Judgment : 1. The appellant transport corporation, against whom an award has been passed by the Motor Accident Claims Tribunal (Chief Judicial Magistrate), Namakkal in MCOP No.727/2006 directing payment of a sum of Rs.3,39,040/- as compensation together with an interest on the said amount at the rate of 7.5% per annum from the date of filing of the MCOP till the date on which the amount will be deposited and also cost, for the injuries suffered by the respondent herein in a road accident involving the bus belonged to the appellant transport corporation, has come forward with the present civil miscellaneous appeal. 2. The said award was passed on 24.06.2009 in MCOP No.727/2006 on the file of the Motor Accidents Claims Tribunal (Chief Judicial Magistrate), Namakkal in a petition filed by the respondent herein claiming a sum of Rs.7,00,000/- as compensation for the injuries sustained by him in a road accident that took place at about 5.45 p.m on 25.02.2006 near Keerambur Association Petrol bunk on the Namakkal – Paramathi Road. The respondent herein had averred in the claim petition that at the time of accident, he was travelling as a passenger in the bus bearing Regn. No.TN-27 N-1517 belonging to the appellant transport corporation; that the driver of the said bus drove it at a high speed in a rash and negligent manner and attempted to overtake a lorry and that during such attempt, the bus hit the said lorry on its rear side and that thus the accident, in which he also sustained injuries, took place. The respondent made a further averment that due to the fault on the part of the driver of the bus belonging to the appellant transport corporation, the accident took place. He has further contended that in the said accident, he got a number of grievous injuries including fracture on both the legs below the knee, for which he had to take treatment for two months as an in-patient incurring an expenditure of Rs.1,00,000/-. It was further averred in the claim petition that despite best treatment given to the respondent herein/claimant, the injuries resulted in permanent disability, which also affected his earning capacity and hence the respondent herein/claimant had made a claim of Rs.7,00,000/- as compensation against the appellant transport corporation. 3. It was further averred in the claim petition that despite best treatment given to the respondent herein/claimant, the injuries resulted in permanent disability, which also affected his earning capacity and hence the respondent herein/claimant had made a claim of Rs.7,00,000/- as compensation against the appellant transport corporation. 3. The claim was resisted by the appellant transport corporation contending that there was no negligence on the part of the driver of the bus belonging to the appellant; that while the bus was proceeding at normal speed, the driver of a lorry bearing Regn. No.TN-33 V-7903, which was going in front of the bus, suddenly stopped the lorry without making any signal and that though the driver of the bus belonging to the appellant transport corporation tried to avoid collision by applying brakes, he failed and the bus came into contact with the lorry and thus the accident took place. Besides contending that it was due to the rash and negligent act on the part of the driver of the above said lorry and not due to any fault of the driver of the bus belonging to the appellant transport corporation, the accident took place, the appellant transport corporation also took a stand that the amount claimed by the respondent/claimant was highly excessive and exorbitant. 4. In the enquiry before the Tribunal, three witnesses were examined as PWs.1 to 3 and 11 documents were marked as Exs.P1 to P10 and Ex.X1 on the side of the respondent herein/claimant. One witness was examined as RW1 and no document was marked on the side of the appellant herein/respondent. 5. The Tribunal, after considering the evidence in the light of the points urged by the counsel appearing on both sides in their arguments advanced before the Tribunal and, upon such consideration, came to the conclusion that the accident took place due to the rash and negligent driving of the bus bearing Regn. No.TN-27 N-1517 belonging to the appellant transport corporation; that the petitioner sustained the injuries mentioned in the claim petition in the above said accident and that the appellant transport corporation was liable to pay compensation to the respondent herein/claimant. The Tribunal took the age of the respondent/claimant to be 23 years, assessed his monthly income at Rs.4,200/- per month and applied 17' as the appropriate multiplier for calculating the damages for loss of earning capacity. The Tribunal took the age of the respondent/claimant to be 23 years, assessed his monthly income at Rs.4,200/- per month and applied 17' as the appropriate multiplier for calculating the damages for loss of earning capacity. As against 55% of the functional disability certified under Ex.P5-Disability certificate by Dr.C.Sivalingam, who figured as PW.2, the Tribunal assessed the disability at 45%. Besides assessing the monthly income at Rs.4,200/-, the Tribunal chose to deduct 1/3rd from the same as the amount he would have spent on himself, and took Rs.2,800/-to be the monthly income to be taken into account for assessment of compensation. Accordingly, the Tribunal made the following calculations: Annual income = Rs.2,800 x 12 = Rs.36,000/- Loss of earning capacity at 45% = 45/100 x Rs.36,000 = Rs.15,120/- The said amount was taken as the multiplicand and multiplying the same with 17', the selected multiplier, the Tribunal arrived at the figure Rs.2,57,040/- to be the monetary loss on account of loss of earning capacity. Adding a further sum of Rs.10,000/-towards pain and suffering and offering a sum of Rs.70,000/- towards medical expenses and a sum of Rs.2,000/- towards transportation and extra nourishment, the final figure of Rs.3,39,040/- was arrived at by the Tribunal and thus the Tribunal passed an award directing the appellant transport corporation to pay the said amount with interest at the rate of 7.5% per annum and also cost. The said award of the Tribunal dated 24.06.2009 is challenged by the appellant transport corporation, both on the ground of liability and also on quantum. 