United India Insurance Co.Ltd.,Tindivanam v. Lenin

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 24.10.2008CoramThe Honourable Mr. Justice R.SUDHAKARC.M.A.No.3225 of 2008 and M.P.No.1 of 2008 United India Insurance Co.Ltd.,Tindivanam.. Appellant/IInd Respondentvs.1.Lenin2.Radha.. Respondents/Petitioner/1st Respondent Civil Miscellaneous Appeal is filed under Section 173 of MotorVehicles Act 1988, against award and decree dated 29.06.2007MCOP.No.209/06 on the file of the MACT (Sub-Court) at Dharmapuri.For Appellants : Mr.T.RavichandranFor R1: Mr.M.Selvam, P. Malliga JUDGMENTThe Insurance Company has filed this appeal, challenging the awardand decree dated 29.06.2007 MCOP.No.209/06 on the file of the MACT (Sub-Court) at Dharmapuri. 2. It is the case of injury. The accident in this case happened on29.9.2004. The injured claimant Lenin, said to be 18 years old isemployed as a coolie was travelling in a TVS Moped as a pillion rider.At that time a lorry insured with the appellant driven by its driver ina rash and negligent manner hit the two wheeler and in that accident,the said Lenin suffered multiple injuries. He was taken to Governmenthospital, Uthangarai and was treated as inpatient. A complaint wasregistered against the driver of the lorry. https://hcservices.ecourts.gov.in/hcservices/

3. In the accident it is stated that the claimant sustaineddislocation of the right leg joint and fracture of the right leg. Healso suffered other abrasion and lacerated injury. In support of theclaim, the claimant was examined as P.W.1 and doctor was examined asP.W.2. Ex.A.1, First Information Report dated 29.9.2004, Ex.A2,Copy of the Accident report dated 22.10.2004, Ex.A3, Copy of theInsurance certificate, Ex.A4, permanent disability certificate dated28.2.2007 and Ex.A.5, x-ray report were marked on behalf of theclaimants. No oral or documentary evidence was let in on behalf of theappellant/respondent before the Tribunal.4. The finding of negligence on the part of the driver of thelorry which caused accident and the liability of the insurance companyto compensate the company is not in dispute. No such plea was raised bythe counsel for the appellant. 5. The only contention raised by the counsel for the appellant ison the quantum of compensation. The issue relating to compensation wasdecided by the Tribunal in paragraph 7 in answer to issue No.2. The ageof the claimant is said to be 18 years and it is not in dispute. Theincome of Rs.3,000/- claimed is also not in dispute. The disability isassessed at 25% by the doctor in Ex.A4. The Tribunal in this case fixedthe loss of income based on the disability assessed at 25% by applyingmultiplier '18'. The total loss of income to the claimant was fixed atRs.1,08,000/-. The following amounts were granted with 7.5% interest.Loss of income dueto disability-Rs.1,08,000/-Pain and suffering-Rs. 35,000/-Medical Expenses-Rs. 20,000/-Future medical expenses-Rs. 15,000/-Loss of Happiness-Rs. 15,000/-Extra Nutrition-Rs. 4,000/-Transport-Rs. 2,000/-Other Expenses-Rs. 2,000/- Thus, a total sum of Rs. 2,01,000/- was granted as compensationwith interest at the rate of 7.5%. 6. Learned counsel for the appellant contended that the presentcase does not qualify for adopting the multiplier method. He has alsostated that once compensation is granted for pain and suffering then thesum of Rs.5000/- granted for loss of happiness is not justified. 7. Heard the learned counsel for the respondents/claimants, whostated that the injured claimant, is 18 years old coolie and he was inhospital for a period of one month. He stated that the claimant cannotwork as a coolie as before and due to the fracture of the knee, hecannot lift weight. His earning capacity is very much affected.Therefore, suitable compensation should be granted at least for the https://hcservices.ecourts.gov.in/hcservices/ disability assessed. He relied upon the Division Bench Judgementreported in 2005 ACJ 1483 = 2005(1) CTC 38 = 2005(1) TN MAC 87 (DB)(United India Insurance Co. Ltd., v. Veluchamy and another). Paragraph11 of the decision is as follows:(a) In all cases of injury or permanent disablement'multiplier method' cannot be mechanically applied toascertain the future loss of 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 employment orearning power, etc. and if so, to what extent?(c) (1) If there is categorical evidence thatbecause of injury and consequential disability, theinjured and consequential disability, the injuredlost his employment or avocation completely and hasto be idle for the rest of his life, in that eventloss of income or earnings may be ascertained byapplying the 'multiplier method' as provided underthe Second Schedule to Motor Vehicles Act, 1988.(2) Even 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 attended bythe injured at the time of accident."8. In this case, there is no finding by the Tribunal that by thenature of injury suffered by the injured claimant, his earning capacityand employment is totally affected. There is no finding that thedisablement in this case assessed by the doctor is such that his earningcapacity is lost for the rest of his life. There is no material to showthat the injured claimant will be idle for the rest of his life andconsequently, there will be total loss of income. Therefore, thequestion of applying multiplier method in this case does not arise asthe parameters of paragraph 11 of the Division Bench of this Court inUnited India Insurance Co. Ltd., v. Veluchamy and another reported in2005 ACJ 1483 are not attracted to the facts of the present case. Themultiplier method adopted by the Tribunal, therefore, clearly is anerror. Accordingly, the compensation granted based on multiplier methodcannot be justified. https://hcservices.ecourts.gov.in/hcservices/

9. Therefore, a sum of Rs. 1.08.000/- as compensation based on 18multiplier is set aside as also the sum of Rs.15,000/- for loss ofhappiness. However the compensation based on the disability assessed at25% is granted and the award is modified and the claimant is entitledto compensation as follows:HeadsAmount Awarded byTribunalModified AwardFor disability assessedat 25%NILRs. 45,000Loss of incomeRs.1,08,000/-NILLoss of happinessRs.15,000/-NILPain and sufferings Rs.35,000/-Rs.35,000/-Medical expenses Rs.20,000/- Rs.20,000/- Medical expensesincluding physiotherapy NIL Rs. 15000/-Transport to hospitalRs.2000/-Rs. 5000/-Extra nourishment Rs.4000/- Rs. 7500/-Other expensesRs.2000/-NILAttendant Charges NIL Rs.3000/- TotalRs.2,01,000/-Rs.1,30,500/-10. In the result quantum of compensation stands reduced toRs.1,30,500/- from Rs.2,01,000/-. The interest of 7.5% per annumgranted by the Tribunal is confirmed since the accident happened in theyear 2004 and the award was passed in the year 2007. The appellant seekseight weeks time to deposit the amount and such deposit the claimant isentitled to withdraw the amount as per the order of this Court. Civil Miscellaneous Appeal is ordered on the above terms. Nocosts. Consequently, connected miscellaneous petition is closed.Sd/Asst.Registrar/true copy/Sub Asst.Registrarkua https://hcservices.ecourts.gov.in/hcservices/ ToMotor Accidents Claims Tribunal (Sub-Court) at Dharmapuri.1 cc To Mr.T.Ravichandran, Advocate, SR.69955.1 cc To Mr.M.Selvam, Advocate, SR.59615.C.M.A.No.3225 of 2008 RSM(CO)RVL 12.12.2008