M/S.New India Assurance Co.Ltd. v. R.Tamilarasan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:20.11. 2008CORAM:- Hon'ble Mr. Justice R. SUDHAKARC.M.A.No.3536 of 2008and M.P.No.1 of 2008M/S.New India Assurance Co.Ltd.,Thiruchengode .. Appellant/ 2nd respondent Vs.

R.Tamilarasan2.Rajkumar .. Respondents/ Petitioner and ISt Respondent Appeal filed under Section 173 of the M.V.Act against theaward and decree dated 22.04.2008 in MCOP No.334 of 2005 on the fileof the Motor Accidents Claims Tribunal,(Subordinate Court), Sankari. For Appellant : Mr. J.chandranFor respondents : Mr.T.Hari Ramachandran (R1/ Caveator) (2nd Respondent set exparte in MCOP)JUDGMENTThe Insurance Company has filed this appeal challengingthe award dated 22.04.2008 in MCOP No.334 of 2005 on the file ofthe Motor Accidents Claims Tribunal,(Subordinate Judge), Sankari.

It is a case of injury. The accident, in this case, happened on 19.04.2005. The injured – Claimant Tamilarasan, agedabout 23 years, and working as a Sales Manager was ridingT.V.S.Suzuki Motor cycle. The said Motor Cycle was hit by aMahindra Van bearing Registration No.TN-30-Y-234, insured with theappellant. Due to rash and negligent driving on the part of thedriver, the injured claimant suffered grievous injuries all over thebody, particularly, on the right hip and right thigh. He claimed asum of Rs.5,00,000/- as compensatin. https://hcservices.ecourts.gov.in/hcservices/

In support of the claim, the Claimant was examined asP.W.1 and one Parameswaran was examined as P.W.2 and Dr.Muthusamywas examined as P.W.3. Documents Exs.P.1 to P.9 were marked. Ex.P.1is the copy of the First Information Report. Ex.P.2 is the copy of Wound Certificate. Ex.P.3 is the Medical Certificate. Ex.P.4 is themedical bills. Ex.P.5 is the X-ray. Ex.P.6 is the driving licence ofthe petitioner/Claimant. Ex.P.7 is the salary Certificate of thepetitioner/Claimant. Ex.P.8 Disability Certificate. Ex.P.9 is the X-ray. No oral or documentary evidence was let in on the side of theappellant/respondent before the Tribunal.

As far as the medical treatment is concerned, Theinjured Claimant was treated in the Government hospital at Edapadi. Ex.P.2 is the Wound Certificate and Ex.P.3 is the medicalCertificate and Ex.P.4 is the Medical Bills. The income of theinjured claimant is stated to be Rs.5,000/- under Ex.P.7 - the Salary Certificate of the claimant. Ex.P.8 is the disabilityCertificate. Doctor assessed the disability at 35%. TheTribunal, however, fixed the income of the Claimant at Rs.4,000/-per month, considering the nature of employment. Thereafter, the Tribunal adopted 16 multiplier and determined the pecuniary loss inrespect of the 35% disability as follows: Rs.4,000 X 12 X 16 = Rs.7,68,000/- X 35/100 = Rs.2,68,8,00/- The Tribunal also grantedcompensation under conventional heads. In all, the Tribunal grantedthe following amounts as compensation with interest at the rate of7.5%.Sl.No.HeadAmount grantedby the Tribunal1Pecuniary loss disabilityRs. 2,68,800/-2Loss of income during treatment Rs. 8,000/-3Medical expensesRs . 27,918/-3Future medical expenses Rs. 10,000/-4Pain & Suffering, Rs. 5,000/-Extra nourishmentRs 3,000/-6.Transport expenses Rs 2,000/-TotalRs. 3,24,718/- 5. Learned counsel for the appellant pleaded that the Tribunal adopted multiplier of 16 in the case of injury, whichhappened in the year 2005 comparing it with that of a case of fatalaccident. But, in this case, after 2005, there was no medicalrecords to show that the disability is continuing for the rest ofhis life. Therefore, the compensation based on multiplier ischallenged. https://hcservices.ecourts.gov.in/hcservices/

Learned counsel for appellant fairly submitted thatthe deformity in the right hip and other injuries will affect theearning capacity of the injured claimant, a salesman, to earn asbefore. But, it is contended that the multiplier as in the case ofdeath need not be adopted in this case. He relied upon a decision ofthis Court in the case Insurance Co. Ltd., - vs. - Veluchamy andanother (cited supra) wherein the Division Bench sets out theparameters as to when the multiplier method can be adopted in thecase of injury. In Paragraph 11 of the decision reads 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 the SecondSchedule 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 avocation orprofession or nature of employment beingattended by the injured at the time ofaccident. "

Learned counsel for the claimant, on the other hand, submitted that the total compensation awarded for a 24 years oldinjured Salesman by the Tribunal is a meagre amount and no amounthas been granted for attendant charges. Meagre amount has beengranted for extra nourishment and for pain and suffering. https://hcservices.ecourts.gov.in/hcservices/

In view of the Division Bench decision of this Court in Veluchamy's case (cited supra) the higher multiplier of 16 as in thecase of fatal accidents, cannot be adopted in the case of injury asis done in this case. In the present case, there is deformity inthe right hip due to the injury and the claimant suffered laceratedinjury in the right thigh and abrasions in the right knee andmultiple injuries all over the body. The disability has beenassessed at 40% by the Doctor and it was modified to 35% by the Tribunal. The earning capacity of the claimant is not lostcompletely. In this case, there is material to hold that consequentto the disability assessed at 35%, there will be loss of earningcapacity. The claimant qualifies for compensation by adoptingmultiplier method. However, the multiplier as in the case of deathcannot be applied to the present case. The Tribunal erred inadopting 16 multiplier, in view of the age of the injured claimant.

In the result, the Civil Miscellaneous Appeal is partlyallowed as follows:i) The award of the Tribunal is reduced to2,55,418/- from Rs.3,24,718/-. ii) The interest granted by Tribunal at 7.5% isconfirmed. iii) The learned appearing for the appellantseeks eight weeks' time to deposit the amountand the same is allowed. On such deposit, theclaimant will be entitled to withdraw the same.iv)Excess amount in deposit, if any, shall bewithdrawn by the appellant with accrued interest.v) There shall be no order as to costs. vi) Connected miscellaneous petition is closed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.PAL https://hcservices.ecourts.gov.in/hcservices/ ToThe Motor Accidents Claims Tribunal/SubCourt, Sankari1 cc to Mr.J. Chandran, Advocate, Sr. 648371 cc to Mr.T. Hari Ramachandran, Advocate, Sr. 64819 CMA No. 3536 of 2008DM (CO)kk 28/1