G. Lakshmanan v. K. Kannan2. The United India Insurance Co. Ltd., 38, Anna Salai, Chennai-2

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 02.11.2006CORAMTHE HONOURABLE MR. JUSTICE F.M. IBRAHIM KALIFULLAC.M.A.No. 1092 OF 2001G. Lakshmanan... Appellant (Petitioner)Vs.1. K. Kannan2. The United India Insurance Co. Ltd., 38, Anna Salai, Chennai-2.... Respondents(Respondents) Civil Miscellaneous Appeal under section 173 of MotorVehicles Act 1988 filed against the judgment and decree dated23.1.2001 and made in M.C.O.P.No.2623/98 on the file of the IV SmallCause Court, Chennai/Motor Accident Claims Tribunal, Chennai.For Appellant : Mr. Surya for M/s Anand & SUryaFor Respondents : Mr. D. BhaskaranNo.2 J U D G M E N TThe claimant is the appellant. The challenge is to the awardof the Motor Accident Claims Tribunal, Chennai dated 23.1.2001 passedin M.C.O.P.No.2623/1998. According to the appellant, on 3.6.1998 at10.00 a.m., he was driving his autorickshaw bearing RegistrationNo.TN-07-1751 in R.K.Shanmugam Salai from south to north when theambassador car belonging to the first respondent bearing RegistrationNo.TSB-2140 coming in the opposite direction driven by his driver in arash and negligent manner hit against the appellant's autorickshaw andin that accident, the appellant sustained grievous injuries. Heclaimed a compensation of Rs.2 lakhs as against the respondents. Theclaim was resisted by the second respondent contending that theaccident occurred due to the negligence of the appellant and that hedid not sustain grievous injuries. Before the Tribunal, the appellantexamined himself as P.W.1 and examined the Doctor as P.W.2. Exs.P1 toP6 were marked. On the side of the respondents, none were examined aswitnesses and no documents were marked. The appellant in his evidencestated that due to the injuries sustained by him in the accident, heis unable to carry on his avocation. P.W.2 Doctor has stated in hisevidence based on Exs.P4 and P5 that the injuries sustained by theappellant on his hip and legs and the shortening of one leg hasresulted in 60% disability. The Tribunal granted a sum of Rs.15,000/- https://hcservices.ecourts.gov.in/hcservices/ towards loss of earning after the accident, a sum of Rs.1000/- towardstransport expenses, a sum of Rs.2000/- towards extra nourishment, asum of Rs.5000/- for medical expenses and another sum of Rs.5000/- forpain and suffering. For disablement and loss of future earnings, theTribunal granted a sum of Rs.60,000/- and Rs.10,000/- respectively. Inall, a sum of Rs.98,000/- came to be awarded by the Tribunal. 2. In this appeal, Mr.Surya, learned counsel appearing forthe appellant confined his arguments to the grant of benefit under thehead disability and loss of earnings. According to the learnedcounsel, even though the appellant in his claim petition, claimed asum of Rs.75,000/- and Rs.42,000/- respectively, on the above twoheads, having regard to the legal position that the Court always grantjust compensation depending upon the nature of disablement suffered,which had resulted in the loss of future earnings, the appellantshould be awarded the relief of loss of future earnings by applyingthe multiplier theory as that alone would meet the ends of justice.3. Mr.D. Bhaskaran, learned counsel appearing for the secondrespondent on the other hand contended that in the case on hand, thenature of injuries sustained by the appellant cannot be held to be acase where the appellant has lost his avocation once and for all inorder to apply the multiplier theory provided under the secondschedule to the Motor Vehicles Act. Learned counsel contended that atbest, the appellant can only be granted the sum of Rs.42,000/- asclaimed by him towards loss of earning capacity instead of Rs.10,000/-granted by the Tribunal. 4. The learned counsel for the appellant in the course ofhis submissions, relied upon the decisions reported in 2005 (1) CTC38 (UNITED INDIA INSURANCE COMPANY LTD., VS. VELUCHAMY) and 2003 ACJ1298 (P. KALAVATHI VS. G. MURALI AND ANOTHER).5. In support of his submissions, the learned counsel forthe second respondent placed reliance upon the decision reported in2006 (4) CTC 433 (CHOLAN ROADWAYS CORPORATION LTD., VS. AHMED THAMBI)for the proposition that in the event of the loss of earning capacitybeing assessed by applying the multiplier theory, the appellant willnot be entitled to have a separate assessment by way of permanentdisability. 6. After hearing the learned counsel for the respectiveparties and on a perusal of the decision relied upon by the learnedcounsel for the second respondent reported in 2005(4) CTC 433(CHOLAN ROADWAYS CORPORATION LTD., VS. AHMED THAMBI) in particularparagraph 19, in the said judgment, it will have to he held that whenloss of earning capacity is compensated along with the non-pecuniarylosses, there cannot be a separate assessment for payment ofcompensation under the heading "permanent disability". Paragraph-19 of https://hcservices.ecourts.gov.in/hcservices/ the judgment is to the following effect." 