IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.11.2008 CORAM THE HONOURABLE MR.JUSTICE R.SUDHAKAR C.M.A.No.1947 of 2000 Tamil Nadu State Transport Corporation (Coimbatore Division I) Ltd., represented by its Managing Director, Coimbatore. ... Appellant/2nd Respondent vs. 1.Anandakumar alias S.Anandakrishnan, 2.K.Selvaraj. (2nd respondent is the driver of the appellant Corporation. He is not necessary party in this proceedings, hence he is given up) ... Respondents/Petitioner and 1st respondent Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988 against the award and decree dated 8.12.1999 passed in M.C.O.P.No.519 of 1994 on the file of the Motor Accidents Claims Tribunal (II Additional Sub Court), Coimbatore. For appellant : Ms.S.Geetha for M/s.Rajnish Pathiyil For respondents : Mr.Ma.P.Thangavel for R1 : R2 given up ----- JUDGMENT
State Transport Corporation is on appeal challenging the award dated 8.12.1999 passed in M.C.O.P.No.519 of 1994 on the file of the Motor Accidents Claims Tribunal (II Additional Sub Court), Coimbatore.
2. The only contention canvassed by the learned counsel for the appellant is on the quantum of compensation.
3. It is a case of injury. The brief facts of this case are as follows:- The accident in this case happened on 16.3.1994. According to the claim, the injured claimant Anandakumar alias S.Anandakrishnan, aged about 32 years, a sales representative, was proceeding in a two wheeler from East to West on Coimbatore-Trichy High Road. The lorry owned by the appellant transport corporation proceeding from West to East crossed the road and came on the wrong side to enter into the CTC Depot and while attempting to do so, hit the two wheeler driven by the first respondent injured claimant. In that accident, the first respondent claimant suffered three grievous injuries. He was treated for three months at Coimbatore Government Hospital. Thereafter, he was treated at Sheela Hospital, Coimbatore. The nature of injuries are as follows:-
(i) fracture of right thigh bone,
(ii) fracture of right leg knee and
(iii)fracture of left knee cap.
Consequent to the injuries, the injured claimant filed a claim for compensation in a sum of Rs.3 lakhs, stating that he was earning a sum of Rs.3,000/- per month.
4. In support of the claim, the injured claimant was examined as P.W.1. One doctor Shanmugaraman was examined as P.W.2. The following documents were marked:-
Ex.A-1 is the copy of F.I.R., dated 16.3.1994
Ex.A-2 is the copy of charge-sheet dated 5.9.1994,
Ex.A-3 is the Motor Vehicle Inspector’s Inspection Report,
Ex.A-4 is the wound certificate dated 28.7.1995,
Ex.A-5 is the proof that the lorry is the transport vehicle,
Ex.A-6 is the copy of R.C. Book for the lorry,
Ex.A-7 is the rough sketch,
Ex.A-8 is the discharge summary,
Ex.A-9 series are the medical bills,
Ex.A-10 is the disability certificate and
Ex.A-11 is the X-Ray.
One Selvaraj, the driver of the lorry was examined as R.W.1. A copy of criminal court judgment was marked as Ex.B-1 on behalf of the appellant transport corporation, second respondent before the Tribunal.
5. The rough sketch Ex.A-7 supported by other documents and the oral evidence clearly established the case of rash and negligent driving on the part of the driver of the lorry belonging to the appellant transport corporation. Such finding in the absence of material to the contrary is confirmed.
6. As regards the compensation, the disability in this case was assessed at 50% under Ex.A-10. The doctor P.W.2 has stated in his evidence that consequent to the injury, the left leg knee cap has not properly fixed. Because of mal union of the right knee there is a shortening of the leg. Injured claimant was in hospital from 16.3.1994 to 24.6.1994 and from 7.11.1994 to 21.11.1994. In the absence of any material to show the income of the deceased, based on the age of the claimant whose age at the time of accident was 32 years, the Tribunal fixed the income of the deceased at Rs.1,500/- per month and the annual income as Rs.18,000/- and by adopting 17 multiplier for the 50% disability, fixed the pecuniary loss at Rs.1,53,000/-. In all, the Tribunal granted the following amounts as compensation with 12% interest:-
Sl.No.
Head
Amount granted by the Tribunal
1
Loss of earning
Rs.1,53,000/-
2
Medical expenses as per Ex.A-9 medical bills
Rs. 12,000/-
3
For three grievous injuries
Rs. 15,000/-
4
Loss of income during the period of treatment
Rs. 18,000/-
Total
Rs.1,98,000/-
7. The only contention raised by the counsel for the appellant is that the Tribunal erred in adopting multiplier method in determining the quantum of compensation. There is no evidence to show that due to the injury the earning capacity has been lost entirety. The evidence of doctor says that the disability has affected his normal life.
