P.P.S. Janarthana Raja, J.@mdashThe appeal is preferred by the appellant-Insurance Company against award dated 05.10.2004 made in MCOP
No. 1407 of 2002 by the Motor Accident Claims Tribunal, Addl. District Court, Fast Track Court No. 5, Coimbatore.
2. Background facts in a nutshell are as follows:
The injured Kumar met with a Motor Traffic accident on 24.06.2002 at about 21.30 hours. The said injured was working as a cleaner in the 2nd
respondent''s lorry bearing Registration No. TN27 A 4995. The said lorry was driven by the driver in the regular course of employment from east
to west in Pollachi to Palakadu Road. When the lorry was nearing Mennachipuram, Pollachi, the driver of the lorry lost his control and driven the
same in a rash and negligent manner. Due to the same, it was capsized and the claimant sustained grievous injuries, fracture at right femar, right
knee, right hip, back bone and injuries all over the body. He was immediately admitted in Aiwa Hospital, Pollachi. He claimed a sum of Rs.
5,00,000/- as compensation. The said lorry was insured with the appellant-Insurance Company, who resisted the claim. On pleadings the Tribunal
framed the following issues:
1. Who is responsible for the accident? Whether compensation has to be awarded? If so, who has to pay the compensation?
2. What is the compensation the claimant is entitled to?
After considering the oral and documentary evidence, the Tribunal held that the accident had occurred only due to rash and negligent driving of the
driver of the lorry and awarded a compensation of Rs. 10,84,270/- with interest at 9% per annum from the date of petition and the details of the
same are as under:
Loss of earning capacity due to Rs. 5,76,000/-
100% disability.
Disability Rs. 1,00,000/-
Marital Life Rs. 1,00,000/-
Attendent Charges Rs. 30,000/-
Future Attendent Charges Rs. 1,00,000/-
Future pain and sufferings Rs. 25,000/-
Pain and sufferings Rs. 10,000/-
Extra Nourishment charges Rs. 5,000/-
Medical Expenses Rs. 1,38,270/-
Rs. 10,84,270/-
Aggrieved by that award, the appellant-insurance company has filed the present appeal.
3. The learned Counsel appearing for the appellant-insurance company, questioned only quantum of compensation awarded by the Tribunal and
vehemently contended that the amount awarded by the Tribunal is excessive, exorbitant and also without basis and justification. He has also
contended that when the Tribunal has awarded Rs. 5,76,000/- towards loss of earning capacity due to 100% disability, it ought not to have
awarded further sum of Rs. 1,00,000/- towards disability and also another Rs. 1,00,000/- towards loss of future attendant charges. The Tribunal
has also awarded excess amount towards marital life and pain and sufferings. Therefore, he contended that the order passed by the Tribunal is not
in accordance with law and the same has to be set aside.
4. The Learned Counsel appearing for the respondents/claimants submitted that the Tribunal had considered all the relevant materials and evidence
on record and came to the right conclusion and awarded a just, fair and reasonable compensation. It is a question of fact. It is not a perverse
order. Hence the order of the Tribunal is in accordance with law and the same has to be confirmed.
5. Heard the counsel and perused the document on record. On the side of the claimants, P.Ws.1 to 5 were examined and documents Exs.P1 to
P6 were marked. Injured himself was examined as P.W.1. One Natarajan, who was assisting the injured was examined as P.W.2. Dr. Mohd.
Subair, who treated the injured was examined as P.W.3. Bhuvaneswari, wife of the injured was examined as P.W.4. One Ramakrishnan, who was
the manager of the lorry service was examined as P.W.5. Ex.P1 is the copy of the First Information Report. Ex.P2 is the wound certificate. Ex.P3
is the discharge summary given by Ganga Medical Hospital. Ex.P4 is the series of Medical Bills. Ex.P5 is the disability certificate. Ex.P6 is the x-
ray. On the side of the appellant-insurance company, no one was examined and no documents were marked to substantiate their claim. After
considering the above oral and documentary evidence, the Tribunal had given a categorical finding that the accident had occurred only due to the
rash and negligent driving of the driver of the lorry. It is a question of fact and based on the valid materials and evidences. Hence, the same is
confirmed.
6. At the time of the accident, the injured was 38 years old. He is a lorry cleaner. P.W.1, in his evidence, has stated that he was earning Rs.