7. The points that arise for consideration in this appeal are: "1. Whether the Tribunal committed an error in fixing the liability on the appellant transport corporation to pay compensation for the injuries sustained by the respondent herein/claimant in the accident concerned in this case? 2. Whether the amount awarded by the Tribunal is excessive requiring downward revision?" 6. The arguments advanced by Mr.V.Ramesh, learned counsel for the appellant and by Mr.R.Jayaprakash, learned counsel for the respondent are heard. The materials available on record are also perused. 7. It is not in dispute that the respondent/claimant was travelling as a passenger in the bus bearing Regn. No.TN-27 N-1517 belonging to the appellant herein at the time when the accident concerned in this case took place. There is also no dispute regarding the date, time and place of the accident. The materials available on record are also perused. 7. It is not in dispute that the respondent/claimant was travelling as a passenger in the bus bearing Regn. No.TN-27 N-1517 belonging to the appellant herein at the time when the accident concerned in this case took place. There is also no dispute regarding the date, time and place of the accident. There is also no controversy regarding the fact that a lorry bearing Regn.No.TN-33 V-7903 was going in front of the bus and the bus was following the said lorry in the very same direction and that in an attempt to overtake the lorry near Keerambur Association Petrol bunk on the Namakkal – Paramathi Road, the bus belonging to the appellant transport corporation, hit the backside of the above said lorry, as a result of which, a number of passengers who were travelling in the bus sustained injuries and that the respondent herein/claimant was one of the persons who sustained injuries in the said accident. 8. It was the contention of the respondent herein/claimant before the Tribunal that the driver of the bus, in which he was travelling, drove it at a high speed in a rash and negligent manner, as a result of which it dashed against the lorry that was going in front of it and that the driver of the bus belonging to the appellant herein was at fault. Though the appellant transport corporation would have taken a stand that the driver of the lorry that was going in front of the bus suddenly stopped the lorry without giving any signal and that the driver of the bus belonging to the appellant tried to avoid collision by applying brakes, but he was unsuccessful and the unfortunate accident took place and that, if at all there was any negligence, it should be on the part of the driver of the lorry and not on the part of the driver of the bus belonging to the appellant. The Tribunal, after evaluating the evidence adduced on both sides, came to the correct conclusion that the accident took place solely due to the rash and negligent driving of the bus bearing Regn. No.TN-27 N-1517 belonging to the appellant herein. This court also reappraised the evidence and on such re-appraisal, is of the view that the said finding of the Tribunal cannot be said to be either infirm or erroneous or defective. 9. No.TN-27 N-1517 belonging to the appellant herein. This court also reappraised the evidence and on such re-appraisal, is of the view that the said finding of the Tribunal cannot be said to be either infirm or erroneous or defective. 9. Admittedly, the lorry was proceeding in front of the bus and the bus was following the lorry in the very same direction. According to the evidence adduced on the side of the respondent/claimant, the bus driver, in his attempt to overtake the lorry, dashed the bus on the backside of the lorry and the same would show the rashness and negligence with which he was driving the bus. The evidence adduced through RW.1 does not instill confidence of this court. That is the reason why, though the question of negligence stands raised as a ground in the appeal memorandum, learned counsel for the appellant has stated that the appellant does not press the ground in the appeal memorandum challenging the finding of the Tribunal regarding negligence and that the appellant would restrict his contest regarding the quantum of compensation awarded by the Tribunal. In view of the same, the finding of the Tribunal that the accident took place due to rash and negligent driving of the bus bearing Regn. No.TN-27 N-1517 belonging to the appellant transport corporation by its driver is bound to be confirmed. 