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Judgment
P.R. Shivakumar, J.—This Civil Miscellaneous Appeal has been preferred by M/s. Royal Sundaram Alliance Insurance Co. Ltd./appellant
herein, which figured as 2nd respondent in M.C.O.P. No. 3920 of 2007 on the file of the Motor Accidents Claims Tribunal (Vth Judge, Court of
Small Causes), Chennai. The 1st respondent herein preferred a claim in the above said MCOP against the appellant herein and the 2nd respondent
herein, being the Insurer and Owner respectively of the Trailer Lorry bearing Registration No. TN-04-P-0642, for the injuries sustained by him in
an accident that took place on 28.01.2007 at about 18.10 hours at Barathi Deck 3rd Road, inside the Harbour, Chennai.
According to the 1st respondent herein/claimant, the accident took place due to the rash and negligent driving of the said trailer lorry by its
driver. At the time of the alleged accident, the 1st respondent herein/claimant/injured was proceeding in his motor cycle bearing Registration No.
TN-04-R-8061 and as a result of the rash and negligent driving of the said trailer lorry by its driver, it knocked down the 1st respondent
herein/claimant along with his motor-cycle, which resulted in grievous injuries leading to amputation of his left leg above the knee and also other
injuries on the head and other parts of the body. Calculating a total compensation of Rs. 14,65,000/-, the 1st respondent herein/injured/claimant
restricted his claim to Rs. 10 lakhs alone and preferred the claim petition u/s 166 of the Motor Vehicles Act.
The 2nd respondent herein (1st respondent in MCOP) remained ex-parte and did not contest the case.
The appellant herein (2nd respondent in MCOP) alone contested the claim, not only on the ground available to the Insurance Company u/s
149(2), but also on all other grounds available to the insured, after getting necessary permission u/s 170 of the Motor Vehicles Act. The
appellant/insurer contested the claim made by the 1st respondent herein/injured disputing its liability, on the plea of defence that there was no rash
and negligent act on the part of the driver of the trailer lorry bearing Registration No. TN-04-P-0642, which stood insured with the
appellant/Insurance Company, and also on the question of quantum of compensation.
In the trial, two witnesses were examined on the side of the claimant/injured as P.W. 1 & P.W. 2 and 14 documents were marked as Ex. P.1 to
Ex. P.14. No witness was examined and no document was marked on the side of the appellant herein/insurer. The Tribunal, after considering the
materials brought on record, gave a finding that the accident was due to the rash and negligent driving of the driver of the trailer lorry bearing
Registration No. TN-04-P-0642 belonging to the 2nd respondent herein/owner, which stood insured with the appellant herein/Insurer as on the
date of accident and that hence, the appellant was liable to indemnify the insured by virtue of the contract of insurance. Accordingly, the Tribunal
held that the 2nd respondent herein/owner and the appellant herein/insurer are jointly and severally liable to pay compensation to the 1st
respondent herein/injured for the injuries sustained by him and their consequences.
The Tribunal found that the 1st respondent herein/injured suffered permanent disability to the tune of 70%, assessed the loss of earning capacity
at 70% and awarded a total sum of Rs. 8,96,500/- as compensation, which amount was directed to be paid with interest at the rate of 7.5% per
annum from the date of claim till deposit and also costs.
Though the appellant herein/insurer might have contested the claim made by the 1st respondent herein/injured on the question of negligence also,
the appellant/Insurer has chosen to prefer this appeal only on quantum of compensation, admitting that the accident was due to the rash and
negligent driving of the driver of the trailer lorry belonging to the 2nd respondent herein, which was insured with the appellant herein and that hence,
the appellant herein/insurer of the vehicle is liable to pay reasonable compensation to the injured.
As such, the only question that arose for consideration in this appeal is-whether the amount awarded by the Motor Accidents Claims Tribunal as
compensation is excessive, warranting reduction by this Court?
As pointed out supra, though the appellant/Insurer of the vehicle got permission u/s 170 of the Motor Vehicles Act and contested the claim
before the Motor Accidents Claims Tribunal on the question of negligence as well as quantum of compensation, the appeal is confined to the
question of quantum of compensation alone. The learned counsel for the appellant would submit that though the 1st respondent/injured might have
suffered an injury resulting in the amputation of his left leg above knee and the same was certified to be a permanent disability to the extent of 70%,
the Tribunal committed an error in adopting multiplier method since even after the accident, except the period during which the 1st
respondent/injured received treatment in the hospital, he continued in his avocation for three years and he was drawing the very same pay and that
hence, the Tribunal ought to have held that it was not a fit case to adopt the multiplier method.
It is the further contention of the learned counsel for the appellant that the very fact that the 1st respondent/injured continued his job for three
more years and thereafter, he voluntarily retired from service, should have been taken into account by the Tribunal and that the actual loss, if any, in
the income derived by him during his tenure before his voluntary retirement after the accident and also the difference between the pay and the
pension, if any, after voluntary retirement till the date of his superannuation alone, should have been taken into account and that had the Tribunal
adopted such a method, it would have arrived at a lesser amount than the amount awarded by the Tribunal as compensation towards loss of
earning capacity.
In this regard, the learned counsel for the appellant draws the attention of this Court to the salary statements (subsequent to the date of
accident) produced and marked as Ex. P.7 (series) and would contend that the claimant/injured was drawing a pay ranging from Rs. 11,403/- to
Rs. 12,216/- alone and that the said salary statements do not show any loss of pay. According to the learned counsel for the appellant, when the
1st respondent herein/injured was drawing actual pay ranging from Rs. 11,403/- to Rs. 12,216/- before his voluntary retirement, the Tribunal ought
not to have taken 70% of the said amount towards the loss of income attributable to the loss of earning capacity and hence, the very approach
made by the Tribunal is erroneous warranting interference by this Court. By pointing out the said aspect, the learned counsel for the appellant
wants to project that the Tribunal has awarded a fabulous amount as compensation without taking into account the fact that there was no loss in the
pay drawn by the 1st respondent/injured even after the accident.
