The United India Insurance Company Ltd., rep. By its Branch Manager, 231 J.N. Street, Pondicherry v. J. Ramesh Babu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 15.4.2009CORAM:THE HONOURABLE MR JUSTICE R. SUDHAKARC.M.A.No. 1751 of 2008The United India Insurance Company Ltd.,rep. By its Branch Manager,231 J.N.Street,Pondicherry. ..Appellant/3rd RespondentVs.1. J. Ramesh Babu2. S. Velumayil3. A. Syed Arief Maricar ..Respondents/Petitioner/ Respondents 1 & 2 Appeal filed under Section 173 of M.V. Act against the order anddecree dated 31.1.2008 passed in MCOP No. 87 of 2007 on the file ofthe Motor Accident Claims Tribunal (Additional District Judge ),Karaikkal, Pondicherry District. For Appellant : Mr. J. Chandran For Respondents : Mr. Sai Bharath and Ilan - R1No Appearance – R2 & R3 JUDGMENTInsurance company has filed this appeal challenging theaward dated 31.1.2008 passed in MCOP No. 87 of 2007 on the file ofthe Motor Accident Claims Tribunal (Additional District Judge),Karaikkal, Pondicherry District.2. The accident in this case happened on 6.9.2006 onBharathi road Karaikkal. The injured claimant Ramesh Babu, 42 yearsold, owner of an engineering company, was travelling on a TVS 50moped when he was bit by another TVS 50 moped insured with theappellant insurance company. In that accident, he suffered grievousinjuries to the shoulder and on other parts of the body. He wastreated at Sugam Priya Hospital, Karaikkal and thereafter at Nambinursing home and research center, Chengalpattu. He underwent asurgery on 9.9.2006 and was discharged on 17.9.2006. He was takingphysiotherapy at Sugam Priya Hospital, Karaikkal. Stating that his https://hcservices.ecourts.gov.in/hcservices/ income was Rs.20,000/- p.m., he claimed a sum of Rs.3,00,000/- ascompensation. 3. In support of the claim, the injured claimant wasexamined as P.W.1. and the Dr.L. Gopikrishnan, was examined asP.W.2. Documents Exs. A1 to A27 were marked. The relevant documentsare Exs.A4 to A16 which includes the details of the medicaltreatment as well as the income and nature of the occupation of theinjured claimant. The disability has been assessed at 10% underEx.A27. He also filed income tax certificate form for the relevantassessment year stating that his income was Rs.1,05,000/- p.a. 4. The finding of negligence on the part of the rider ofthe offending vehicle and the liability of the appellant insurancecompany to compensate is not disputed. Such finding of the Tribunalis confirmed.5. The only contention raised by the learned counsel forthe appellant is on the quantum of compensation. The Tribunal applied15 multiplier and by taking the income as Rs.1,05,500/-p.a., for thedisability assessed at 10% fixed the loss of income as Rs.1,58,250/-.In addition, the Tribunal granted compensation on other heads. Inall, the Tribunal granted the following amount as compensation withinterest at the rate of 7.5% p.a.Sl.No.HeadAmount granted by theTribunal1Loss of income due to disabilityRs. 1,58,250/-2Pain and sufferingRs. 5,000/-3Partial loss of incomeRs. 27,375/-4Extra nourishmentRs. 2,000/-5Damages to clothsRs. 1,000/-6Medical expensesRs. 28,882/-7Transport expensesRs. 6,400/-TotalRs. 2,28,907/-6. In appeal, the learned counsel for the appellantcontended that the Tribunal is not justified in applying themultiplier method when the claimant has not suffered any loss in thebusiness due to injury so as to grant higher compensation based onthe multiplier method. 7. He relied on the decision of the Division Bench of thisCourt in United India Insurance Co. Ltd., - vs. - Veluchamy andanother reported in 2005 ACJ 1483. https://hcservices.ecourts.gov.in/hcservices/

