:- https://hcservices.ecourts.gov.in/hcservices/ Sl.No.HeadAmountgranted bythe TribunalAmountgranted bythis Court1Permanent disability at 53% ---Rs. 80,000/-2Loss of earning powerRs.3,07,200/- ---3Pain and sufferingRs. 10,000/-Rs. 40,000/-4Transport expensesRs. 1,000/-Rs. 10,000/-5Medical expensesRs.1,05,300/-Rs.1,05,300/-6Extra nourishment and damageto articlesRs. 2,000/-Rs. 10,000/-7Attender charges ---Rs. 7,500/-8Loss of amenities ---Rs. 10,000/-9Future medical expenses ---Rs. 10,000/-TotalRs.4,25,500/-Rs.2,72,800/-11. Since the accident happened in the year 2002and the award was passed in the year 2006, the interest grantedby the Tribunal at 7.5% stands confirmed.12. In the result, the civil miscellaneous appeal ispartly allowed as follows:-(i) The award of the Tribunal is reduced toRs.2,72,800/- from Rs.4,25,500/-. (ii) The interest at 7.5% is confirmed.(iii) Learned counsel for the appellant seeks eightweeks time to deposit the award amount and the same is allowed.On such deposit, the claimant is entitled to withdraw the same.(iv) There shall be no orders as to costs.(v) Consequently, M.P.No. 1 of 2008 is closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ raToThe Motor Accidents Claims Tribunal, Fast Track Court No.4, Coimbatore at Tiruppur.+1cc to Mr.N. Vijayaraghavan, Advocate Sr 60701+1cc to Mr.S.S.Swaminathan, Advocate Sr 60262JSV (CO)km/18.12. CMA No. 1749 of 2007