BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 07/11/2007 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.A.(MD) No.1306 of 2007 and M.P.(MD)No.1 of 2007 The Branch Manager, The New India Assurance Co. Ltd., Theni. ... Appellant Vs 1.M.Venkateswari 2.The Special officer, Theni-Allinagaram Municipality, Theni. ... Respondents Prayer Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the Judgement and Decree dated 13.03.2007 passed in MCOP.No.153 of 2004 by the learned Motor Accidents Claims Tribunal cum the Chief Judicial Magistrate, Theni. !For Appellant ... Mr.K.Murugesan ^For Respondent No.1 ... Mr.R.Rajaram For Respondent No.2 ... No appearance :JUDGMENT
This appeal is focussed as against the Judgement and Decree dated
13.03.2007 passed in MCOP.No.153 of 2004 by the learned Motor Accidents Claims
Tribunal cum the Chief Judicial Magistrate, Theni.
2. Heard both sides.
3. A re’sume’ of facts absolutely necessary and germane for the disposal
of this Civil Miscellaneous Appeal would run thus:
The Tribunal vide Judgement dated 13.03.2007 has assessed compensation to
a tune of Rs.3,77,071.50 (Rupees three lakhs seventy seven thousand seventy one
and paise fifty) on the following sub-heads:
For loss of income - Rs.3,24,000.00 For medical expenses - Rs. 42,090.00 For medical bills - Rs. 981.50 For pain and sufferings - Rs. 10,000.00 -------------- Total - Rs,3,77,071.50 --------------
After assessing the compensation the Tribunal slashed it down to Rs.3,77,000/-
(Rupees three lakhs and seventy seven thousand only).
4. The quintessence of the grounds of appeal would run thus:
The Tribunal wrongly applied the multiplier method. The Tribunal
erroneously assumed as though the percentage of disability sustained by the
claimant as 75% instead of 60% and that 1/3 (one third) of the income of the
claimant was not deducted while assessing the quantum of compensation.
5. The point for consideration is as to whether the Tribunal arrived at
‘just compensation’?
6. On point:
The learned counsel for the appellant Insurance Company would draw the
attention of this Court to the fact that in grievous injury cases, multiplier
system cannot be applied as a matter of course; even in the case of applying
such multiplier, the correct multiplier should be applied and that too after
deducting 1/3 (one third) of the income towards expenses, which the injured
would spend on herself.
7. Per contra, the learned counsel for the first respondent/claimant would
submit that the compensation awarded by the Tribunal is just and proper.
8. Ex facie and prima facie there is some error apparent in the
calculation arrived at by the Tribunal; 1/3 of the deceased income i.e.,
Rs.2000/- (Rupees two thousand only) was not deducted. Furthermore, the
multiplier chosen was 18 instead of 17 as the injured was only 26 years old at
the relevant time f the accident. As per the decision of the Hon’ble Apex Court
in New India Assurance Co. Ltd. v. Kalpana reported in (2007) 3 Supreme Court
Cases 538, the multiplier 18 can be applied only for the age group between 21
and 25. An excerpt from it would run thus:
“11. In Susamma Thomas Case [(1994) 2 SCC 176 : 1994 SCC (Cri) 335],
it was noted that the normal rate of interest was about 10% and accordingly, the
multiplier was worked out. As the interest rate is on the decline, the
multiplier has to consequentially be raised. Therefore, instead of 16 the
multiplier 18 as was adopted in Trilok Chandra Case [(1996) 4 SCC 362] appears
to be appropriate. In fact in Trilok Chandra case, after reference to Second
Schedule to the Act, it was noticed that the same suffers from many defects. It
was pointed out that the same is to serve as a guide, but cannot be said to be
invariable ready reckoner. However, the appropriate highest multiplier was held
to be 18. The highest multiplier has to be for the age group of 21 years to 25
years when an ordinary Indian citizen starts earning independently and the
lowest would be in respect of a person in the age group of 60 to 70, as the
former is the normal retirement age.” (emphasis
supplied)
9. The Tribunal instead of awarding compensation for the permanent
disability by taking into account the percentage of permanent disability and
awarding from Rs.1000/- to Rs.2000/- for each percentage of permanent
disability, has chosen the multiplier system. Now the appellant Insurance
Company is challenging it.