2,0007- per month. Further, it is stated that it is only the driver of the lorry, who caused the accident and the driver of the lorry was also charge
sheeted by the Anaimalai Police Station in Cr. No. 213 of 2002 under Sections 279 and 337 of I.P.C. Immediately, after the accident he was
admitted in Aiwa Hospital and thereafter referred to Ganga Hospital for better treatment. Further in his evidence he has stated that he sustained
fracture in his hip and also in the right knee and the spinal cord is completely damaged and also multiple injuries all over the body. Due to the same
he is paralyzed below the knee and he has to be constantly attended by somebody. PW3 - Dr. Md. Subair, an Orthopaedic Surgeon, who
examined the injured on 22.06.2002, has stated in his evidence that a surgery has been done in the spinal cord and there is a scar and also
fractures in the right knee and right thigh. He assessed 100% disability and stated that the disability affects his future earning capacity. The disability
certificate is Ex.P5. Ex.P2 is wound certificate and Ex.P3 is discharge summary given by Ganga Hospital, Coimbatore. Ex.P2 reads as follows:
List of Injuries:
1. Tenderness over D1 and 11 is spinous region and paraspinal muscles. Neurology paraplegia cervical since clinically normal.
2. Compression and distraction test positive in pelvis multiple abrasion in upper third of thigh interior aspect from groin to distal. Tenderness
present over scarpas triangle. Indirect trochanteric tenderness present.
3. Tenderness present in (R) knee in distal end femur knee movements are severely painful and restricted. There is no distal vascular deficits.
Xray Reports:
CT Scan Reports:
Right Hip: Comminuted fracture roof of right acetabulum.
Comminuted Fracture posterior hip acetabulum Left Hip: Fracture anterior hip left acetabulum.
Public: Superior and Inferior rami on left side symphosis public fracture right side.
Left Side: ST Joint widened;
Vertical fracture of sacral body of 55 and left transverse part of S4
D11 Vertebra left, right lamina is fracture.
L1 Burst fracture of L 1 vertebral body with free fragments in the spinal canal with lumbar canal steosi with subluxation of facts.
Xray Reports:
Vertical split displaced medical condyle fracture right femur.
Opinion:
In my opinion the injury No. (s) 1, 2, & 3 are grievous in nature.
Sd
Dr. R. Krishna kumar
Orthopaedic Surgeon.
Diagnosis: (R) Acetabulum Fracture
(L) Pubic Rami Fracture
Medial Condyle Fracture
(R) Femur
Burst Fracture of L1 Vertebra With Paraplegia
D12 Vertebra Fracture.
From a reading of the above documentary evidence, it is clear that the claimant sustained hip fracture and also spinal cord injury and other
fractures. Due to the injuries, he was paralysed below the knee and he was unable to move, sit and stand. He has to be attended by other person
for his normal activities. There is also complete lack of bowel movement. These facts were also corroborated by the Tribunal by seeing the
claimant in the Court. After taking into consideration all the material evidence on record and statement of PW2, the wife of the injured, who
deposed that her husband was paralysed below his knee and he has to be always attended by somebody, the Tribunal has come to the correct
conclusion that there is 100% disability. Ex.P5 is the disability certificate given by PW3-Doctor, one who assessed the disability. So, there is no
dispute that there is 100% disability in the present case. In such circumstances, for the purpose of computing the loss of income, the correct
method to be adopted is multiplier method. In the case of United India Insurance Company Ltd., Branch Officer Vs. Veluchamy and Another, ,
wherein the Division Bench of this Court has formulated certain guidelines to be followed in the matter of adopting multiplier method, precisely in
the case of permanent disability, which reads as follows.
11. 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 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 the 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 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 likelyhood 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.
7. The Supreme Court in the case of A.P.S.R.T.C. Rep. By its Chief Law Officer v. M. Pentaiah Chary 2007 (2) TN MAC 152 (SC), held as
follows:
13. We therefore, fail to visualise that in a case of this nature a claimant can be deprived of a reasonable amount of Compensation despite the fact
that he has permanently lost his capacity to earn and remain dependent on other besides physical sufferance of such magnitude as to why the
multiplier suggested by the parliament should not be accepted.
14. We do not, however, intend to lay down a general law. We wish to point out that minimum Compensation payable in a case of this nature
should be considered from the sufferings of disability undergone by the victim. We are not suggesting that in certain situations, the multiplier
specified in the Second Schedule cannot and should not be altered but therefore there must exist strong circumstances.
