The National Insurance Co. Ltd.,Branch Office,88-F,Bye pass Road,Dharmapuri v. Thiru Durai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 17.12. 2008CORAM:- The Hon'ble Mr. Justice R. SUDHAKARC.M.A.No.1811 of 2008andM.P.No.1 and 2 of 2008The National Insurance Co. Ltd.,Branch Office,88-F,Bye pass Road,Dharmapuri .. Appellant/Respondent 2 Vs.1.Thiru Durai2. Smt.A.R.Prabhavathy .. Respondents/Claimant & Respondent 1 . . . Appeal filed under Section 173 of the M.V.Act against theaward and decree dated 11.09.2007 made in M.C.O.P No.743 of 2005 onthe file of the Motor Accidents Claims Tribunal, (I AdditionalDistrict Judge), Krishnagiri at Dharmapuri District. . . . For Appellant : Mr.J.ChandranFor respondents : Mr. A.Arivudainambi. . . J U D G M E N TThe Insurance Company has filed this appeal challengingthe award dated 31.07.2007 made in M.C.O.P No.743 of 2005 on thefile of the Motor Accidents Claims Tribunal, (I Additional DistrictJudge), Krishnagiri at Dharmapuri District.2. It is a case of injury. The accident in this casehappened on 09.06.2005 at about 16.00 hours. The injured claimantDurai, aged about 41 years, an agriculturist and also engaged inflower business was proceeding on a two wheeler along with oneSubramani as a pillion rider from Pethanur to Regadahalli, when hewas hit by a motor cycle bearing registration No.TN-29-E-1414,driven by its driver in a rash and negligent manner and insuredwith the appellant and in that accident, the said Durai suffered https://hcservices.ecourts.gov.in/hcservices/ fracture of left tibia bone and grievous injuries on the leftthigh. He was treated at Government Head Quarters Hospital atDharmapuri and thereafter taken to Manipal Hospital at Bangalorewhere he took treatment as in patient for 20 days from 10.06.2005to 18.06.2005 and then from 04.07.05 to 11.07.2005. and also25.9.2005 to 27.09.2005. In the course of hospitalisation, severalmedical proceedings were done. The injured filed a claim forcompensation in a sum of Rs.2,00,000/- stating that his income wasRs.10,000/- per month. 3. In support of the claim, the injured claimant wasexamined as P.W.1, one Subramani, Pillion rider was examined asP.W.2.One Venkatesan was examined as P.W.3 and Dr. Gandhi wasexamined as P.W.4. Documents were marked as Exs.P.1 to P.18. Nooral or documentary evidence was let in on behalf of theappellant/respondent before the Tribunal.4. As far as the finding of negligence on the part of thedriver of the motor cycle and the liability fixed on the InsuranceCompany appellant to compensate the claimant is not disputed.Accordingly, the said finding is confirmed.5. As far as the quantum of compensation is concerned,the Tribunal based on the disability assessed at 40% under Ex.P15,and also taking note of the other medical records relating to thetreatment given on various occasions, adopted the multipliermethod and granted the following amounts as compensation withinterest at 7.5%.Sl.No. AwardAmount granted bythe Tribunal1Loss of earning capacity due topermanent disability of 40%Rs. 2,16,000/-2.Partial loss of earningsRs. 3,000/- 3Pain and suffering Rs 10,000/- 4Medical expensesRs, 1,06,489/-5Transport expensesRs. 13,500/-6Extra NourishmentRs. 5, 000/- 7 Attendant charges Rs, 2, 000/-TotalRs. 3,55,989/- 6. Learned counsel for the appellant pleaded that thetotal compensation in this case is excessive as the Tribunaladopted the multiplier of 15 and therefore, the award amount hasto be reduced. https://hcservices.ecourts.gov.in/hcservices/

7. Learned counsel for the claimant, on the other hand,produced copies of discharge summaries for having taken treatmentat Manipal Hospital and stated that there was prolonged medicalproceedures done to the claimant and therefore, his presentcondition is that he is totally unable to work and earn as beforeand therefore, reasonable compensation should be granted to him.Meagre amounts have been granted for pain and suffering and forloss of income during the period of treatment. Therefore, hejustified the award. 