S. Udayakumar vs E. Chinnaiah

As both the above appeals arose out of the same award passed by the Motor Accidents Claims Tribunal (Small Causes Court-II), Chennai, in and by award dated 11.11.2013 in M.C.O.P.No.2799 of 2011, they are disposed of by way of this common judgment.

C.M.A.No.678 of 2014 has been filed by the claimant for enhancement of the compensation amount stating that the compensation amount awarded by the Tribunal cannot be said to be an adequate compensation. Whereas, C.M.A.No.1077 of 2014 has been filed by the Insurance Company challenging the quantum of compensation awarded by the Tribunal, contending that the compensation amount awarded by the Tribunal is extremely on the higher side. Since both the appeals have been filed questioning the quantum of compensation alone, I am not dealing with the other aspects of the award passed by the Tribunal.

So far as the quantum of compensation is concerned, it is the case of the claimant that on account of the accident involving the vehicle insured with the Insurance Company herein, he had sustained compound fracture of right leg, hip, ball & socket and right leg thigh bone, dislocation of bone on both hands elbows, severe injury in the back skull, internal injury in skull and abdomen, and multiple injuries all over the body.

In order to prove the disability suffered by the claimant, before the Tribunal, the claimant examined himself as P.W.1 besides examining one Dr.Amarnath R.Sowlee as P.W.2 and marked three documents as Ex.P.1 to Ex.P.3. The Doctor-P.W.2 had stated in his evidence that on account of the disability suffered by the claimant, he would find it difficult to squat on the floor and he cannot stand for long time and he cannot carry on his avocation as a painter. The Doctor-PW.2 has assessed the disability suffered by the claimant at 25%.

The Tribunal, after analysing the entire evidence available before it, by taking a sum of Rs.6,000/- as notional monthly income of the victim/claimant and by applying the multiplier 16, has awarded a sum of Rs.2,88,000/- as compensation under the head of loss of earning capacity, in proportion to 25% disability suffered by the victim/claimant. That apart, the Tribunal has also awarded compensation under conventional heads and passed an award for a total sum of Rs.4,50,000/- as compensation. Aggrieved over the quantum of compensation, the Insurance Company has filed the appeal in C.M.A.No.1077 of 2014. Not being satisfied by the quantum of compensation, the claimant has filed the appeal in C.M.A.No.678 of 2014.

It is the submission of the learned counsel for the Insurance Company that it is not a fit case to apply multiplier method. In this regard, the learned counsel for the Insurance Company, by inviting the attention of this Court to the evidence of P.W.2-Doctor, submitted that the P.W.2-Doctor had admitted in his cross-examination that he has assessed only the physical disability suffered by the victim/claimant and he has not assessed the disability with regard to the loss of earning power of the victim/claimant. When that being so, the Tribunal ought not to have applied multiplier method. Since the Tribunal has applied the multiplier method, it resulted in awarding huge sum as compensation.

Whereas, according to the learned counsel for the claimant, the claimant is a painter by avocation and he sustained Type III Inter Trochantric fracture right femur, for which DHS fixation has been done to the victim/claimant. Since he is a painter by avocation, it could be easily presumed that he cannot stand for long time to carry on his avocation. In fact, in chief-examination, P.W.2-Doctor had stated that the victim/claimant cannot carry on his avocation in view of the disability suffered by him. Under such circumstances, no infirmity could be found in the award passed by the Tribunal in respect of the loss of earning capacity. It is further submitted by the learned counsel for the claimant that while awarding compensation for loss of earning power, the Tribunal failed to add 50% of the amount for loss of future prospects. In this regard, the learned counsel for the claimant relied on the decisions of the Hon''ble Supreme Court reported in 2014(1) TN MAC 473 (SC) [Sanjay Kumar v. Ashok Kumar] and 2010(2) TN MAC 356(SC) [Yadava Kumar v. The Divisional Manager, National Insurance Co. Ltd., and another].

