Research › Search › Judgment

Rajasthan High Court · body

2010 DIGILAW 361 (RAJ)

Sankara Subbu v. Selvi

2010-02-12

D.HARIPARANTHAMAN

body2010
Hon'ble HARIPARANTHAMAN, J.—The appeal is filed by the injured, who suffered 35% permanent and partial disability in the Motor Vehicle Accident that occurred on 31.05.2004. The appellant travelled in the bus owned by the first respondent and the second respondent is the insurer. The appellant was a two wheeler Mechanic and it is not disputed by the second respondent. The appellant claimed Rs.2,00,000/- as compensation by filing M.C.O.P.No.511 of 2004, before the Motor Accident Claims Tribunal, Tirunelveli. The appellant got examined himself as P.W.1, and the Doctor who issued the disability certificate was examined as P.W.2 and Exs.A-1 to A-9 were marked on the side of the appellant. The second respondent examined two witnesses and Exs.R-1 and R-2 were marked on the side of the second respondent. The Tribunal passed the award, dated 14.07.2008, awarding compensation of Rs.51,000/- to the appellant payable by the second respondent. The Tribunal took Rs.1,000/- as monthly income of the appellant. The Tribunal applied the multiplier of 17', taking into account the age of the appellant as 20. The Tribunal proceeded to compute the compensation using the table given in the second schedule for assessing total disablement. The Tribunal arrived at Rs.2,16,000/- as compensation for 100% disablement. The Tribunal fixed the disablement of the appellant at 20%. Therefore, the compensation was calculated at Rs.43,000/-. The Tribunal further awarded Rs.7,000/- for the injuries suffered and Rs.800/- for extra nourishment and in total Rs.51,000/- was awarded as compensation. The appellant has preferred this appeal against the said order granting Rs.51,000/- as compensation. 2. Heard Mr.T.Selvakumaran, learned counsel for the appellant and Mr.V.Kathirvelu, learned counsel for the first respondent and Mr.S.SrinivasaRaghavan, learned counsel for the second respondent. 3. The learned counsel for the appellant submits that the entire approach of the Tribunal is erroneous. There is no reason for the Tribunal to adopt the multiplier method following second schedule of Motor Vehicle Act. The learned counsel submit that the second schedule has to be applied only in cases of total disablement and deaths. 4. The learned counsel also submits that a Division Bench of this Court in the case of United India Insurance Company Ltd, vs. Veluchamy and another reported in 2005(1) CTC 38 , held that the multiplier method provided in the second schedule can be adopted only in the case of total disablement and in the case of death. 4. The learned counsel also submits that a Division Bench of this Court in the case of United India Insurance Company Ltd, vs. Veluchamy and another reported in 2005(1) CTC 38 , held that the multiplier method provided in the second schedule can be adopted only in the case of total disablement and in the case of death. The learned counsel submits that the compensation has to be arrived at in the case of permanent partial disability, by awarding Rs.1,000/-to Rs.2,000/- for each percentage of disability, taking into account various factors and more importantly, the age of the injured. 5. It is submitted that this Court has held in the case of The Managing Director, Tamil Nadu State Transport Corporation (Division-2) Ltd., Dharmapuri vs. J.Senthil Kumar reported in 2008(1) TN MAC 499 and also Metropolitan Transport Corporation Ltd., vs. N. Shanmugam reported in AIR 2008 (NOC) 2467 (MAD) that in the case of permanent partial disablement, the injured is entitled to compensation from Rs.1000/- to Rs.2000/- for each percentage of disability. It is also submitted that the petitioner is entitled to Rs.25,000/- towards pain and suffering, Rs.15,000/- towards loss of amenities, Rs.3,000/- towards transportation and Rs.8,000/- towards extra-nourishment. By applying the aforesaid Judgment of this Court, since the appellant was aged 20 years at the time of accident, he is entitled to Rs.2000/- for each percentage of disability and therefore, he is entitled to Rs.70,000/- as disability compensation. It is vehemently contented that the Tribunal reduced the percentage of disability from 35% to 20% without any justification, though, P.W.2 doctor examined on the side of the appellant stated that the appellant suffered 35% permanent partial disablement. There is no contra evidence let in by the respondents. 6. On the other hand, the learned counsels for the respondents submit that the award of the Tribunal is sustainable and it is further argued that there is no infirmity in the award. 7. I have considered the submissions made on either side. 8. As rightly contented by the learned counsel for the appellant, when the doctor, P.W.2, was examined by the appellant and the disability certificate was marked proving that the appellant suffered 35% permanent and partial disablement, the Tribunal was not justified in reducing the percentage of disability from 35% to 20%, without giving any reason whatsoever. 