8. The Division Bench of this Court in United IndiaInsurance Co. Ltd., - vs. - Veluchamy and another (cited supra)sets out the parameters as to when the multiplier method can beadopted in the case of injury. In Paragraph 11 of the decisionreads thus:-"11. The following principles emerge from the abovediscussion:(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 factors suchas nature and extent of disablement, avocationof the injured and whether it would affect hisemployment or earning power, etc. and if so, towhat extent?(c) (1) If there is categorical evidencethat because of injury and consequentialdisability, the injured lost his employment oravocation completely and has to be idle for therest of his life, in that event loss of incomeor earnings may be ascertained by applying the'multiplier method' as provided under theSecond Schedule to Motor Vehicles 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 amputationand if there is evidence to show that there islikelihood of reduction or improvement infuture years, lesser period may be adopted forascertainment of loss of income.(d) Mainly it depends upon the avocationor profession or nature of employment being https://hcservices.ecourts.gov.in/hcservices/ attended by the injured at the time ofaccident."9. In this case, the injured claimant, an agriculturist,aged 43 years has undergone successive medical treatment atdifferent hospitals and took treatment as in patient for 20 days,which is supported by EXs.P.2 to P.5. The income of the injuredclaimant was fixed as Rs.3,000/- per month by the Tribunal. Thedisability assessed at 40% by the doctor. Now, the learned counselfor the claimant stated that he is unable to work and earn asbefore. However, the possibility of getting income by othersources by the injured claimant has to be considered. As pointedout by the Division Bench, (cited supra) the multiplier as in thecase of death, cannot be applied to the case of injury. Consideringall these factors and the fact that the injured claimant is gettinglumpsum amount pursuant to the accident, the multiplier 10 asagainst 15, can be adopted. Therefore, the total pecuniary losswill be Rs.3,000/- X 12 = Rs. 36,000 X 40/100 X 10 = Rs.1,44,000/-The claimant will be entitled to a further sum of Rs.10,000/- forpain and suffering, totally Rs.20,000/-. For attendant charges, heis entitled to Rs.5,000/- instead of Rs.3,000/- granted by theTribunal. Towards extra nourishment, he is entitled to a furthersum of Rs.5,000/- totalling to Rs.10,000/- For loss of incomeduring the period of treatment, the claimant is entitled toRs.9,000/- The amounts granted for medical expenses and Transportcharges are stands confirmed. In all, the award is modified andthe claimant is entitled to the amounts as follows: Sl.No. AwardAmount granted bythe TribunalAmount grantedby This Court1Loss of earningcapacity due topermanentdisability of 40%Rs. 2,19,000/-Rs. 1,44,000/-2.Loss of incomeduring thetreatmentRs. 3,000/- Rs. 9,000/- 3Pain and suffering Rs 10,000/- Rs 20,000 /-4Medical expensesRs, 1,06,489/-Rs 1,06,489/-5Transport expensesRs. 13,500/-Rs. 13,500/-6Extra NourishmentRs. 5,000/- Rs. 10,000/- 7 Attendant charges Rs, 2, 000/-Rs, 5,000/-TotalRs. 3,55,989/- Rs. 3,07,989/- https://hcservices.ecourts.gov.in/hcservices/ Since the accident in this case happened in the year 2006 and theaward was passed in the year 2007, the interest granted at 7.5% bythe Tribunal stands confirmed. 10. In the result, the Civil Miscellaneous Appeal isallowed in part as follows:i. The award amount is reduced to Rs.3,07,989/- fromRs.3,55,989/- ii. The rate of interest at 7.5% granted by the Tribunalis confirmed.iii. . Learned counsel for the appellant seeks eightweeks' time to deposit the entire amount and isgranted. On such deposit, the claimant is permitted towithdraw the amount as per the order of this Court. Theappellant is permitted to withdraw the excess amountafter settling the claimant.iv. Connected miscellaneous petitions are closed. v. No costs. PALSd/Asst.Registrar/true copy/Sub Asst.RegistrarToThe Motor Accidents Claims Tribunal,I Addl.Dist.Judge,Krishnagiri at Dharmapuri District+ 1 cc to Mr. J. Chandran, Advocate SR No.70901+ 1 cc to Mr. P. Arivudainambi, Advocate SR No. 71089 CMA No. 1811 of 2008VSV(CO)SR/28.1.2009