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Judgment
This Civil Miscellaneous Appeal has been preferred to set aside the order and decreetal order, dated 16.11.2010 passed in M.C.O.P.No.1407
of 2015 by the Motor Accidents Claims Tribunal (Additional District Court / Fast Track Court No.3), Madurai.
The appellant herein is the claimant in M.C.O.P.No.1407 of 2015, claiming compensation of Rs.4,00,000/- for the injuries sustained by him in a
road traffic accident on 05.03.2005, at about 23.30 Hrs, under Sections 140 & 166 of the Motor Vehicles Act, when the complaint was travelled
as one of the passenger in the Auto Rickshaw, bearing Registration No.TN-59-J-1147, owned by R1 and was insured with R2. The Tribunal has
passed an Award, dated 16.11.2010, directing the 2nd respondent to pay a sum of Rs. 60,000/-, as compensation, with 9% interest per annum,
from the date of claim petition, by fixing the liability upon R1 and R2 jointly and severally. Aggrieved by the quantum of Award amount, the
claimant alone preferred the present Civil Miscellaneous Appeal for enhancement of compensation.
The Tribunal has Awarded a sum of Rs.15,000/- towards pain and suffering; a sum of Rs.10,000/- towards medical and other incidental
expenses; a sum of Rs.5000/- under the head, ''loss of earning during the period of treatment'' and also a sum of Rs. 30,000/- towards partial
permanent disability and totally, a sum of Rs.60,000/- was awarded towards compensation, for the injuries sustained by the claimant.
The learned counsel appearing for the appellant would contend that fixing of quantum under the head of disability is contrary to the settled
principle of law and a meager sum of Rs. 30,000/- was awarded towards disability, without discussing the evidence of the Doctor / P.W.3 and
Ex.P14 / Disability Certificate and the conventional method of Rs.2000/- per 1% has to be awarded, considering the age of the appellant. It is
further contended that the Tribunal has failed to determine the loss of future earning capacity, as the appellant / claimant suffered permanent
disability in the left thigh, which totally incapacitated him from pursuing his avocation of driving and also failed to award some reasonable amount
towards loss of amenities and future medical expenses. He would further submit that the Tribunal has failed to apply the multiplier method in
assessing the compensation towards the disability, since the appellant could not do the avocation of driver of Minidor Auto.
The learned counsel for the appellant / claimant, in support of his contentions, relied on a Judgment of Division Bench of this Court in The New
India Assurance Co Ltd., Vs. Kannayiram reported in [2012 (1) TN MAC 611 (DB)] and also an yet another Division Bench Judgement of this
Court in Krishnakanth Vs. The Managing Director, The Chennai Metropolitan Transport Corporation Ltd., Pallavan House, Anna Salai, Chennai
reported in [2017 (2) TN MAC 452 (DB)].
Perused the materials on record. Heard and considered the rival submissions made on either side.
The appellant herein is the claimant, who was injured while travelled in an auto rickshaw, bearing Registration No.TN-59- J-1147, as one of the
passengers, due to rash and negligent driving of the driver of the said auto rickshaw, on 05.03.2005. The first respondent is the owner of the auto-
rikshaw and the 2nd respondent is the insurer of the said auto rickshaw. Admittedly, Insurance Policy was in force on the date of accident. The
claimant himself stated about his avocation as driver, driving a private auto prior to the accident. Admittedly, the claimant was having a driving
licence with badge and it was never renewed from 2007 onwards. Except the above, there is no other evidence to prove that he was doing his
avocation as driver of a private auto and was earning for his livelihood, prior to the date of the occurrence / accident. Hence, there is no loss of
earning, as contended by the claimant. However, the Tribunal has awarded a sum of Rs.5000/-, as compensation, under the head of loss of
earning during the period of treatment.
The appellant / claimant has challenged the quantum fixed for the partial permanent disability of 48% by the tribunal, as Rs.30,000/-. Disability
certificate was marked as Ex.P14, through the evidence of P.W.3 / Doctor, who issued the said certificate. On perusal of the medical records
produced by the claimant and also on seeing the present claimant, P.W.3 has assessed the disability as 48% towards partial permanent disability.
He has further deposed that the movement of left knee is Nil, due to the stiffness and Ankylosis of left knee and there is shortening of 5 c.m., of left
leg than his right leg and the claimant needs to take treatment for Non-healing, and he is no able to sit on the floor with cross leg position or squat.
However, P.W.3 has not stated that the claimant is having permanent functional disability. It is also admitted that the said certificate was not given
based on the avocation of the claimant.
Considering the evidence of P.W.3 and Ex.P14 / Disability Certificate, this Court is of the view that lesser amount was awarded to the claimant
under the head of disability. The multiplier method in calculating the loss of income, on the basis of the disability, is not applied in this case. The
counsel for he appellant relied on a Division Bench Judgement of this Court reported in [2012 (1) TN MAC 611 (DB)] (cited supra), in which it is
held whether the disability caused to the injured amounts to functional disability warranting application of multiplier method, only if permanent
disability suffered by a person affects functioning of earning power applied multiplier method. In the Judgment reported in [2017 (2) TN MAC 452
(DB)] (cited supra) a sum of Rs.3000/- per percentage of disability towards compensation has been awarded. In the above decisions, functional
disability has been assessed as 95% and 75% ie., more than 50 % respectively for which a sum of Rs.3000/- was awarded per percentage of the
disability, as an exceptional case.
In this case on hand, the disability found upon the claimant has not been assessed as functional permanent disability and the claimant was
suffered only for 48% of permanent disability, considering the evidence of P.W.3 / Doctor and also the nature of injuries and disability found upon
the claimant at 48%, the claimant is entitled to a compensation for disability at the rate of Rs.2000/- per percentage and entitled to a sum of
Rs.96,000/- towards partial permanent disability [ Rs.2000 x 48% = 96,000]. The claimant is also entitled to a sum of Rs.10,000/- towards loss
of amenity, due to 5 cm., shortening of the length of the left leg than the right leg because of the accident and also a sum of Rs.15,000/- towards
future medical expenses, as referred in the disability certificate for further treatment. Considering the period of treatment as inpatient in the hospital
after the accident and also the surgery was done for the fracture wound, the claimant is entitled to get a further sum of Rs.5000/- in addition to
Rs.15,000/- towards compensation for pain and suffering. At this juncture, the learned counsel appearing for the Respondent / Insurer would
contend that the interest at 9% awarded by the tribunal is an excessive one. This Court has not awarded any amount more than Rs.5000/- fixed by
the Tribunal towards loss of earning.
Considering the above facts and circumstances, this Court is inclined to Award a sum of Rs.96,000/- instead of Rs. 30,000/- towards 48% of
partial permanent disability; Rs.15,000/- towards future medical expenses; Rs.20,000/- instead of Rs.15,000/- towards pain and suffering and a
sum of Rs.10,000/- as fixed by the Tribunal towards medical and other incidental expenses and a sum of Rs.5000/- fixed by the Tribunal towards
loss of earning, totally a sum of Rs.1,46,000/- (Rs.96,000/- + Rs.15,000/- +Rs.20,000/- + Rs. 10,000/- + Rs.5,000/-).
In the light of the above discussion, the civil miscellaneous appeal is allowed. No costs. The respondent Insurance Company is directed to
deposit the award amount, now determined by this Court ie., Rs.1,46,000/- with interest at the rate of 7.5% per annum from the date of claim till
deposit, within a period of three weeks from the date of receipt of a copy of this order, less the amount already deposited. On such deposit, the
appellant / claimant is permitted to withdraw the award amount with interest and cost by making necessary application.