19. In order to avoid any future confusion and tobring more clarity and transparency in the award ofdamages, it is necessary that the Tribunal, whileawarding damages, should itemise the award undereach of the head namely, pecuniary losses and non-pecuniary losses. In the non-pecuniary losses theTribunal shall consider; (a) pain and suffering,(b) loss of amenity, (c) loss of expectation oflife, hardship, mental stress, etc., (d) loss ofprospect of marriage and under the head pecuniarylosses, the Tribunal shall consider loss of earningcapacity and loss of future earnings as onecomponent apart from medical and other expenses andloss of earning, if any from the date of accidenttill the date of trial. When loss of earningcapacity is compensated as also the non-pecuniarylosses under (a) to (d), permanent disability neednot be separately itemised. The reference isanswered accordingly. C.M.A. No.231/94 be placedbefore the single Judge for final disposal in thelight of our answer to the reference. (emphasisadded)"7. When the submission of the learned counsel for theappellant based on the Division Bench judgment reported in 2005(1) CTC38 (UNITED INDIA INSURANCE COMPANY LTD., VS. VELUCHAMY) isconsidered, the Division Bench has laid down in paragraph-11 as to theprinciple for applying the multiplier method in the case of thepermanent disablement. Paragraph-11 is relevant for the purpose ofthis case, which reads as under:" 11. The following principles emerge from theabove discussion:(a) In all case of injury or permanent disablement"multiplier method" cannot be mechanically appliedto ascertain the future loss of income or earningpower.(b) It depends upon various factors such as natureand extent of disablement, avocation of the injuredand whether it would affect his employment orearning power etc., and if so, to what extent ?(c) (1) If there is categorical evidence thatbecause of injury and consequential disability, theinjured lost his employment or avocation completelyand has to be idle till the rest of his life, inthat event loss of income or earning may beascertained by applying "multiplier method" asprovided under Second Schedule to the Motor https://hcservices.ecourts.gov.in/hcservices/ Vehicles Act, 1988.(2) Even if so there is no need to adopt the sameperiod as that of fatal cases as provided under theSchedule. If there is no amputation and if there isevidence to show that there is likelihood ofreduction or improvement in future years, lesserperiod may be adopted for ascertainment of loss ofincome. (d) Mainly it depends upon the avocation orprofession or nature of employment being attendedby the injured at the time of accident."8. From a reading of the principle set out in the saidparagraph, it can be safely held if there is a categoric evidence thatbecause of the injury and consequential disability, the injured personlost his employment or any other avocation totally and he has to beidle till the rest of his life or if by virtue of such injury, thereis likelihood of reduction or improvement in future years, lesserfactor of multiplier can be adopted for ascertainment of loss ofincome. In the case considered by the Division Bench, the injured hassuffered a permanent disablement and the relevant paragraph-14 readsas under:" ..................... ...................... ..................... ..................... ....................... .................. ...................He came to know that a neurology operation hasbeen done. After thorough examination, he concludedthat his right thigh, right leg, right hip lost itsvalue and right leg shortened by 4 cm. than that ofthe left leg. He also noticed that there isrestriction of right knee movement. According tohim, it would be difficult for him to sit, stand orattend to the nature's call and there is apossibility of the injury being worsened and alsogot further damaged in the operated portion.Ultimately, he assessed his disability to theextent of 49 per cent. The disability certificatehas been marked as Ex.P8 and X-ray as Ex.P9. Incross-examination, he once again asserted andreiterated the same thing which he deposed in thechief examination. It is clear from the evidence ofthe injured claimant-P.W.1 and Dr.P.W.2 as well asExs.P2 to P4, P8 and P9 that the claimant being thevan driver, cannot drive the same as he was doingprior to the accident."9. Similarly, in the other Division Bench decision reportedin 2003 ACJ 1298 (P. KALAVATHI VS. G. MURALI AND ANOTHER), the victim https://hcservices.ecourts.gov.in/hcservices/ was 37 years old female tailor by profession, who sustained compoundfracture in her right leg. The Division Bench took the view that byvirtue of the nature of injury namely, compound fracture of the rightleg (tibia) to a person, who is a tailor by profession, it will haveto be held that such a permanent disablement would deprive the victimof the chances of continuing the avocation in the future years. Soholding, the Division Bench held that the multiplier method will haveto be adopted for assessing the loss of earning. 