BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21/11/2007 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.M.A.(MD) No.1317 of 2007 and M.P(MD)No.2 of 2007 The United India Insurance Company Ltd., G.S.T.Road, Thirunagar, Madurai South Taluk, Madurai District. .. Appellant/ 2nd Respondent Vs 1.P.Ravi .. 1st Respondent /Petitioner 2.M.Sankaralingam .. 2nd Respondent /1st Respondent Prayer Appeal filed under Section 173 of Motor Vehicles Act, 1988, against the judgment and decree passed in M.C.O.P.No.703 of 2002 dated 13.02.2007 on the file of the Motor Accidents Claims Tribunal cum III Additional Sub Court, Madurai. !For Appellant ... Mr.C.Jawahar Ravindran ^For Respondents ... Mr.K.Ananda Rajan for R.1 :JUDGMENT
This appeal is focussed as against the judgment and decree passed in
M.C.O.P.No.703 of 2002 dated 13.02.2007 on the file of the Motor Accidents
Claims Tribunal cum III Additional Sub Court, Madurai.
2. The challenge in this Civil Miscellaneous Appeal is relating to the
quantum of compensation awarded by the Tribunal, vide judgment dated 13.02.2007,
to a tune of Rs.8,61,800/- (Rupees Eight Lakhs Sixty One Thousand and Eight
Hundred only) on the following sub-heads:
(i) For Loss of Income - Rs.7,71,800.00 (ii)For Transport Charges - Rs. 10,000.00 (iii) For Nutritious Food - Rs. 5,000.00 (iv) For Future Medical Expenses - Rs. 20,000.00 (v) For Pain and Sufferings - Rs. 25,000.00 (vi) For Permanent Disability -Rs. 30,000.00 ---------------- Total -Rs.8,61,800.00 ----------------
3. The nitty-gritty of the grounds of appeal as stood exposited from the
grounds of appeal could be portrayed thus:
The Tribunal erroneously adopted the multiplier method and accordingly,
awarded the compensation of Rs.8,61,800/-.
4. The point for consideration is as to whether the Tribunal arrived at
the just compensation?
5. A re’sume’ of facts absolutely necessary and germane for the disposal
of this appeal would run thus:
The petitioner at the relevant time of the accident was working as driver
in Tamil Nadu State Transport Corporation. However, he sustained injury not
while he was discharging his duty as the driver, but as the pillion rider on a
two wheeler. When a Tata Sumo car dashed as against him and made him to sustain
injuries. Thereupon, it appears, he filed M.C.O.P for claiming compensation.
6. The main thrust of the argument of the learned Counsel for the
appellant, Insurance Company is that the Tribunal ought not to have applied the
multiplier system, when there is nothing on record to show that the claimant was
made to live a vegetative life or idle life.
7. The learned Counsel for the appellant would place reliance on the order
of this Court dated 30.04.2003 in W.P.No.5576 of 2003. The operative portion of
it, is extracted hereunder for ready reference:
“3. Without going into the merits of the claims of the petitioner, the
first respondent is directed to consider the said representation in the light of
G.O.Ms.No.746 dated 2.7.1981 and pass appropriate orders within a period of four
weeks from the date of receipt of a copy of this order.”
He would develop his argument that this Court directed the Transport Corporation
to consider the claimant for some other job.
8. During arguments, the learned Counsel for the claimant himself produced
a copy of the proceedings dated 28.06.2003 issued by the Transport Corporation
which would demonstrate that the Transport Corporation assured the claimant that
in compliance with the order of this Court, he would be considered for some
other job in seriatim as they are maintaining a list of persons who have to be
accommodated in Government service by way of alternative employment.
9. The learned Counsel for the claimant would air the grievance of the
claimant that for the past four years, the Transport Corporation is simply
keeping quiet without providing any job and as such, he should be treated as the
one who has been made to lead a vegetative life or idle life and that too in
view of the Transport Corporation actually terminated him from the job on the
ground that he was unfit to function as a driver. There is no dispute relating
to the fact that the Transport Corporation having terminated the service of the
claimant as a driver on the ground of disability sustained by him in the
aforesaid accident. However, they promised him that a job would be given in
seriatim depending upon the educational qualifications and other eligibilities
and experiences. As such, it is clear that the very thing that the petitioner
has opted to continue in the job and also the fact that the petitioner even now
is ready to get alternative employment from the Transport Corporation would
speak by itself that he has not been made to lead a vegetative or idle life.