8. Learned counsel for the first respondent/claimant pleaded that due to the injuries suffered the claimant is unable to do work as before to make his livelihood.
9. A Division Bench of this Court in United India Insurance Co. Ltd., – vs. – Veluchamy and another (P.SATHASIVAM,J. as he then was) reported in 2005 ACJ 1483 set out the parameters, in which the multiplier method can be adopted in a case of injury. The relevant paragraph 11 reads thus:-
“11. The following principles emerge from the above discussion:
(a) In all cases of injury or permanent disablement ‘multiplier method’ cannot be mechanically applied to ascertain the future loss of income or earning power.
(b) It depends upon various factors such as nature and extent of disablement, avocation of the injured and whether it would affect his employment or earning power, etc. and if so, to what extent?
(c) (1) If there is categorical evidence that because of injury and consequential disability, the injured lost his employment or avocation completely and has to be idle for the rest of his life, in that event loss of income or earnings may be ascertained by applying the ‘multiplier method’ as provided under the Second Schedule to Motor Vehicles Act, 1988.
(2) Even so there is no need to adopt the same period as that of fatal cases as provided under the Schedule. If there is no amputation and if there is evidence to show that there is likelihood of reduction or improvement in future years, lesser period may be adopted for ascertainment of loss of income.
(d) Mainly it depends upon the avocation or profession or nature of employment being attended by the injured at the time of accident.”
10. In the present case, though the disability assessed at 50%, after the treatment given on 21.11.1994, there is no material to show that the injured claimant has been totally incapacitated or his ability to work and his livelihood has been affected. However, the injury in this case, viz., fracture of thigh and shortening of leg in two centi-metres, will affect the earning capacity as sales representative. Therefore, the Tribunal was justified in adopting the multiplier method. But, at the same time, the multiplier in a case of this nature cannot be the same as in the case of death. The claimant will be entitled to suitable compensation based on lesser multiplier as he would have the benefit of making a livelihood by other means. Therefore, the Tribunal is not justified in adopting 17 multiplier as in the case of death. However, the proper multiplier that can be taken in this case will be “10” and not “17”. The income fixed by the Tribunal is not in dispute. Accordingly, if 10 multiplier is adopted, the pecuniary loss based on 50% disability will be Rs.90,000/- (Rs.18,000/- x 10 x 50% = Rs.90,000/-)
11. Learned counsel for the first respondent/claimant has rightly pointed out that no amount has been granted for extra nourishment, pain and suffering undergone, transport expenses and attender charges. The claimant is entitled to the same and it is not disputed.
12. The amount of Rs.15,000/- granted towards grievous injuries cannot be sustained when adequate compensation is granted for loss of earning capacity due to the disability and for pain and suffering. Therefore, the said sum of Rs.15,000/- granted for grievous injuries is set aside.
13. Accordingly, the award of the Tribunal is modified as follows:-
Sl.No.
Head
Amount granted by the Tribunal
Amount granted by this Court
1
Pecuniary loss based on disability assessed at 50%
Rs.1,53,000/-
Rs. 90,000/-
2
Medical expenses as per Ex.A-9 medical bills
Rs.12,000/-
Rs. 12,000/-
3
For three grievous injuries
Rs.15,000/-
—
4
Loss of income during the period of treatment
Rs.18,000/-
Rs. 18,000/-
5
Pain and suffering
—
Rs. 40,000/-
6
Extra nourishment
—
Rs. 10,000/-
7
Attender charges
—
Rs. 7,500/-
8
Transport charges
---
Rs. 10,000/-
Total
Rs.1,98,000/-
Rs.1,87,500/-
14. Since the accident happened in the year 1994 and the award was passed in the year 1999, the interest granted at 12% stands confirmed.
15. It is stated that as per order dated 13.12.2000 in C.M.P.No.18702 of 2000, entire award amount has been deposited.
16. In the result, the Civil Miscellaneous Appeal is partly allowed as follows:-
(i) The award of the Tribunal is reduced to Rs.1,87,500/- from Rs.1,98,000/-
(ii) The interest granted by the Tribunal at 12% stands confirmed.
(iii) The first respondent/claimant is entitled to withdraw the award amount as determined by this Court.
(iv) The appellant is entitled to withdraw the excess amount in deposit after settling the claimant.
(v) There will be no order as to costs.
(vi) Consequently, connected miscellaneous petition, if any, is closed.
11.11.2008
Index: No
Internet:Yes
ts
To
1.II Additional Subordinate Judge,
(The Motor Accidents Claims Tribunal)
Coimbatore.
2.The Record Keeper,
V.R. Section,
High Court,
Madras.
R.SUDHAKAR,J.
ts
Judgment in
C.M.A.No.1947 of 2000
11.11.2008