National Insurance Company Ltd. vs P. Arunachalam and B. Nanthini Devi

P.P.S. Janarthana Raja, J.—When the appeal came up for admission, by consent, the main appeal itself is taken up for final hearing.

The appeal is preferred by the Appellant-Insurance Company against the judgment and decree dated 26.06.2010 made in M.C.O.P. No. 53 of 2006 on the file of the Motor Accident Claims Tribunal, Chief Judicial Magistrate Court, Namakkal.

The background facts in a nutshell, are, as follows:

On 22.08.2005, at about 4.00 p.m., the first Respondent/P. Arunachalam met with motor vehicle accident. While the claimant was riding his T.V.S. XL Super Moped bearing Registration No. TN-28-J-0556 in Namakkal-Paramathi Road near ASM Automobiles at Namakkal, a mahendra Cap King van bearing Registration No. TN-37-S-8480, belonging to the second Respondent herein, came in a rash and negligent manner and also at high speed and hit the first Respondent/claimant. Due to the said impact, the first Respondent/claimant sustained grievous injuries all over the body and fractures. Immediately, after the accident he was admitted in Aravinth Hospital, Namakkal. He claimed a compensation of Rs. 4,00,000/-before the Tribunal. The said van was insured with the Appellant-Insurance Company, who resisted the claim. On pleadings, the Tribunal framed the following issues:

On whose negligence the accident had occurred?

The Appellant-Insurance Company and the second Respondent are liable to pay compensation?

Whether the claimant is entitled to claim compensation? If so, to what extent?

After considering the oral and documentary evidence, the Tribunal held that the accident had occurred only due to the rash and negligent driving of the driver of the van and awarded a compensation of Rs. 4,26,742/- with interest at 7.5% per annum from the date of the claim petition till the date of realisation. The details of the same are as under:

Loss due to 40 % disability Rs. 2,68,800/-

Pain and suffering Rs. 20,000/-

Extra nourishment Rs. 10,000/-

Transport expenses Rs. 5,000/-

Loss of amenities Rs. 5,000/-

Medical expenses Rs. 1,17,942/-

Total Rs. 4,26,742/-

Aggrieved by that award, the Appellant-Insurance Company has filed the present appeal.

The learned Counsel appearing for the Appellant-Insurance Company has questioned only the quantum of compensation awarded by the Tribunal by contending that the amount awarded by the Tribunal is excessive, exorbitant, without basis and justification. He further submitted that the Tribunal wrongly adopted multiplier of ''16''. Therefore, the award passed by the Tribunal is not in accordance with law and the same has to be set aside.

Learned Counsel appearing for the first Respondent/claimant 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. Hence, the order of the Tribunal is in accordance with law and the same has to be confirmed.

Heard the learned Counsel on either side and perused the documents available on record. On the side of the first Respondent/claimant, P. Ws.1 and 2 were examined and Exs.P.1 to P.12 were marked. On the side of the Appellant-Insurance Company, no witness was examined and no document was marked, to substantiate their claim. The claimant was examined as P.W.1. Dr. Sivakumar was examined as P.W.2. Ex.P.1 is the certified copy of First Information Report. Ex.P.2 is the certified copy of Wound certificate. Ex.P.3 and Ex.P.4 are the certified copies of Motor Vehicle Inspector''s reports. Ex.P.5 is the Charge sheet. Ex.P.6 is the certified copy of judgment. Ex.P.7 is the original copy of doctor''s prescriptions. Ex.P.8 is the original copy of medical bills. Ex.P.9 is the original copy of discharge summary. Ex. P.10 and Ex.P.11 are the X-rays. Ex.P.12 is the disability certificate. 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 van and the finding is based on valid materials and evidence.

At the time of the accident, the claimant Arunachalam was aged about 34 years and he was doing an Auto Diesel works and was earning a sum of Rs. 7,000/- per month. P.W.1, in his evidence, has stated that a case has been registered by Namakkal Police Station, in Crime No. 950 of 2005 under Sections 279 and 337 of I.P.C. against the second Respondent. Further, in his evidence, the claimant stated that he sustained fractures and grievous injuries all over the body. Immediately after the accident, he was admitted in Aravinth Hospital, Namakkal and later he was shifted to Coimbatore Ganga Hospital for better treatment and there he took treatment as inpatient for more than one month and till he is taking treatment as out patient. P.W.2 is the doctor, who examined the claimant, in his evidence has stated that the claimant sustained fracture in his left thigh and sustained injuries all over the body. Due to the same, he is unable to walk, sit and lift any articles. After examination, P.W.2-Doctor determined the disability at 40% and further stated that 40% disability affects the earning capacity of the claimant. Ex.P.12 is the disability certificate. The Tribunal considered the fact that the claimant was a self employee, fixed the monthly income at Rs. 3,500/- and determined the annual income at Rs. 42,000/-. After considering the age of the claimant as 34 years, the Tribunal has adopted the multiplier ''16''. The loss of income due to 40% disability was determined as follows:

Rs.42,000/- x 16 x 40/100 = Rs. 2,68,800/-

The learned Counsel appearing for the Appellant-Insurance Company vehemently contended that the Tribunal wrong in adopting the multiplier of ''16''. It is well settled principle that when the disability affects 100% earning capacity, for determining loss of income, multiplier method should be adopted and in the case of United India Insurance Company Ltd., Branch Officer Vs. Veluchamy and Another, , 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:

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 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.

