The Oriental Insurance Co. Ltd. v. Kannan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 17.11.2008CORAM:-THE HON'BLE MR. JUSTICE R. SUDHAKARC.M.A.No. 3555 of 2008The Oriental Insurance Co. Ltd.,Subha Govindan Buildings, 2nd floor,Imperial Road,Cuddalore. ... Appellant/2nd respondentVs.1.Kannan2.Selvamani .. Respondents/petitioner/ first respondentAppeal filed under Section 173 of the Motor Vehicles Act againstthe award and decree dated 23.10.2007 in MCOP No. 110 of 2007 on thefile of the Motor Accident Claims Tribunal (Additional District Court –FTC I) Chidambaram.For Appellant : Mr. S. ArunkumarFor Respondents : Mr. S.KumaradevanJUDGMENTThe Insurance Company has filed this appeal challenging theaward dated dated 23.10.2007 in MCOP No. 110 of 2007 on the file of theMotor Accident Claims Tribunal (Additional District Court – FTC I)Chidambaram.2. It is a case of injury. The accident in this casehappened on 26.5.2005. The injured claimant Kannan, aged 50 years,working in a brick kiln on daily wages, was loading the bricks when thetractor insured with the appellant insurance company driven by itsdriver in a rash and negligent manner hit the claimant while reversingthe vehicle. Consequent to the accident, the injured claimantsuffered serious injuries to his right hand and he was taken to RMMCHhospital, Annamalai Nagar, Chidambaram and treated from 25.5.2005 to8.6.2005 as inpatient. Medical procedures were done to the injuredright hand. Three fingers viz., 3,4 and 5 were amputated. For theinjuries suffered, the claimant filed a petition claiming a sum ofRs.6,00,000/- as compensation stating that his income was Rs.4,000/-p.m. i.e. Rs.200/- to Rs.250/- per day. https://hcservices.ecourts.gov.in/hcservices/

3. In support of the claim petition, the injured claimant wasexamined as P.W.1. Dr. Balamurugan was examined as P.W.2.Documents Exs.A1 to A14 were marked and x-ray was marked as M.O.1. The documentsrelating to hospitalisation and treatment are Exs. A3, 6,7,8,9 and 10.No oral and documentary evidence was let in on behalf of the appellant/respondent before the Tribunal. The disability was assessed at 45%.4. The Tribunal taking into consideration the nature ofemployment of the injured and the loss of three fingers which willaffect his capacity to earn as brick kiln worker, by adopting multipliermethod granted a sum of Rs.2,37,600/- (Rs.4,000/- x 12 x11=Rs.5,28,000/- x 45/100= Rs.2,37,600/-) towards loss of earning power.In all, the Tribunal granted the following amount as compensation withinterest at the rate of 7.5% p.a. Sl.No.HeadAmount granted bythe Tribunal1Loss of earning powerRs.2,37,600/-2Grievous injuryRs. 5,000/-3Loss of incomeRs. 48,000/-TotalRs.2,90,600/-5. In paragraph 8 of the award, a sum of Rs.439/- + Rs.25/-has been mentioned as the amount payable for medical expenses. However,the said amount has not been added in the total compensation. 6. The finding of negligence on the part of the driver of thetractor, who caused the accident and the injury and the liability of theinsurance company to compensate the claimant is not in dispute and thesame is confirmed.7. The only contention raised by the learned counsel for theappellant is on the quantum of compensation. According to theappellant, for the loss of three fingers, the disability assessed at 45%under Ex.A14 is on the higher side. Even according to the schedule tothe Workmen's Compensation Act, the disability will be only 30%. Hefurther stated that the multiplier of 11 is also on the higher side andhas to be suitably reduced. He also pleaded for reduction in thequantum of compensation granted for loss of income during the periodof treatment stating that the said amount is excessive. 8. Learned counsel for the first respondent/ claimant on the otherhand submitted that the disability is permanent and the claimant'searning capacity is affected very much due to amputation. Learnedcounsel for the respondent/claimant relied upon the decision of theDivision Bench of this Court in United India Insurance Co. Ltd., - vs. -Veluchamy and another reported in 2005 ACJ 1483. https://hcservices.ecourts.gov.in/hcservices/

9. A Division Bench of this court in United India Insurance Co.Ltd., - vs. - Veluchamy and another reported in 2005 ACJ 1483, set outthe principles as to when multiplier method should be adopted in a caseof injury in para 11 which reads as follows:-"11. The following principles emerge from theabove discussion:(a) In all cases of injury or permanentdisablement 'multiplier method' cannot bemechanically applied to ascertain the future loss ofincome 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 lost his employment or avocation completelyand has to be idle for the rest of his life, in thatevent loss of income or earnings may be ascertainedby applying 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."He therefore justified the multiplier adopted in this case. He alsopleaded that no amount was granted for pain and suffering, extranourishment, transport and attender charges. He therefore, justifiedthe award.10. The nature of injuries suffered by the claimant and thetreatment given resulting in amputation clearly goes to show that afterthe treatment claimant has recovered from injuries. The earningcapacity, however, will be affected as the claimant has to rely on https://hcservices.ecourts.gov.in/hcservices/ physical strength and his hands and fingers for making bricks.However, it will not preclude the claimant from earning through othersources on a lesser scale. Therefore, the multiplier as in the case ofdeath need not be adopted in the case of injury of this kind. Followingthe decision in Veluchamy's case cited above, the multiplier has to bereduced and the percentage of disability in the present case has to besuitably modified. Accordingly, the loss of earning capacity due todisability is determined in a sum of Rs. 1,44,000/- (Rs.4,000/- x 12 x30/100 x 10 -= Rs.1,44,000/-). As rightly pointed out by the learnedcounsel for the first respondent/ claimant, no amount was granted forpain and suffering, transport expenses, extra nourishment and attendercharges. The sum of Rs.48,000/- granted for loss of income during theperiod treatment is excessive as the Tribunal has granted compensationfor nearly one year and there is no medical evidence to support thesame. The award therefore stands modified as follows:-Sl.No.HeadAmount grantedby theTribunal Amount grantedby this Court1Loss of earning powerRs.2,37,600/-Rs.1,44,000/-2Grievous injuryRs. 5,000/- ---3Loss of income for four monthsRs. 48,000/-Rs. 16,000/- 4Pain and suffering ----Rs. 20,000/-5Extra nourishment ---Rs. 7,500/-6Transport expenses ---Rs. 5,000/-7Attender charges ---Rs. 5,000/-TotalRs.2,90,600/-Rs.1,97,500/-rounded off toRs.2,00,000/-11. Since the accident happened in the year 2005 and the award waspassed in the year 2007, the interest granted by the tribunal 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 to Rs.2,00,000/- fromRs.2,90,600/-.(ii) Learned counsel for the appellant seeks eight weeks time to deposit the amount and the same is allowed. On suchdeposit, the claimant is entitled to withdraw the same asper the order of this Court. https://hcservices.ecourts.gov.in/hcservices/ (iii) There shall be no order as to costs.(iv) Consequently, M.P.No.1 of 2008 is closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.raToThe Motor Accident Claims Tribunal, (Additional District Judge – FTC I) Chidambaram.+ 1 cc to Mr.S.Kumaradevan,Advocate,SR.63964+ 1 cc to Mr.S.Arunkumar,Advocate, SR.63965CMA No. 3555 of 2008CK(CO)EM/12.1.09