The Oriental Insurance Co.Ltd. v. Murugesan @ Muruganantham

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:18.11.2008CORAM:- THE HON'BLE MR. JUSTICE R. SUDHAKARC.M.A.No.3554 of 2008and M.P.No.1 of 2008The Oriental Insurance Co.Ltd.,parimalam Complex,II Floor, E.V.N.Road,Erode, Erode District. ..Appellant/3rd Respondent Vs.1. Murugesan @ Muruganantham2. Rajendran3. M/S.Velavan Transports. ..Respondents/Claimant and Respondents 1 & 2 Appeal filed under Section 173 of the M.V.Act against theaward and decree dated 21.07.2006 in MCOP No.39 of 2004 on the fileof the Motor Accidents Claims Tribunal,(Additional District andSessions Judge - FTC.No.III), Dharapuram, Erode District. For Appellant : Mr. S.Arunkumar For Respondent-1 : Mr.M.A.P.ThangavelJUDGMENTThe Insurance Company has filed this appeal challengingthe award dated 21.07.2006 in MCOP No.39 of 2004 on the file of theMotor Accidents Claims Tribunal,(Additional District and SessionsJudge-FTC.No.III), Dharapuram.2. This is a case of injury. The accident, in this case,happened on 10.09.2000. The injured – Claimant Murugesan @ https://hcservices.ecourts.gov.in/hcservices/ Muruganantham, aged about 23 years, a building Contractor, wastravelling in the bus belonging to the third respondent M/S.VelavanTransports and insured with the appellant. Due to rash andnegligent driving of the driver of the bus, the said Murugesan wasthrown out of the bus. He sustained crush injury over the rightfoot resulting in the removal of four toes. He was taken to theGovernment Hospital for initial treatment and thereafter, he wastreated at L.K.M.hospital at Erode for 48 days as in patient. 3. The injured Murugesan stated that he is a buildingContractor earning Rs.4,000/- per month. For the injuries sustainedby him, he sought compensation in a sum of Rs.5,00,000/- 4. In support of the claim, the injured claimant wasexamined as P.W.1 and one Doctor Periasamy was examined as P.W.2.Documents were marked as Exs.P.1 to P.15. No oral or documentaryevidence was let in by the appellant/respondent before theTribunal. 5. The finding of the negligence on the part of thedriver of the car belonging to the third respondent and theliability fixed on the appellant to compensate the claimant is notdisputed. 6. The only contention raised by the appellant's counselis with regard to the quantum of compensation. The issue relatingto the compensation was decided by the Tribunal from paragraph 10onwards in answer to Point No.2. Due to the crush injury theclaimant was treated in two hospitals and he was in patient formore than 48 days and four toes were removed and surgicalprocedures were done to correct the same. Skin grafting was alsodone. Diagnosis according to the medical records is as follows:" Crush injury Rt.foot LC hands metatarsalamputation of steral 4 toes and communited fracture1st metatarsal bone compound communited fractureboth bones Rt.Left." 7. The income of the injured/claimant was fixed atRs.2,500/- per month as against Rs.4,000/- claimed. Based on thedisability assessed at 36% by adopting 17 multiplier and takingthe income of the injured-claimant at Rs.2,500/- per month, theTribunal determined the pecuniary loss as follows: 2500 X12=30,000/- X 17 X 36/100 = 1,83,600/-The Tribunal awarded amountson conventional heads also. In all, the Tribunal granted thefollowing amounts as compensation with interest at the rate of7.5%. https://hcservices.ecourts.gov.in/hcservices/ Sl.No.HeadAmount grantedby the Tribunal1Loss of earning capacity due to permanentdisabilityRs. 1,83,600/-2Medical expenses as per billsRs. 47,300/-3Future Medical expensesRs. 15,000/-4Pain & Suffering, Extra nourishment &Transport expensesRs. 54,100/-TotalRs. 3,00,000/- 8. The appellant's counsel contended that the Tribunalerred in adopting higher multiplier of 17. He relied on thedecision of a Division Bench of this Court in the case of UnitedIndia Insurance Co. Ltd., - vs. - Veluchamy and another reported in2005 ACJ 1483. As far as other amounts granted by the Tribunal areconcerned, there is no dispute according to the counsel forappellant. 9. Learned counsel for the respondent/claimant, on theother hand,pleaded that the award is just and reasonable and itdoes not require any reduction. 10. 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 income https://hcservices.ecourts.gov.in/hcservices/ or 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 beingattended by the injured at the time ofaccident." 11. In this case, there is no evidence to show that theinjured claimant, a building Contractor was so grievously injured,and so that he lost his earning capacity for the rest of his life.The higher multiplier of 17 as in the case of death, cannot beadopted in the case of injury. The claimant is, however, entitledto get compensation for loss of income in a sum of Rs.7,500/- forthe three months of treatment as in patient. He is also entitledto get Rs. 5,000/- towards attendant charges. A sum of Rs.54,100/-granted by the Tribunal for pain and suffering and for extranourishment, transport expenses is confirmed. A sum of Rs.15,000/-for future medical expenses granted by the Tribunal is confirmed asthe injured claimant need to undergo physiotherapy which is evidentby the nature of injury. Further a sum of Rs.47,300/- granted formedical expenses by the Tribunal is also confirmed as it issupported by document. The higher multiplier of 17 as in the caseof fatal accidents, cannot adopted in the case of injury. In thiscase, considering the possibility of earning by other means andalso the lump sum payment to be paid, lesser multiplier of 10 canbe taken. The compensation for pecuniary loss will beRs.2500/- p.m. X 12 = Rs.30,000/- p.a X 10 X 36/100 =Rs.1,08,000/-. Accordingly, the compensation granted by theTribunal is modified as follows:Sl.No.HeadAmount grantedby this Court1Loss of earning capacity due to permanentdisabilityRs. 1,08,000/-2Medical expenses as per billsRs. 47,300/-3Future Medical expensesRs. 15,000/-4Pain & Suffering, Extra nourishment &Transport expensesRs. 54,100/- https://hcservices.ecourts.gov.in/hcservices/ Sl.No.HeadAmount grantedby this Court5. Loss of income for three monthsRs. 7,500/- 6.Attendant chargesRs. 5,000/-TotalRs. 2,36,900/- Since the accident happened in the year 2000 and the awardwas passed in the year 2006, the rate of interest granted by theTribunal at 7.5% stands confirmed. 12. In the result, the Civil Miscellaneous Appeal is partlyallowed as follows:i) The award of the Tribunal is reduced to2,36,900/- from Rs.3,00,000/-. 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.RegistrarPALTo The Motor Accidents Claims Tribunal, (Additional District and Sessions Judge) Fast Track Court No.III, Tharapuram, Erode District. + 1 c.c. to Mr. S. Arunkumar, Advocate. S.R.No.64489.+ 1 c.c. to Mr. Ma.P. Thangavel, Advocate. S.R.No.64924. CMA No.3554 of 2008CK (CO)GSK 19.12.2008.