Murugan v. National Insurance Company ltd.

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 11.12.2008CORAMTHE HONOURABLE MR.JUSTICE R.SUDHAKARC.M.A.No.3892 of 2008andM.P.NO.1 OF 2008National Insurance Company ltd.,II Floor, Maruthi Complex,F-215, Omalur Main Road,Salem 636004. ... Appellant/2nd Respondent vs.1.Murugan2.Muralikrishna(2nd respondent herein set exparte) ... Respondents/Petitioner and 2nd Respondent Civil Miscellaneous Appeal is filed under Section 173 of MotorVehicles Act, 1988 against the Judgment and decree dated 23.4.2008made in MCOP.No.245 of 2007 on the file of Motor Accident ClaimsTribunal (Sub Court) Sankari.For appellant : Mr.K.PadmanabhanFor Caveators : Mr.C.Kulandaivelu-----JUDGMENTThe Insurance Company is on appeal challenging the award23.4.2008 made in MCOP.No.245 of 2007 on the file of Motor AccidentClaims Tribunal (Sub Court) Sankari. 2. It is a case of injury. The accident in this case happenedon 13.4.2007. The injured claimant Murugan aged 34 years, Porter byoccupation travelling on a two wheeler was hit by a lorry and inthat accident he suffered grievous injuries. He was initiallytreated at Salem Government Hospital and thereafter he was taken toNatham Hospital, Salem and was treated as inpatient for a period ofone month. In that accident, according to the claim petition, hesuffered following injuries. https://hcservices.ecourts.gov.in/hcservices/ (i) Grievous injury to the left leg, thigh,hip, spinal chordresulting in fracture in many places.(ii) Lacerated wound in the left hip and thigh(iii) Abrasion in left supra occipital areaAccording to the injured claimant, he was earning a sum ofRs.6,000/- as Porter every month. He claimed a sum of Rs. 7 lakhs ascompensation.3. In support of the claim, the following persons are examinedas witnesses. The claimant was examined as PW1 Doctor was examinedas PW2, Exs. A1 to A13 were marked. Ex.A-1 is the photocopy ofF.I.R., Ex.A-2 is the Accident Register, Ex.A-3 is the copy ofWound Certificate, Ex.A.4 is the copy of Insurance for the vehiclebearing Registration No.TN-27-E-0779, Ex.A5 is the copy of MotorVehicle Inspector's report, Ex.A6 is the copy of charge sheet, Ex.A7is the copy of Rough Sketch, EX.A8 series are the medical bills forover one lakh, EX.A9 is the the discharge summary, EX.A10 is theScan report, EX.A11 is the Disability Certificate, Ex.A12 is the Xray, EX.A13 is the receipt for X-ray taken. 4. The finding of the Tribunal with regard to negligence onthe part of the driver of the lorry who is responsible for theaccident and injury and consequential liability fixed on theappellant Insurance Corporation to compensate the claimants is notin dispute and the same is confirmed. 5. The only contention raised by the learned counsel for theappellant is on the quantum of compensation. 6. The nature of injuries suffered by the injured claimanthas been discussed by the Tribunal in paragraph 9 of the award inanswer to point No.2. As recorded by the Tribunal, the injuredclaimant has suffered fracture of several bones in the followingareas, viz., left thigh, left hip region, spinal column. He wastreated at Government Hospital, Salem and given first aid.Thereafter, he was taken to Natham Hospital. A 34 years old injuredclaimant was in the hospital for more than one month. Four surgicalprocedures were done to the thigh area and to the hip region. Platesand screws were fixed. Consequent to the injury, he also sufferedurinary problem. He stated that in spite of medical treatment, he isunable to get back to his normal life. He cannot attend to the callof nature without the support of another person. Because of theinjury to his spinal region, he cannot work and earn as before. Thedoctor P.W.2 stated that the injuries are serious in nature and thebones of the hip region is mal united after the fracture. There isalso inflammation in the bone area. Consequent to the injury, theclaimant finds difficult to flex the legs and therefore, disability https://hcservices.ecourts.gov.in/hcservices/ is assessed at 40% by the doctor P.W.2 under Ex.A11. The Tribunal,however, reduced the disability to 34%. The Tribunal taking note ofthe aforesaid injuries, the period of treatment given, thedisability assessed, the age and occupation of the injured claimant,adopted multiplier method. The Tribunal fixed the income of theinjured claimant at Rs.3,000/- per month and by taking multiplier of17, for the disability assessed at 34% granted compensation in a sumof Rs.2,08,080/- (Rs.3,000 x 12 x 17 x 34% = Rs.2,08,080) towardsloss of earning capacity due to disability. In addition to that, theTribunal granted compensation on various other heads including thecompensation for medical expenses met. In all the Tribunal grantedthe following amounts as compensation:- The Tribunal granted compensation for pecuniary loss as follows:-Sl.No.HeadAmount granted bythe Tribunal1Loss of earning power(Rs.3000 x 12 x17x34/100Rs.2,08,080/-2Transport ChargesRs. 