By way of reply, the learned counsel for the Insurance Company has submitted that in this case, the claimant has not produced any document to prove his monthly income. Under such circumstances, the question of adding 50% of the income towards future prospects of the income earned by the claimant does not arise.

Keeping the submissions made on either side, I have carefully gone through the entire materials available on record.

It is the main submission of the learned counsel for the Insurance Company that P.W.2-Doctor had not assessed the disability suffered by the claimant on the basis of loss of earning power of the claimant and he had assessed only the physical disability suffered by the claimant. Under such circumstances, the question of applying the multiplier method does not arise in this case.

But, I find from the materials available on record that the claimant, who is painter by avocation, had sustained Type III Inter Trochantric fracture right femur, for which DHS fixation has been done. From the nature of injury sustained by the victim/claimant, it could be presumed that he cannot stand for long time to carry on his avocation. Even in the chief-examination of P.W.2-Doctor, he has stated that the claimant would find it difficult to carry on his avocation. Therefore, I am of the opinion that absolutely there is no infirmity in the compensation amount awarded by the Tribunal under the head of loss of earning power.

At the same time, it is the submission of the learned counsel for the Insurance Company that the claimant has not produced any document to prove the monthly income earned by him. Hence, according to the learned counsel for the Insurance Company, in the absence of any document to show the monthly income earned by the claimant, the Tribunal ought not to have fixed a sum of Rs.6,000/- as monthly income of the claimant. Therefore, adding further 50% of the income towards future prospects does not arise in this case.

In the judgment of the Hon''ble Supreme Court, relied on by the learned counsel for the claimant, reported in 2014(1) TN MAC 473 (SC) [Sanjay Kumar v. Ashok Kumar], it has been held that a labour, who is involved in unorganized sector and doing own business, cannot be expected to produce documents to prove his monthly income. In view of the dictum laid down in the said judgment, I am of the opinion that in the instant, since the claimant has not produced any document to prove his monthly income, it does not mean that the calculation for compensation amount cannot be made by applying multiplier method, by adding future prospects. However, considering the facts and circumstances, I am of the opinion that in the absence of any documentary evidence, a sum of Rs.4,500/- could be taken as monthly income of the victim/claimant. If a sum of Rs.4,500/- is taken as monthly income, 50% of the same works out to Rs.2,250/-. For the loss of future prospects, a sum of Rs.2,250/- is added to the monthly income, the total amount comes to Rs.6,750/-. If the multiplier 16 is adopted, based on the age of the victim/claimant, who was 32 years at the time of accident, the total amount works out to Rs.3,24,000/- (6750 x 12 x 16 x 25% = 3,24,000/-), which could be just and reasonable compensation for loss of earning power. Hence, the compensation amount of Rs.2,88,000/- awarded by the Tribunal for loss of earning power, in proportion to 25% disability, is hereby enhanced to Rs.3,24,000/-. Further, a sum of Rs.10,000/- awarded by the Tribunal is hereby enhanced to Rs.14,000/- by adding another sum of Rs.4,000/-. Except the above modification, the award passed by the Tribunal is confirmed in all other aspects.

Consequently, the compensation amount of Rs.4,50,000/- (Rupees four lakhs fifty thousand only) awarded by the Tribunal is hereby modified and enhanced to Rs.5,00,000/- (Rupees five lakhs only).

In the result, the appeal filed by the claimant viz., C.M.A.No.678 of 2014 is partly allowed and the appeal filed by the Insurance Company viz., C.M.A.No.1077 of 2014 is dismissed. The Insurance Company is directed to deposit the modified/enhanced compensation amount of Rs.5,00,000/- (Rupees Five Lakhs Only), with interest at the rate of 7.5% per annum, from the date of claim petition till the date of deposit, less the amount if any already deposited, to the credit of the above MCOP, within a period of four weeks from the date of receipt of a copy of this order. On such deposit, the claimant is permitted to withdraw the same, by making necessary application before the Tribunal.

Consequently, connected Miscellaneous Petitions are closed. No costs.