10. At this juncture, this Court could refer to the disability
certificate, Ex.A.16, marked before the Tribunal. Accordingly, P.W.4, the
Doctor was examined on the side of the claimant who would opine that the
claimant sustained 46% of permanent disability.
11. The learned Counsel for the appellant would correctly argue that 46%
permanent disability arrived at by the Doctor cannot be taken as the criterion
for awarding the compensation, because the Doctor took into account the old
fracture in the left ankle also which the claimant sustained under different
circumstances and not in the accident referred to supra.
12. The perusal of the Accident Register would buttress and fortify the
argument of the learned Counsel for the appellant that in the Accident Register
dated 06.02.2001, which emerged soon after the accident relating to this case,
there was no reference to any injury sustained by him on the left leg. In the
typed set of papers, at page No.17, it is admitted by both sides that there is
reference to the sole fracture sustained by the claimant in his talus left
ankle in addition to the fracture of both bones in right leg 1/3 and right
ankle which he sustained in the accident referred to herein. Putting together
the disabilities found in the right and left leg, the Doctor arrived at 46%
permanent disability. But, ignoring the old fracture sustained by the claimant
in connection with some other accident, if the matter is viewed, at the most by
any liberal standard, the permanent disability could be quantified at only 35%
and that too taking a cue from the I Schedule Part II, Serial No.19 to the
Workmen’s Compensation Act that even amputation below the knee is quantified at
60% under the Workmen’s Compensation Act. Here, there is a fracture in the
ankle and hence, 35% permanent disability could be taken as the appropriate
factor for assessing the compensation.
13. In view of the discussion supra and also the circumstances highlighted
above, it is crystal clear that multiplier method cannot be applied. It is just
and necessary to refer to the decision of this Court 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”.
14. A mere perusal of the aforesaid decision would clearly show that the
only in cases where a person is made to lead a vegetative or idle life, the
question of applying the multiplier system would arise. No doubt, in this case,
the claimant driver was terminated from service. However, as per the direction
of this Court, the Transport Corporation also agreed as found set out supra, to
give alternative employment.
15. Hence, in such a case, the claimant would be estopped from contending
that he is totally unfit for any job and that he was incapacitated from earning
any income. Taking into consideration the age of the driver, i.e, 31 years, at
the time of the accident, for each percentage of permanent disability,
Rs.2,000/- could be awarded and accordingly, if worked out, Rs.70,000/- (Rupees
Seventy Thousand only) could be awarded as compensation under the head
‘permanent disability’. Towards pain and sufferings, the compensation could be
Rs.30,000/- (Rupees Thirty Thousand only) and under the head, transport
expenses, a sum of Rs.10,000/- as awarded by the Tribunal is confirmed. For
extra nourishment, the Tribunal awarded a sum of Rs.5,000/- which in my opinion,
could be enhanced to Rs.10,000/- taking into account the nature of the injury
sustained by the claimant. The Tribunal even without appropriate medical bills,
awarded a sum of Rs.20,000/- which requires no interference in view of the
injury sustained by him. Towards loss of income, no amount was awarded. Even
assuming that he might have been paid salary during such period of treatment and
during the convalescence period, it is obvious that but for the accident, he
might have encashed the leave and hence, a sum of Rs.10,000/- could be awarded
cutting across technicalities. As such, the following formula emerges:
(i) Towards Permanent Disability – Rs.70,000.00
(ii) Towards Pain and Sufferings – Rs.30,000.00
(iii) Transport Expenses – Rs.10,000.00
(iv)Extra Nourishment – Rs.10,000.00
(v) Medical Expenses – Rs.20,000.00
(vi) Loss of Income – Rs.10.000.00
—————
-Rs.1,50.000.00
—————
16. In the result, this Civil Miscellaneous Appeal is partly allowed and
the compensation arrived by the Tribunal is reduced to Rs.1,50,000/- (Rupees
One Lakh and Fifty Thousand only) and the interest at the rate of 7.5% awarded
by the Tribunal remains unaltered. Consequently, connected M.P.(MD)No.2 of
2007 is also closed. No costs.
rsb
To
The Motor Accidents Claims Tribunal cum
III Additional Sub Court,
Madurai.