3,000/-3Extra NourishmentRs. 6,000/-4Medical ExpensesRs.1,26,153/-5Pain and SufferingRs. 15,000/-6Attender chargesRs. 10,000/-7Loss of income during treatmentRs. 18,000/- TotalRs.3,86,233/- The Tribunal awarded the above compensation with 7.5%interest.7. The only contention on the part of the learned counsel forthe appellant is that the Tribunal is not justified in adopting themultiplier of 17 in this case. If this court feels that the Tribunalwas justified in adopting the multiplier method, he states thathigher multiplier as in the case of death should not have beenapplied. He referred to the Division Bench Judgment of this Court inUnited India Insurance Co.,Ltd., Vs. Veluchamy and another reportedin 2005 ACJ 1483. 8. The Division Bench of this Court in United India InsuranceCo. Ltd., - vs. - Veluchamy and another reported in 2005 ACJ 1483has laid the parameters as to when multiplier method can befollowed. Paragraph 11 of the decision reads thus:- https://hcservices.ecourts.gov.in/hcservices/ "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 or profession ornature of employment being attended by the injured at the time ofaccident."In this case, the injured claimant is a porter by occupation. He was34 years old at the time of accident. It is stated that the injuredclaimant has a large family to take care of and the nature ofinjuries has been extracted above has crippled his life, inasmuch ashe cannot work and earn as before as a porter. If at all, he canmake a living for his own sustenance only. The income as before islost and the family is in penury. The claimant has also pleaded thathe is unable to meet the expenditure for medical treatment. Sensingthis difficulty, this court has, at the request of the counsel foreither side, taken up the matter for final disposal so as toalleviate the grievance of the injured claimant at the earliest.Keeping the principles laid down by the Division Bench of this Courtin Veluchamy's case and taking note of the fact that there will be alumpsum payment consequent to the award and also keeping in mind https://hcservices.ecourts.gov.in/hcservices/ that the injured claimant can take up other forums of livelihood forsustaining himself, the multiplier as in the case of death need notbe adopted in the present case. However, considering the grievousnature of injury suffered, the age and occupation of the injuredclaimant, the multiplier in the present case will be 14 as against17 adopted by the Tribunal. 9. Based on the above parameters the pecuniary loss for thedisability assessed at 34% to the claimant will be Rs.1,71,360/-(Rs.3,000 x 12 x 14 x 34% = Rs.1,71,360). The amount granted formedical bills is not disputed. So far as pain and suffering, extranourishment, attender charges, loss of income during the period oftreatment and transport expenses, suitable compensation has to begranted. Hence, the total award of the Tribunal stands modified asfollows:Sl.NoHeadsAmount grantedby the TribunalAmount grantedby this Court1Loss of earning power Rs.2,08,080/- ----1(a)Pecuniary loss for thedisability at 34% ----Rs. 1,71,360/-2Mental agony and pain andsuffering Rs. 15,000/-Rs. 20,000/-3Extra Nourishment Rs. 6,000/-Rs. 6,000/-4Transport expensesRs. 3,000/-Rs. 5,000/-5Attender chargesRs. 10,000/-Rs. 5,000/-6Medical bills as perEXs.A8 and A13Rs.1,26,153/-Rs.1,26,153/-7Loss of income during theperiod of treatment Rs. 18,000/-Rs. 18,000/- TotalRs. 3,86,233/-Rs. 3,51,513/- 10. The award stands reduced to Rs.3,51,513/- fromRs.3,86,233/-. The Interest at 7.5% stands confirmed as the accidenthappened in 2007 and award passed in the year 2008.11. In the result, the Civil Miscellaneous Appeal is allowedin part as follows:-(i) The compensation awarded by the Tribunal is reduced toRs.3,51,513/- from Rs.3,86,233/-. (ii) The interest awarded at 7.5% is confirmed.(iii) The appellant seeks for four weeks' time to deposit the https://hcservices.ecourts.gov.in/hcservices/ award amount and the same is allowed. On such deposit, the claimantis permitted to withdraw the amount,as ordered by this Court.theTribunal. If the appellant already deposited the amount in excess,the same shall be refunded to the appellant.(iv) There will be no order as to cost. Consequently, connected miscellaneous petition is closed. Sd/Asst.Registrar/true copy/Sub Asst.Registrar VJYTo1.Motor Accident Claims Tribunal (Sub Court) Sankari.+1cc to Mr.Kulanthaivel, Advocate Sr 69524KM (CO)km/28.1.C.M.A.No.3892 of 2008