The leaned counsel for the appellant has made the above said submissions assuming that the 1st respondent/injured was drawing regular pay
alone and he was not in receipt of any overtime payment regularly. The learned counsel for the 1st respondent/Injured drew the attention of this
Court to Ex. P.6 (series), salary statements for the period prior to the date of accident, which shows that he was drawing overtime payment equal
to or even more than the regular pay. It is also a fact, which is obvious from the salary statements for the months of June December 2006 marked
as Ex. P.6 (series) that he was in receipt of regular overtime pay, and he was receiving total pay including the overtime pay ranging from Rs.
20,342/- to Rs. 25,032/- per month. If the contention of the learned counsel for the appellant is to be accepted, then the actual loss of
earning/actual loss of earning capacity shall be assessed by taking into account the overtime pay also, which the 1st respondent/injured was
receiving prior to accident, which he was not receiving after the accident. If such a figure is taken as the basis for calculation of compensation for
loss of earning capacity, even more amount could have been awarded on the said head. The Tribunal has taken Rs. 7,700/- per month being 70%
of Rs. 11,000/- as loss of earning capacity, which is even less than the difference between the actual pay received by the 1st respondent before
and after the accident.
The assessment of the disability at 70% cannot also be successfully challenged because it is in tune with the schedule found in Employee''s
Compensation Act, 1923. In fact, the leaned counsel for the appellant has refrained from advancing any argument in this regard. The only
contention raised by the learned counsel for the appellant is that though the functional disability could have been assessed at 70%, there was no
actual loss of income and hence, the loss of earning capacity arrived by the Tribunal at 70% should be held to be unreasonable. The aforesaid
discussion regarding the actual pay drawn by the 1st respondent/injured before and after accident will show a difference of more than Rs. 10,000/-
, which will make the assessment of monthly loss of earning capacity at Rs. 7,700/- to be quite reasonable. It will reveal that such an amount is
reasonable even if a conservative approach is made. Therefore, this Court is of the view that the challenge made by the appellant for assessing the
future loss of earning capacity at 70% as excessively disproportionate has got to be discountenanced as untenable.
It has been indicated supra that the injuries suffered by the 1st respondent/injured leading to the amputation of his left leg above the knee,
resulted in loss of earning capacity. As per the law declared by the Hon''ble Supreme Court in several cases, including the one in Reshma Kumari
and Others Vs. Madan Mohan and Another, , now, it has been established that in case of disability resulting in loss of earning capacity, multiplier
method shall be the suitable method to assess the compensation on the head of loss of future earning capacity. According to the Hon''ble Supreme
Court {in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, which was confirmed in Reshma Kumari and Others Vs.
Madan Mohan and Another, , the proper multiplier to be selected for a person above 55 and below 60 years shall be 8. The Tribunal correctly
adopted the multiplier 8. Therefore, this Court is not in a position to find fault with the multiplier selected by the Tribunal as well as the total amount
arrived at by the Tribunal towards damages for loss of earning capacity. The said amount itself comes to (7,700 X 12 x 8) = Rs. 7,39,200/-. The
said amount calculated towards damages towards loss of future earning capacity cannot be held to be excessive or unreasonable.
To the said amount, the following amounts have also been added by the Tribunal.
Adding the said amount of Rs. 1,57,164/- with the amount of Rs. 7,39,200/- calculated as loss of future earning capacity due to the permanent
disability, the Tribunal arrived at the figure Rs. 8,96,364/- and rounded it to Rs. 8,96,500/- and directed the appellant herein and the 2nd
respondent herein to jointly and severally pay the said amount with interest at the rate of 7.5% per annum and proportionate costs. The above said
amount awarded by the Tribunal on various heads cannot be termed as excessive. The amount covered by the bills alone have been taken towards
medical expenses, transport expenses and for the purchase of three wheeler. So far as the loss of earning for two months from the date of accident
is concerned, the Tribunal took the monthly income only as Rs. 11,000/-. In fact, the 1st respondent/injured was in receipt of about Rs. 24,000/-
to Rs. 25,000/-, which included the overtime pay. As such, the amount of Rs. 22,000/- awarded by the Tribunal for loss of income for two
months, during the treatment period, cannot be held excessive or unreasonable.
Considering the nature of injury sustained by the 1st respondent/injured and the disability with which he is now seen, a sum of Rs. 25,000/-
awarded by the Tribunal under the head of pain and sufferings is too little. An award of even Rs. 1 lakh would be justifiable. Forgetting the fact that
the Tribunal has chosen to slash down the damages on various heads and thus arrived at a final figure of Rs. 8,96,500/- as reasonable
compensation, the appellant has chosen to challenge the same as unreasonable. If the above said factors are also taken into consideration, the said
amount awarded by the Tribunal shall be even held to be lower than what this Court can fix as reasonable amount of compensation. However,
there is no cross-appeal or cross-objection preferred by the 1st respondent/injured. Hence, this Court comes to the conclusion that the award of
the Tribunal does not require any interference and the same deserves to be confirmed with costs. Accordingly, the Civil Miscellaneous Appeal is
dismissed with costs and the impugned order dated 09.12.2010 made in M.C.O.P. No. 3920 of 2007 on the file of the Motor Accidents Claims
Tribunal (Vth Judge, Court of Small Causes), Chennai, shall stand confirmed.
Consequently, connected Miscellaneous Petition is closed.