8. A Division Bench of this court in United IndiaInsurance Co. Ltd., - vs. - Veluchamy and another reported in 2005ACJ 1483, set out the principles as to when multiplier method shouldbe adopted in a case of injury. Para 11 which is relevant, reads asfollows:-"11. The following principles emerge from theabove discussion:(a) In all cases of injury or permanentdisablement 'multiplier method' cannot bemechanically applied to ascertain the future lossof income or earning power.(b) It depends upon various factors such asnature and extent of disablement, avocation of theinjured and whether it would affect his employmentor earning power, etc. and if so, to what extent?(c) (1) If there is categorical evidence thatbecause of injury and consequential disability,the injured lost his employment or avocationcompletely and has to be idle for the rest of hislife, in that event loss of income or earnings maybe ascertained by applying the 'multiplier method'as provided under the Second Schedule to MotorVehicles Act, 1988.(2) Even so there is no need to adopt thesame period as that of fatal cases as providedunder the Schedule. If there is no amputation andif there is evidence to show that there islikelihood of reduction or improvement in futureyears, lesser period may be adopted forascertainment of loss of income.(d) Mainly it depends upon the avocation orprofession or nature of employment being attendedby the injured at the time of accident."9. The learned counsel for the claimant on the other handpleaded that even if the multiplier method is not accepted, theclaimant will be entitled to just compensation for the disabilityassessed, loss of income during the period of treatment, pain andsuffering undergone by the claimant, extra nourishment and futuremedical expenses as well.10. Considering the evidence of the Doctor, which has beenrecorded by the Tribunal in detail and Ex.P5, accident register, itis clear that the injured claimant suffered grievous injuries and https://hcservices.ecourts.gov.in/hcservices/ simple injuries to the left femur. He was in two hospitals for sometimes. As per the evidence of the Doctor, the movement of the leftshoulder is restricted and painful. He cannot drive two wheeler andlift heavy weight. The movement of the joint is also restricted.11. Considering all these aspects, the disability has beenassessed at 10%. There is no dispute that the claimant is continuingthe business. Therefore, the Tribunal was not justified in adoptingmultiplier method as the parameter of para 11 of the Division Benchdecision cited above are not attracted to the facts of this case.However, considering the age of the injured claimant, period ofhospitalisation, nature of injury and the treatment given, theclaimant will be entitled to higher compensation for pain andsuffering. He is also entitled to higher compensation for extranourishment and for future medical expenses since he has to undergophysiotherapy consequent to the injuries suffered.12. There is no total loss of earning capacity to adopt themultiplier method. Considering all the aspects of the case, thecompensation granted by the Tribunal by applying multiplier method ina sum of Rs.2,28,907/- is set aside and the award stands modified asfollows:-Sl.No.HeadAmount grantedby the TribunalAmount grantedby this Court1Disability assessed at 10% ---Rs. 25,000/-2Loss of income due todisabilityRs. 1,58,250/- --Pain and suffering Rs. 30,000/-Rs. 30,000/-Extra nourishmentRs. 7,500/-Rs. 7,500/-Damage to clothsRs. 2,000/-Rs. 2,000/-Medical expensesRs. 29,000/-Rs. 29,000/-Transport expensesRs. 6,400/-Rs. 6,400/-Partial loss of incomeRs. 27,375/- ---Loss of income during theperiod of treatment ---Rs. 40,000/-Future medical expensesincluding physiotherapy ---Rs. 10,000/-Attender charges ---Rs. 7,000/-TotalRs.2,28,907/-Rs.1,56,900/- 13. Since the accident happened in the year 2006 and theaward was passed in the year 2008, the interest granted by theTribunal 7.5% p.a. stands confirmed. https://hcservices.ecourts.gov.in/hcservices/

14. In the result, the civil miscellaneous appeal ispartly allowed as follows:-(i) The award of the Tribunal stands reduced to Rs.1,56,900/-from Rs.2,28,907(ii) The award amount shall carry interest at 7.5% p.a.(iii) Learned counsel for the appellant seeks eight weeks timeto deposit the balance award amount and the same is allowed. On suchdeposit, the claimant is permitted to withdraw the amount as per theorders of this Court. (iv) Consequently, M.P.No. 1 of 2008 is closed.There shall be no orders as to costs.sd/-Asst.Registrar/true copy/Sub Asst.RegistrarraTo1. The Motor Accident Claims Tribunal, (Additional District Judge), Karaikkal, Pondicherry District.2. The Section Officer, V.R. Section, High Court, Madras.+ 1 c.c. to M/s. Sai Bharath, Advocate. S.R.No.14566.+ 1 c.c. to Mr. J. Chandran, Advocate. S.R.No.14529. CMA No.1751 of 2008RL (CO)GSK 11.06.2009.