10. At this juncture, I would like to refer to this Court decision in
United India Insurance Co. Ltd., Tiruchengode v. Veluchamy and another reported
in 2005(1)CTC-38. An excerpt from it would run thus:
“The following principles emerge from the above discussion:
(a) In all case 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 extend 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 till the rest of his life, in that event loss of
income or earning may be ascertained by applying “multiplier method” as provided
under Second Schedule to the Motor Vehicles Act, 1988.
(2) Even, if 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”.
11. The perusal of the aforesaid decision would demonstrate that in a case
where the injured’s life has become a vegetative one life or ideal one
naturally, the multiplier system has to be applied. In this case, the injured
happened to be a house wife having children also. The Tribunal also believed
the evidence to the effect that at the relevant time of the accident, she was
doing some tailoring work and earning a sum of Rs.2000/- (Rupees two thousand
only) per month. Because, of this accident, certainly it could be taken that
she might not be able to carry on with her normal function as tailor as well as
the house wife.
12. The Tribunal in its wisdom thought fit to apply the multiplier system
in the best interest of the injured as well as her family. I am of the
considered opinion that the multiplier adopted by the Tribunal need not be
interfered with. While holding so, I do not lay down a broad proposition that
in all amputation cases it should be taken as though multiplier system is
automatically applicable.
13. The learned counsel for the appellant Insurance Company would submit
that 75% permanent disability assessed by the Tribunal is on the higher side and
it could only be 60%, even as per the evidence of the Doctor. The learned
counsel for the claimant would submit that the Doctor clearly and categorically
stated that the injured has now only two centimetre extent below the knee and
actually she does not have leg at all below the knee.
14. In such a case, the Doctor felt that even though 60% permanent
disability could be assessed for amputation below the knee yet in view of her
young age and loss of cosmetics appearance, 15% more could be added. The
learned counsel for the appellant Insurance Company would submit that once
multiplier method is used, there is no point in awarding any amount towards loss
of cosmetic appearance etc. I could see considerable force in the contention of
the learned counsel for the appellant Insurance Company and accordingly it
viewed over and above 60% for the permanent disability at the most for her age
only 10% could be added to it and the total could only be 70% and not 75%. In
respect of other sub heads the compensation awarded can be left as such without
being interfered with. Accordingly,the compensation under the head ‘loss of
income’ shall be re-fixed and arrived at Rs.1,90,400/- [Rs.2000 X 12 X 17 X
70/100 X 2/3= Rs.1,90,400/-] (Rupees one lakh ninety thousand and four hundred
only). Hence, the total compensation would come to Rs.2,43,471.50/- (Rupees two
lakh forty three thousand four hundred seventy one and paise fifty only) as
detailed below.
For loss of income - Rs.1,90,400.00 For medical expenses - Rs. 42,090.00 For medical bills - Rs. 981.50 For pain and sufferings - Rs. 10,000.00 -------------- Total - Rs,2,43,471.50 --------------
15. In the result, this Civil Miscellaneous Appeal is partly allowed and
the award of the Tribunal is reduced from Rs.3,77,000/- (Rupees three lakh and
seventy seven only) to Rs.2,43,471.50/- (Rupees two lakh forty three thousand
four hundred seventy one and paise fifty only), which shall carry interest at
the rate of 7.5% per annum as directed by the Tribunal. No costs.
Consequently, connected Miscellaneous Petition is closed.
smn
To
The Motor Accidents Claims Tribunal cum the
Chief Judicial Magistrate, Theni.