8. As rightly contented by the learned counsel for the appellant, when the doctor, P.W.2, was examined by the appellant and the disability certificate was marked proving that the appellant suffered 35% permanent and partial disablement, the Tribunal was not justified in reducing the percentage of disability from 35% to 20%, without giving any reason whatsoever. As correctly pointed out by the learned counsel for the appellant, the respondents did not choose to examine anybody to disprove the case of the appellant. In these circumstances, I am of the considered view that the Tribunal has committed an error in reducing the percentage of disability from 35% to 20%. I therefore have no hesitation to hold that the appellant has suffered 35% disability. 9. The next issue is that whether the Tribunal was correct in adopting the multiplier method in this case, other than total disablement. The reliance placed by the learned counsel for the appellant on a decision of a Division Bench of this Court in United India Insurance Company Ltd, vs. Veluchamy and another reported in 2005(1) CTC 38 covers this issue. Para 11 of the judgment is extracted under. 11. The following principles emerge from the above discussion: (a) In all case of injury of 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 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 the 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. 10. 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. 10. Applying the above decision, I am of the considered view that the Tribunal has mechanically adopted the multiplier method and therefore, the entire approach of the Tribunal in fixing the compensation has to be set aside. Accordingly, the same is set aside. While the method adopted by the Tribunal for computing the compensation is not approved, then it has to be found out, what is the compensation payable to the appellant. In this regard, this court has categorically held in Managing Director, Tamil Nadu State Transport Corporation (Division-2) Ltd., Dharmapuri vs. J.Senthil Kumar reported in 2008(1) TN MAC 499 and in Metropolitan Transport Corporation ltd., vs. N.Shanmugam reported in 2008(NOC) 2467 (MAD) that in the case of injuries relating to partial and permanent disablement, the compensation could be arrived at by granting Rs.1000/- to 2000/- for each percentage of disability, depending upon various circumstances. The following passage found in para 6 of the Judgment reported in 2008(1) TN MAC 499 is extracted hereunder:- "Normally the Courts award between Rs.1,000/- to Rs.2,000/- per percentage of disability. After taking into consideration the facts and circumstances of the case , I feel that the Tribunal has correctly awarded Rs.50,000/- towards 25% disability at Rs.2,000/- per percentage of disability. Hence the same is confirmed. The details of the modified compensation are as under: Rupees Loss of Income during the the Treatment Period : 30,000/- Transport Expenses : 4,000/- Nourishment : 6,000/- Medical Expenses : 25,000/- Attendant Charges : 2,000/- Pain and Suffering : 25,000/- Permanent Disability : 50,000/- Total : 1,42,000/- Therefore the claimant is entitled to the modified compensation of Rs.1,42,000/- 11. The details of the modified compensation are as under: Rupees Loss of Income during the the Treatment Period : 30,000/- Transport Expenses : 4,000/- Nourishment : 6,000/- Medical Expenses : 25,000/- Attendant Charges : 2,000/- Pain and Suffering : 25,000/- Permanent Disability : 50,000/- Total : 1,42,000/- Therefore the claimant is entitled to the modified compensation of Rs.1,42,000/- 11. The following passage from Metropolitan Transport Corporation ltd., vs. N. Shanmugam reported in 2008 (NOC) 2467 is also extracted hereunder:- "Motor Vehicles Act (59 of 1988),S.168 - Assessment of compensation -Injuries resulting in permanent disability - Awarding lump sum compensation at uniform rate irrespective of age of injured - Tantamounts to treating in unequals equally - Compensation to be awarded in case of permanent disability may range from Rs.1,000/- to Rs.2,000/- per one percentage disability - Maximum rate shall be applicable in case of young people - Minimum rate shall be applicable in case of elders." 12. From the above said judgments, it is very clear that the appellant is entitled to Rs.2,000/- per percentage of disability as he was 20 years of age at the time of accident and that The left leg of the appellant got fractured and he suffered 35% permanent partial disablement. Hence, the appellant is entitled to Rs.70,000/- towards compensation for the disablement suffered by him. The other components of compensation awarded by the Tribunal is also not based on reasons. Further, granting Rs.800/- towards nourishment is totally inadequate. 13. As rightly contented by the learned counsel for the appellant, nothing was awarded towards pain and suffering, loss of amenities and transport charges, while the award towards nourishment is on the lower side. I am inclined to order compensation for the pain and suffering at Rs.25,000/-, loss of amenities Rs.5,000/-, Rs.2,000/- for Transportation and Rs.5,000/- for Extra nourishment. In total, the appellant entitled to Rs.1,07,000/- as compensation and the second respondent is deserved to pay the same. 14. Accordingly, this appeal is allowed as indicated above. The appellant is also entitled to interest at the rate of 7.5% per annum, from the date of application before the Tribunal claiming compensation till the realization. No costs.