Madras High Court
United India Insurance Co.Ltd vs Lenin on 24 October, 2008
Author: R.Sudhakar
Bench: R.Sudhakar
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 24.10.2008 Coram The Honourable Mr. Justice R.SUDHAKAR C.M.A.No.3225 of 2008 and M.P.No.1 of 2008 United India Insurance Co.Ltd., Tindivanam .. Appellant vs. 1.Lenin 2.Radha .. Respondents * * * Civil Miscellaneous Appeal is filed against award and decree dated 29.06.2007 MCOP.No.209/06 on the file of the MACT (Sub-Court) at Dharmapuri. For Appellants : Mr.T.Ravichandran For R1 : Mr.M.Selvam, P. Malliga JUDGMENT
The Insurance Company has filed this appeal, challenging the award and decree dated 29.06.2007 MCOP.No.209/06 on the file of the MACT (Sub-Court) at Dharmapuri.
2. It is the case of injury. The accident in this case happened on 29.9.2004. The injured claimant Lenin, said to be 18 years old is employed as a coolie was travelling in a TVS Moped as a pillion rider. At that time a lorry insured with the appellant driven by its driver in a rash and negligent manner hit the two wheeler and in that accident, the said Lenin suffered multiple injuries. He was taken to Government hospital, Uthangarai and was treated as inpatient. A complaint was registered against the driver of the lorry.
3. In the accident it is stated that the claimant sustained dislocation of the right leg joint and fracture of the right leg. He also suffered other abrasion and lacerated injury. In support of the claim, the claimant was examined as P.W.1 and doctor was examined as P.W.2. Ex.A.1, First Information Report dated 29.9.2004, Ex.A2, Copy of the Accident report dated 22.10.2004, Ex.A3, Copy of the Insurance certificate, Ex.A4, permanent disability certificate dated 28.2.2007 and Ex.A.5, x-ray report were marked on behalf of the claimants. No oral or documentary evidence was let in on behalf of the appellant/respondent before the Tribunal.
4. The finding of negligence on the part of the driver of the lorry which caused accident and the liability of the insurance company to compensate the company is not in dispute. No such plea was raised by the counsel for the appellant.
5. The only contention raised by the counsel for the appellant is on the quantum of compensation. The issue relating to compensation was decided by the Tribunal in paragraph 7 in answer to issue No.2. The age of the claimant is said to be 18 years and it is not in dispute. The income of Rs.3,000/- claimed is also not in dispute. The disability is assessed at 25% by the doctor in Ex.A4. The Tribunal in this case fixed the loss of income based on the disability assessed at 25% by applying multiplier '18'. The total loss of income to the claimant was fixed at Rs.1,08,000/-. The following amounts were granted with 7.5% interest.
Loss of income due to disability - Rs.1,08,000/-
Pain and suffering - Rs. 35,000/-
Medical Expenses - Rs. 20,000/-
Future medical expenses - Rs. 15,000/-
Loss of Happiness - Rs. 15,000/-
Extra Nutrition - Rs. 4,000/- Transport - Rs. 2000/- Other Expenses - Rs. 2000/-
Thus, a total sum of Rs. 2,01,000/- was granted as compensation with interest at the rate of 7.5%.
6. Learned counsel for the appellant contended that the present case does not qualify for adopting the multiplier method. He has also stated that once compensation is granted for pain and suffering then the sum of Rs.5000/- granted for loss of happiness is not justified.
7. Heard the learned counsel for the respondents/claimants, who stated that the injured claimant, is 18 years old coolie and he was in hospital for a period of one month. He stated that the claimant cannot work as a coolie as before and due to the fracture of the knee, he cannot lift weight. His earning capacity is very much affected. Therefore, suitable compensation should be granted at least for the disability assessed. He relied upon the Division Bench Judgement reported in 2005 ACJ 1483 = 2005(1) CTC 38 = 2005(1) TN MAC 87 (DB) (United India Insurance Co. Ltd., v. Veluchamy and another). Paragraph 11 of the decision is as follows:
(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 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."
8. In this case, there is no finding by the Tribunal that by the nature of injury suffered by the injured claimant, his earning capacity and employment is totally affected. There is no finding that the disablement in this case assessed by the doctor is such that his earning capacity is lost for the rest of his life. There is no material to show that the injured claimant will be idle for the rest of his life and consequently, there will be total loss of income. Therefore, the question of applying multiplier method in this case does not arise as the parameters of paragraph 11 of the Division Bench of this Court in United India Insurance Co. Ltd., v. Veluchamy and another reported in 2005 ACJ 1483 are not attracted to the facts of the present case. The multiplier method adopted by the Tribunal, therefore, clearly is an error. Accordingly, the compensation granted based on multiplier method cannot be justified.
9. Therefore, a sum of Rs. 1.08.000/- as compensation based on 18 multiplier is set aside as also the sum of Rs.15,000/- for loss of happiness. However the compensation based on the disability assessed at 25% is granted and the award is modified and the claimant is entitled to compensation as follows:
Heads Amount Awarded by Tribunal Modified Award For disability assessed at 25% NIL Rs. 45,000 Loss of income Rs.1,08,000/-
NIL Loss of happiness Rs.15,000/-
NIL Pain and sufferings Rs.35,000/-
Rs.35,000/-
Medical expenses Rs.20,000/-
Rs.20,000/-
Medical expenses including physiotherapy NIL Rs. 15000/-
Transport to hospital Rs.2000/-
Rs. 5000/-
Extra nourishment
Rs.4000/-
Rs. 7500/-
Other expenses
Rs.2000/-
NIL
Attendant Charges
NIL
Rs. 3000/-
Total
Rs.2,01,000/-
Rs.1,30,500/-
10. In the result quantum of compensation stands reduced to Rs.1,30,500/- from Rs.2,01,000/-. The interest of 7.5% per annum granted by the Tribunal is confirmed since the accident happened in the year 2004 and the award was passed in the year 2007. The appellant seeks eight weeks time to deposit the amount and such deposit the claimant is entitled to withdraw the amount as per the order of this Court.
Civil Miscellaneous Appeal is ordered on the above terms. No costs. Consequently, connected miscellaneous petition is closed.
24.10.2008 Internet: Yes kua R.SUDHAKAR,J kua To Motor Accidents Claims Tribunal (Sub-Court) at Dharmapuri.
C.M.A.No.3225 of 200824.10.2008