M/s. Tamilnadu State GovernmentTransport Corporation,rep. by its Managing Director,Salem-7 v. Murali Vasudevan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 20.11.2008CORAM:-THE HON'BLE MR. JUSTICE R. SUDHAKARC.M.A.No. 73 of 2001M/s. Tamilnadu State GovernmentTransport Corporation,rep. by its Managing Director,Salem-7. ... Appellant/ RespondentVs.Murali Vasudevan ... Respondent/ PetitionerAppeal filed under Section 173 of M.V. Act against theaward and decree dated 4.8.2000 made in MCOP No. 937 of 1997 on thefile of the Motor Accident Claims Tribunal, (III Addl. DistrictJudge) Salem. For Appellant : Mr. P. JagadeeswaranFor Respondent : No Appearance JUDGMENTThe Transport corporation has filed this appealchallenging the award dated 4.8.2000 made in MCOP No. 937 of 1997on the file of the Motor Accident Claims Tribunal (III AdditionalDistrict Judge), Salem. 2. It is a case of injury. The accident, in the case,happened on 18.12.1996. The injured claimant Murali Vasudevan wastravelling in the appellant transport corporation bus which hit atamarind tree and in that accident, the claimant in this casesuffered fracture of the left leg and injuries to his face. He wastaken to Salem Government Hospital and thereafter to Shanmugamhospital and then to SKS hospital, where he took treatment for sixdays. He was treated at M/s. Apollo Hospital also. Surgicalprocedure including skin grafting was done on the leg. As perEx.A2, wound certificate, there are three injuries. The injury tothe leg is stated to be grievous in nature. Contending that hisincome was Rs.10,000/- p.m. as a sales representative in a chit https://hcservices.ecourts.gov.in/hcservices/ company, he stated that he was given employment because he was anexcellent sports player in cricket and therefore claimed a sum ofRs.15,00,000/- as compensation. 3. In support of the claim petition, the claimant wasexamined as P.W.1. and Dr. Elangovan was examined as P.W.2.Documents Exs. P1 to P11 were marked. One Saravanan, checkinginspector, was examined as R.W.1. No document was filed on behalfof the appellant/ respondent before the Tribunal. 4. The Tribunal in this case, decided the compensationfrom para 8 onwards in answer to point No.2. Taking intoconsideration the three grievous injuries, the surgical proceduredone in SKS Hospital and the M/s. Apollo hospital and also theexpenses met for the treatment and based on records, the Tribunalgranted a sum of Rs.2,40,000/- towards medical expenses. TheDoctor, who was examined as P.W.2 , stated that there is shorteningof leg. The injured claimant, it is stated, is an active sportsmanengaged in Cricket. According to the Doctor, the claimant is notable to walk normally as before, and this has affected his livelyhood and his sports activity has also stopped. The evidence ofthe Doctor is supported by Ex.A8, x-ray. The further evidence ofthe Doctor is that the Tibia bone after the surgical procedure hasnot fused properly. The Doctor also deposed about the medicalprocedure done on the claimant whereby the skin on the internal sideof the leg has been removed and grafted on the wound area. TheDoctor further stated that the movement of the leg is affected andthe disability is 45% as per Ex.A10, the disability certificate.For the disability assessed at 45%, a sum of Rs.1,00,000/- wasgranted. Further, towards loss of income due to disability, theTribunal based on the evidence, came to the conclusion that theinjured claimant was earning Rs.3,500/- p.m. Taking note of theclaimant's plea that his monthly income was Rs.7,000/- before theaccident and the income fixed, the Tribunal granted a sum ofRs.1,00,000/- towards loss of future income. In all, the Tribunalgranted the following amounts as compensation with interest at therate of 12% p.a.Sl.No.HeadAmount grantedby theTribunal1Pain and sufferingRs.10,000/-2Medical expensesRs. 2,40,000/-3Disability at 45%Rs. 1,00,000/-4Loss of income in the futureRs. 1,00,000/-TotalRs.4,50,000/- https://hcservices.ecourts.gov.in/hcservices/

5. The finding of negligence on the part of the driverof the appellant transport corporation bus and the liability of theappellant to compensate the claimant is not in dispute and the sameis confirmed.6. The only contention made by the learned counsel forthe appellant is on the quantum of compensation. This appeal wasadmitted on 9.4.2001 and interim stay was granted subject to thecondition that the appellant deposits entire compensation awarded bythe Tribunal and permission was granted to the claimant to withdraw50% of the deposit and the balance was directed to be kept in bankdeposit.7. Notice through Court was sent to the address mentioned inthe claim petition. However, the notice has been returned on twooccasions viz., on 18.12.2002 and on 30.12.2002 with an endorsement" no such address". Private notice was also taken on 21.7.2001. Itis stated therein that the respondent has left. As per thedirection of the Court, the lower Court counsel was served on27.9.2007. Yet, there is no appearance on behalf of the respondent.Therefore, this Court finds no good reason to endeavor any furtherin an attempt to serve notice to the respondent. The appealtherefore is taken up for disposal on merits. 8. As far as the medical expenses is concerned, it issupported by Exs.A3 and A4 and there is no dispute on the same. TheTribunal granted a sum Rs.1,00,000/- for the disability assessed at45% and Rs.1,00,000/- towards loss of income in the future. Exceptthe evidence of about disability insofar as the claimant isconcerned, there is no material oral or documentary to support theplea that compensation should be granted in this case separatelyunder disability and loss of earning capacity. In any event, suchdetermination cannot be accepted in the light of the Full Benchdecision in Cholan Roadways Corporation Ltd. -v.