The Supreme Court in the case of Raj Kumar v. Ajay Kumar and Anr. 2010 (2) TN MAC 581 (SC) held as follows:

We may now summarise the principles discussed above:

(i) All injuries (or permanent disabilities arising from injuries), do not result in Loss of Earning Capacity.

(ii) The percentage of Permanent Disability with reference to the whole body of a person, cannot be assumed to be the percentage of Loss of Earning Capacity. To put it differently, the percentage of Loss of Earning Capacity is not the same as the percentage of Permanent Disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that percentage of Loss of Earning Capacity is the same as percentage of Permanent Disability).

(iii) The Doctor who treated an injured-Claimant or who examined him subsequently to assess the extent of his Permanent Disability can give evidence only in regard the extent of Permanent Disability. The Loss of Earning Capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.

(iv) The same Permanent Disability may result in different percentages of Loss of Earning Capacity in different persons, depending upon the nature of profession, occupation or job, age, education and other factors.

After considering the principles enunciated in the judgment cited supra, let me consider the facts of the present case. Considering the oral and documentary evidence and also the injuries sustained by the claimant, I am of the view that the correct multiplier that should be adopted in this case is ''10'' instead of ''16''. It is also clear that the disability determined by the doctor may differ 5 to 10% between two doctors. Therefore, the disability fixed by the doctor is reduced to 30%. There is no serious dispute regarding the same. If multiplier ''10'' is adopted, the loss of income works out to Rs. 1,26,000/-(Rs. 3,500/- x 12 x 10 x 30/100) as against Rs. 2,68,800/- awarded by the Tribunal. The Tribunal has awarded a sum of Rs. 20,000/- towards pain and suffering. The claimant took treatment for more than one month in various hospitals. Considering the same, the amount awarded under this head is very reasonable and the same is confirmed. The Tribunal has awarded a sum of Rs. 10,000/- toward extra nourishment. Hence the amount awarded under this head is very reasonable and the same is confirmed. The Tribunal has awarded a sum of Rs. 5,000/- towards transport expenses. The claimant took treatment for more than one month in various hospitals. Considering the same, the amount awarded under this head is very reasonable and the same is confirmed. The Tribunal has awarded a sum of Rs. 5,000/-towards loss of amenities. The amount awarded under this head is very reasonable and the same is confirmed. The Tribunal has awarded a sum of Rs. 1,17,942/- towards medical expenses. Ex.P.8-medical bills and Ex.P.9-discharge summary are marked to prove the same. Hence the amount awarded under this head is very reasonable and the same is confirmed. The Tribunal has not awarded any sum towards loss of income during treatment period. Considering the facts and circumstance of the case, it would be reasonable to award a sum of Rs. 15,000/- under the head of loss of income during the treatment period. The Tribunal has awarded interest at the rate of 7.5% per annum from the date of petition till the date of realisation. The accident was occurred on 22.08.2005. Keeping in view the prevailing rate of interest at the time of the accident and the date of award, I feel that the rate of 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 due to 30 % disability Rs. 1,26,000/-

Pain and suffering Rs. 20,000/-

Extra nourishment Rs. 10,000/-

Transport expenses Rs. 5,000/-

Loss of amenities Rs. 5,000/-

Medical expenses Rs. 1,17,942/-

Loss of income (during the treatment period) Rs. 15,000/-

Total Rs. 2,98,942/-

Rounded off to Rs. 3,00,000/-

Therefore, the claimant is entitled to the modified compensation of Rs. 3,00,000/- with interest at the rate of 7.5% per annum from the date of petition as against the compensation of Rs. 4,26,742/- awarded by the Tribunal.

In these circumstances, the Appellant-Insurance Company is directed to deposit the modified compensation of Rs. 3,00,000/- with interest at the rate of 7.5% per annum, less the amount, if any, already deposited, within a period of six weeks from the date of receipt of a copy of this order. On such deposit, the claimant is permitted to withdraw the modified award amount of Rs. 3,00,000/- with interest at the rate of 7.5% per annum from the date of petition, after adjusting the amount, if any, already withdrawn on making proper application.

With the above modification, the Civil Miscellaneous Appeal is disposed of. No costs. Consequently, connected Miscellaneous Petition is closed.