10. The respondent/claimant was aged about 23 years as per the averments made in his claim petition. He has not chosen to produce either the birth certificate or school certificate or any other document bearing his date of birth in proof of his age. However, in Ex.P1-wound certificate, his age has been noted as 23 years. Ex.P9 is nothing but a certified copy of Ex.P1. In the absence of any other document and contra evidence, the Tribunal took the age of the respondent/claimant as on the date of accident to be 23 years. The fixation of the age of the respondent/claimant is not challenged. The learned counsel for the appellant would submit that the appellant is aggrieved by the adoption of multiplier method in assessing compensation for the loss of earning capacity and also fixing the extent of loss of earning capacity on par with the percentage of functional disability. The fixation of the age of the respondent/claimant is not challenged. The learned counsel for the appellant would submit that the appellant is aggrieved by the adoption of multiplier method in assessing compensation for the loss of earning capacity and also fixing the extent of loss of earning capacity on par with the percentage of functional disability. In this regard, the learned counsel for the appellant has argued that without furnishing valid reasons, the Tribunal erroneously took the extent of loss of earning capacity to be equal to the percentage of functional disability and that such an equation without even deciding the suitability of the multiplier method is erroneous. 11. Per contra, learned counsel for the respondent/claimant would submit that there is nothing wrong in applying the multiplier method; that in fact, the facts of the case will justify the adoption of the multiplier method as the appropriate method for assessment of loss of earning capacity and that the challenge made by the appellant regarding the application of the multiplier method should be rejected as untenable. The learned counsel for the respondent herein/claimant drawing the attention of the court to that part of the judgment of the Tribunal dealing with the assessment of compensation for loss of earning capacity, would submit that the Tribunal committed an error in deducting 1/3rd of the income of the respondent/claimant and taking the balance alone as his monthly income for the purpose of assessing the loss of earning capacity, is totally erroneous and against the established principles of assessment of compensation. It is the further contention of the learned counsel for the respondent that in case the said deduction was not made, the Tribunal would have held the respondent/claimant to be entitled to even a higher amount as compensation. Pointing out the said facts, the learned counsel for the respondent would contend that, closing their eyes to the said aspects and unmindful of the fact that a proper assessment would show a higher amount as to which the respondent would be entitled as compensation and only with a view to gain time for making payment of the compensation awarded by the Tribunal, the present appeal came to be filed and that hence the appeal should be dismissed with exemplary cost. 12. This court paid its anxious consideration to the above said contentions raised on both sides. 13. 12. This court paid its anxious consideration to the above said contentions raised on both sides. 13. The respondent/claimant had contended before the Tribunal that he was working as a Technical Assistant in Dolphin and Dolphin Engineers, Belgaum, Karnataka and was drawing a monthly salary of Rs.6,000/-. Though he had taken such a plea, he did not produce any salary slip. Nowhere in the evidence of PW.1, he has stated that he lost the employment because of the injuries sustained in the accident. He has not stated that he stopped going to the said company after the accident. However, he chose to examine PW.3-General Manager of the above said Dolphin and Dolphin Engineers through whom Ex.P6 has been marked. Ex.P6 is the certificate issued on 08.09.2007 signed by a person as authorised signatory of the above said concern to the effect that the respondent/claimant was working as a technician in the said company and he was drawing a pay of Rs.5,900/-. As per the evidence of PW.3 and Ex.P6, the respondent/claimant was drawing a pay of Rs.5,900/-per month, but the averments made in the claim petition and the testimony of PW.1 are to the effect that he was drawing a pay of Rs.6,000/- per month. Till the completion of examination of PW.1, he could not produce any document to show that he was an employee of the above said company and he was drawing a sum of Rs.6,000/-per month as pay. This has been admitted by PW.1 himself. The same would show that the introduction of PW.3 and production of Ex.P6 were nothing but the result of an afterthought in an attempt to prove that the respondent/claimant was employed in the construction division of an engineering company. The very fact that the pay allegedly drawn by the respondent/claimant as stated by him in the petition and in his testimony differs from the evidence of PW.3 and the figure noted in Ex.P6, will show that the contention of the respondent that he was an employee of Dolphin and Dolphin Engineers could not be believed. The Tribunal rightly held that the respondent was not proved to be an employee of the said concern and it was also not proved that he was drawing a monthly pay of Rs.6,000/-. The Tribunal rightly held that the respondent was not proved to be an employee of the said concern and it was also not proved that he was drawing a monthly pay of Rs.6,000/-. However, considering the age of the respondent/claimant and opining that such a person in the State capital like Bangalore could earn at least a sum of Rs.4,200/- per month, the Tribunal assessed his monthly income at Rs.4,200/-. In fact, the appellant has not challenged the fixation of monthly income notionally at the rate of Rs.4,200/- per month. The only contention raised on behalf of the appellant is that the Tribunal committed an error in applying the multiplier method without considering the suitability of the said method. 