10. In the light of the above principles set down in the inthe above referred to Division Bench decisions, when the case on handis examined, I find that the evidence of P.W.2 based on Exs.P4 and P5read along with the evidence of P.W.1 himself stating that he is notin a position to continue his avocation subsequent to the accident, itwill have to be held that the claim of the appellant meritsacceptance. I have also perused Exs.P4 and P5, which disclose that theappellant suffered a severe fracture in his right hip as well as histhigh, which has been set right with the aid of plates and stings andP.W.2 has also certified because of the multiple fracture sustained bythe appellant in his right hip and thigh, the movement of the said leghas been restricted to an extent of 20 degrees and that he cannot foldhis leg and sit. As far as the injury to the left leg is concerned,here again, the oral and documentary evidence disclose that on theleft leg, the appellant had suffered fracture in both the bones, theknee and that after the treatment, there was mal union in thefractured bones. Further, because of the mal union, the left leg saidto have been shortened to an extent of 1 cm. Indisputably, theappellant was an auto driver. Having regard to the nature of hisavocation viz-a-viz the injuries sustained by him, which has beenfully described by the medical evidence both oral and documentary,disability of which has been assessed at 60%, it can be safelyconcluded that the appellant will not be able to continue his previousavocation as before. Inspite of the injuries having been cured, it maybe that the appellant can carry on some other light jobs. It isneedless to state that for driving an autorickshaw, the appellantwould definitely need strong legs as otherwise it will be difficultfor the appellant to handle the autorickshaw, which is a publiccarrier for carrying passengers. Therefore, the principle set out bythe Division Bench decisions reported in 2005(1) CTC 38 (UNITED INDIAINSURANCE COMPANY LTD., VS. VELUCHAMY) as well as the one reported in2003 ACJ 1298 (P. KALAVATHI VS. G. MURALI AND ANOTHER) squarelyapplies to the facts of the present case. In the decision reported in2005(1) CTC 38 (UNITED INDIA INSURANCE COMPANY LTD., VS. VELUCHAMY),the Division Bench has also held in paragraph-20 that it is thesettled legal position that if there are materials, it would be opento the Tribunal/Court to grant higher compensation than that of theamount claimed. Therefore, even though the appellant in his claimpetition, claimed only a sum of Rs.75,000/- towards permanentdisability and another sum of Rs.42,000/- for loss of earning power, https://hcservices.ecourts.gov.in/hcservices/ applying the principle set out in the Full Bench decision reported in2006(4) CTC 433, paragraph-19, the claim on both heads can be clubbedas one to be assessed for the loss of earning capacity by applying themultiplier method. 11. The appellant was aged 31 years at the time of hisaccident. As per the findings of the Tribunal, the appellant wasearning a sum of Rs.3000/- per month. In the decision reported in 2005(1) CTC 38, for applying the multiplier method, the Division Benchheld that the claimant's scope of engaging himself in some other lightjob as well as certain amount towards his personal expenses can betaken into account. Following the same, the case on hand even thoughit can be held that the appellant will not be in a position to carryon his previous avocation of autorickshaw driver, having regard to thefact that the injuries have been healed he can engage himself in someother light job and earn some amount, though not to the full extentto the sum of Rs.3000/-, as said to have been earned by him per monthas an autorickshaw driver and since the appellant was 31 years at thetime of accident, the multiplier factor can be safely fixed at 10.Having regard to the fact that there is scope for the appellant toearn his livelihood by engaging himself in some other jobs at least1/3rd of whatever he would have earned can be deducted towards hispersonal expenses. On that basis, if the compensation towards loss ofincome is assessed, the same can be assessed as below. Rs.3000/- Rs.1000/- = 2000 x 12 x 60 x 10 ------------ ---------------------- = 1,44,000/=10012. Accordingly, while setting aside the award of theTribunal in so far as it relate to the grant of Rs.60,000/- towardspermanent disability and a sum of Rs.10,000/- towards loss of futureearning, both the above referred claims are clubbed together under thehead of loss of earning capacity and assessed at a sum ofRs.1,44,000/- over and above the relief granted on other heads by theTribunal. https://hcservices.ecourts.gov.in/hcservices/

13. In view of the modification in the compensation awardedtowards loss of earning capacity, the second respondent shall depositthe difference with 9% interest from the date of claim, till the dateof deposit into the Tribunal. On such deposit being made, the Tribunalshall disburse the same to the appellant with accrued interest. Theappeal stands partly allowed.kbSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo The Motor Accident Claims Tribunal, IV Small Cause Court, Chennai Chennai.1 CC TO M/S ANAND AND SURYAS, SR 517491 CC TO MR.D. BHASKARAN, ADVOCATE SR 51739CMA.No.1092 of 20012.11.2006MM(CO)BP