- Ahmed Thambireported in 2006(4) C.T.C. 433, wherein the Full Bench set out thevarious heads under which compensation should be granted in a caseof injury . The relevant portion reads as follows:- "In the non-pecuniary losses the Tribunal shallconsider: (a) pain and suffering, (b) loss of amenity,(c) loss of expectation of life, hardship, mental stressetc. (d) loss of prospect of marriage and under the headpecuniary losses, the Tribunal shall consider loss ofearning capacity and loss of future earnings as onecomponent apart from medical and other expenses and lossof earning, if any from the date of accident till thedate of trial. When loss of earning capacity iscompensated as also the non-pecuniary losses under (a) to https://hcservices.ecourts.gov.in/hcservices/ (d), permanent disability need not be separatelyitemised." Therefore, the compensation on the above two heads may not bejustified. The claimant however, was not granted any compensationfor transport expenses,attender charges, extra nourishment etc.Further, meager amount has been granted for pain and suffering. 9. In this case, considering the grievous nature ofinjuries suffered and the fact that the injured claimant is anactive sportsman and also taking into consideration the medicaltreatment at different hospitals i.e. two at Salem and one atChennai, the claimant has to be suitably compensated for the loss ofearning capacity due to the disability. He is entitled toreasonable compensation for loss of income during the period oftreatment, transport expenses, extra nourishment and attendercharges and also enhanced compensation for pain and suffering. Theclaimant has proved by cogent materials that his earning capacityhas been affected. The Tribunal has merely on the basis of thedisability assessed at 45%, granted a sum of Rs.1,00,000/-. As faras loss of income, no basis has been shown as to how this amount ofRs.1,00,000/- was arrived at. In such view of the matter, the sumof Rs.1,00,000/- granted for the disability and Rs.1,00,000/- forfuture loss of income are set aside since compensation has beengranted on both the heads sans reason. 10. The Division Bench of this Court in United IndiaInsurance Co. Ltd., - vs. - Veluchamy and another reported in 2005ACJ 1483, set out the principles as to when multiplier method shouldbe adopted in a case of injury in para 11 which reads as follows:-"11. The following principles emerge fromthe above discussion:(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 https://hcservices.ecourts.gov.in/hcservices/ '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."In this case, the evidence of the doctor supports the plea ofcompensation based on multiplier and the parameters of the DivisionBench decision will be attracted to the facts of this case. Theclaimant will therefore be entitled to just and reasonablecompensation for the disability assessed at 45% based on multiplierand for loss of income during the period of treatment and recovery,transport expenses, attender charges, extra nourishment and enhancedcompensation for pain and suffering. The income of the injuredclaimant is fixed as Rs.3,500/- per month and it is not disputed.The multiplier that can be taken is 6 as it is not a case of totalincapacity. For disability assessed at 45%, the loss of income dueto disability will be Rs.1,13,400/- (Rs.3,500/- x 12 x 45/100 x 6 =Rs.1,13,400/-). The claimant will also be entitled to suitablecompensation on other heads which have been omitted. Accordingly,the award of the tribunal stands modified as follows:-Sl.No.HeadAmount grantedby theTribunalAmountgranted bythis Court 1Pain and sufferingRs.10,000/-Rs.20,000/-2Medical expensesRs. 2,40,000/-Rs.2,40,000/-3Disability at 45% and loss ofearning capacityRs. 1,00,000/-Rs.1,13,400/-4Loss of income in futureRs. 1,00,000/- ---5Loss of income during theperiod of treatment(Rs.3,500/- x 6 = Rs.20,000/-) ---Rs.20,000/-6Transport expenses ---Rs.15,000/- https://hcservices.ecourts.gov.in/hcservices/ Sl.No.HeadAmount grantedby theTribunalAmountgranted bythis Court 7Attender charges ---Rs.10,000/-8Extra nourishment ---Rs.10,000/-TotalRs.4,50,000/-Rs.4,28,400/-10. Since the accident happened in the year 1996 and the awardwas passed in the year 2000, the interest granted by the Tribunal at12% p.a. is confirmed.11. In the result, the civil miscellaneous appeal is partlyallowed as follows:-(i) The award of the Tribunal is reduced to Rs.4,28,400/-from Rs.4,50,000/-.(ii) The interest will be at 12% p.a.(iii) It is stated that as per the interim order of thisCourt entire amount has been deposited and the claimant waspermitted to withdraw 50% of the amount deposited. The claimant isentitled to withdraw the balance 50% of the award amount withinterest and costs as per the order of this Court.(iv) The appellant is entitled to withdraw the excess amountin deposit after settling the claimant. (v) There shall be no orders as to costs.(vi) Consequently, connected civil miscellaneous petitions areclosed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.ra https://hcservices.ecourts.gov.in/hcservices/ ToThe Motor Accident Claims Tribunal,(III Addl. District Judge) Salem. 1 c to Mr.P. Jagadeeswaran, Advocate, SR.65022 CMA No. 73 of 2001JSV (CO)kk 23/1