Taking note of the principles enunciated in the above judgments, I am of the view that the Tribunal is correct in adopting multiplier method in the
present case and the same is confirmed. In the present case, the claimant was earning Rs. 2,0007- per month. The Tribunal, taking into
consideration that he would have earned more in future and after taking into consideration the age, fixed the future monthly income at Rs. 4,000/-
and added the existing income of 50% at Rs. 2,000/- and total works out to Rs. 6,000/- and taken the average of Rs. 3,000/-, the Tribunal has
fixed the monthly income at Rs. 3,000/-. There is no dispute regarding the same. So the Tribunal has correctly fixed the monthly income at Rs.
3,0007-. The age of the injured was 38 years at the time of the accident. The Tribunal has adopted the multiplier of 16 in accordance with the
schedule. There is also no dispute regarding the same. The loss of income due to permanent disability works out to Rs. 5,76,000/- (Rs. 3,000/- x
12 x 16). Therefore, the Tribunal is correct in awarding of Rs. 5,76,000/- towards the loss of income due to permanent disability. Therefore, the
same is confirmed. The Tribunal has awarded a further sum of Rs. 1,00,000/- each towards disability and future attendant charges. After awarding
Rs. 5,76,000/- towards 100% disability, the amounts awarded by the Tribunal towards disability and loss of future attendant charges i.e, Rs.
1,00,000/- each are unwarranted and therefore, they are deleted. The Tribunal has also awarded a sum of Rs. 1,00,000/- towards marital life.
Here the injured was paralized below the hip and the amount awarded by the Tribunal is little bit excess and it is reasonable to award Rs. 75,000/-
as against Rs. 1,00,000/- awarded by the Tribunal. The Tribunal has also awarded a sum of Rs. 30,000/- towards attendant charges. The injured
was completely bedridden and he is paralysed. He has to be constantly attended by somebody. Therefore, the Tribunal has correctly awarded a
sum of Rs. 30,000/- under this head and the same is confirmed. The Tribunal has also awarded a sum of Rs. 25,000/- towards future attendant
charges and also a sum of Rs. 10,000/- towards pain and sufferings. After taking into consideration that a sum of Rs. 30,000/- has already been
awarded towards attendant charges, it is reasonable to award a sum of Rs. 25,000/- towards pain and sufferings as against Rs. 35,000/- (Rs.
25,000/- towards attendant charges and Rs. 10,000/- towards Pain and Sufferings) awarded by the Tribunal. The Tribunal has awarded a sum of
Rs. 5,000/- towards Extra Nourishment. The amount awarded is very low. The injured was first admitted in Aiwa Hospital and later admitted in
Ganga Hospital. He was hospitalised for a period of 20 days and after discharge also he is completely bedridden. After taking into consideration of
the same, it is reasonable to award Rs. 15,000/- towards Extra Nourishment, as against Rs. 5,000/- awarded by the Tribunal. The Tribunal has
also awarded a sum of Rs. 1,38,270/- towards Medical Bills. Ex.P4 is series of Medical Bills. It is an actual expenditure and the amount awarded
under this head is very reasonable and therefore, it is rounded off to Rs. 1,39,000/- as against Rs. 1,38,270/- awarded by the Tribunal. The
Tribunal has not awarded any amount towards Transport charges. After the accident, he was admitted in Aiwa Hospital and Ganga Hospital and
was treated as inpatient. Later, he was discharged and he was attended by Doctors and he took treatment in various hospitals. Therefore it is
reasonable to award a sum of Rs. 25,000/- towards Transport charges. The Tribunal has awarded interest at the rate of 9%. After taking into
consideration the date of accident, date of award and also the prevailing rate of interest during that period, the interest awarded by the Tribunal is
very reasonable and the same is confirmed. The details of the modified compensation as per the above discussion are as under:
Loss of earning capacity due to
100% disability Rs. 5,76,000/-
Marital Life Rs. 75,000/-
Attendant charges Rs. 30,000/-
Pain and sufferings Rs. 25,000/-
Extra Nourishment Rs. 15,000/-
Medical Bills Rs. 1,39,000/-
Transport charges Rs. 25,000/-
Total. Rs. 8,85,000/-
Therefore, the claimant is entitled to modified compensation of Rs. 8,85,000/- with interest at 9% from the date of petition as against Rs.
10,84,270/- awarded by the Tribunal.
8. It is stated by the learned Counsel appearing for the appellant that the appellant-Insurance company has already deposited Rs. 5,00,000/- with
interest. Under these circumstances, appellant-insurance company is directed to deposit the balance modified compensation of Rs. 3,85,000/- with
interest within a period of eight weeks from the date of receipt of a copy of this order. On such deposit, the claimant is permitted to withdraw the
same on making proper application.
9. With the above modification, the Civil Miscellaneous Appeal is disposed of. No costs.