14. It is the case of a person aged about 23 years having suffered grievous injuries including fracture of tibia below the knee in both the legs, for which surgeries were conducted, rods and screws were used for fixing the broken pieces of bones. The same is obvious from the evidence of PW.2 and Exs.P1 to P5. Despite such treatment, it has resulted in malunion of bones in both the legs. The consequences of the said injury are spoken to by PW.2. They are: (1) malunion of tibia bones on both the legs; (2) restriction of movements and movements found with pain on the knee and ankle joints of both the legs and (3) loss of muscle and loss of muscle strength on both the legs below the knee. It has resulted in a functional disability of 55% as assessed and certified by PW.2 under Ex.P5. When a qualified Medical Officer has chosen to assess the functional disability at 55%, without assigning any reason, the Tribunal has chosen to take a lesser percentage of functional disability for which there shall be no justification. The Tribunal took the functional disability at 45%. As stated supra, the functional disability certified by PW.2, in the absence of any contra evidence, should have been accepted by the Tribunal. The Tribunal took the functional disability at 45%. As stated supra, the functional disability certified by PW.2, in the absence of any contra evidence, should have been accepted by the Tribunal. By now, it is a recognised principle that in case of functional disability to certain extent, the loss of earning capacity need not be at the same percentage; that there may be cases in which a functional disability at a lesser percentage, may result in total loss of earning capacity or a higher percentage of loss of earning capacity; that there may be cases in which the percentage of loss of earning capacity shall be 'Nil' or lower than the percentage of functional disability and that in certain cases, equating the percentage of functional disability with the percentage of earning capacity, shall be justifiable. 15. In this case, what the appellant has contended is that the Tribunal, without considering those aspects, simply took the percentage of loss of earning capacity equal to the loss of functional disability. Of course, at the outset, it may give an impression that the said contention of the appellant shall have strength in it. But such a contention has been raised without considering the fact that the Tribunal ought to have assessed the functional disability at 55% and not 45%. Considering the age of the respondent/claimant and the fact that his income was assessed only based on the finding that he could have earned as an unskilled worker, the loss of physical strength and presence of functional disability could have definitely caused loss of earning capacity. Though the functional disability should have been assessed at 55%, taking a conservative view, we can assess the loss of earning capacity at least at 30%. The monthly income assessed by the Tribunal, which is to be upheld, is Rs.4,200/-. So, the loss of earning capacity per month shall be assessed at Rs.1,260/-. Annual loss of earning capacity shall be Rs.15,120/-. Though the Tribunal has adopted a wrong procedure, it has correctly assessed the annual loss of earning capacity at Rs.15,120/-. For a person aged 23 years, the appropriate multiplier to be adopted, as per the guidelines issued by the Hon'ble Apex court in Reshma Kumari and others vs. Madan Mohan and another reported in 2013(2) CTC 680, shall be 18'. But the Tribunal has adopted 17' as the appropriate multiplier. For a person aged 23 years, the appropriate multiplier to be adopted, as per the guidelines issued by the Hon'ble Apex court in Reshma Kumari and others vs. Madan Mohan and another reported in 2013(2) CTC 680, shall be 18'. But the Tribunal has adopted 17' as the appropriate multiplier. If the correct multiplier had been adopted, the Tribunal would have arrived at Rs.2,72,160/-, which shall be more than the amount assessed on the head of compensation for loss of earning capacity. A sum of Rs.70,000/- has been awarded as compensation for medical expenses. The said amount has been covered by the medical bills produced by the respondent. So the same cannot be successfully challenged as excessive or exorbitant. The Tribunal even showed stringency in awarding a paltry sums of Rs.2,000/-towards expenses on transportation and extra nourishment and Rs.10,000/-towards pain and suffering. The Tribunal could have awarded higher amounts on the above said headings. Besides the loss of earning capacity, the Tribunal also could have awarded an amount towards the loss of amenities in life and loss of prospects of marriage. If those aspects are taken into consideration, the total amount arrived at by the Tribunal, can, at no stretch of imagination, be termed either excessive or exorbitant. On the other hand, there is scope for holding the same to be on a lower scale. However, the respondent/claimant has not filed any appeal or cross objection. Under such circumstances, this court comes to the conclusion that, it shall be a fit case, in which, the appellant transport corporation is directed to pay exemplary cost for preferring such a frivolous appeal. Considering the facts and circumstances of this case, this court deems it appropriate to direct the appellant to pay a cost of Rs.10,000/- to the respondent/claimant. For all the reasons stated above, the civil miscellaneous appeal fails and the same is dismissed with a cost of Rs.10,000/-. The award dated 24.06.2009 passed by the Tribunal in M.C.O.P.No.727 of 2006 is confirmed. The appellant transport corporation shall deposit the balance of the award amount and the cost awarded in this appeal, within four weeks from today.