JUDGMENT : (Prayer in C.M.A.No.1254 of 2016: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the decree and judgment dated 1st day of December 2015, made in M.C.O.P.No.681 of 2013, on the file of Motor Accident Claims Tribunal, (Special Sub Court), Erode. In C.M.A.No.1255 of 2016 : Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the decree and judgment dated 1st day of December 2015, made in M.C.O.P.No.691 of 2013, on the file of Motor Accident Claims Tribunal, (Special Sub Court), Erode.) (The case has been heard through video conference) 1. Heard the Learned Counsel for the Appellant/Insurance Company and the Learned Counsel for the respondent Nos.1 & 2 in both cases. 2. The facts of the case is that, on 22.07.2013, at about 15.00 hours, when Chinna Durai, along with his wife/Malathi, while travelling in his M-80 Motor Cycle bearing registration No.TN-33-P-0911, near Tasmac godown in front of Tiruppur Pumping Station, Bhavani Main Road, a Nissan Micra XV Premium Car bearing Registration No.TN-33-BJ-6789, hit the two wheeler. In the said accident, Chinna durai and his wife Malathi, sustained fractured injury. 3. Chinna durai, claiming a sum of Rs.20,00,000/- as compensation has stated that he sustained fractures at thigh, head, hip, leg and hand. He spend huge amount towards medical expenses and he has incurred loss of income due to the accident. Alleging that, he was 42 years old, earning Rs.50,000/- per month as fish merchant and on account of disability caused in the accident, he has lost his earning capacity. Claim petition is filed against the car owner and its insurer. 4. The Insurance Company filed counter stating that Chinna Durai at the time of accident while riding his two wheeler talking with her wife, who was sitting on the pillion. Rashly and negligently he came on the wrong side of the road and dashed against the car, insured under the Insurance Company. The nature of injury, disability, medical expenses incurred and claimed were also disputed. 5. Mrs.C.Malathi, wife of Chinna Durai, has also sustained injury, in the said accident. She filed separate claim petition for a sum of Rs.8,00,000/- alleging that she was earning Rs.20,000/- through fish business and the accident injuries has impaired her earning capacity. 6. The nature of injury, disability, medical expenses incurred and claimed were also disputed. 5. Mrs.C.Malathi, wife of Chinna Durai, has also sustained injury, in the said accident. She filed separate claim petition for a sum of Rs.8,00,000/- alleging that she was earning Rs.20,000/- through fish business and the accident injuries has impaired her earning capacity. 6. In the counter filed by the insurer in her case, it was alleged that his husband was solely responsible for the accident and the claim petition is bad for not impleading the driver, insurer and the owner of the motorcycle. 7. Both the M.C.O.P.No.681 of 2013 filed by Chinna durai and M.C.O.P.No.691 of 2013 filed by Malathi, against common respondents the owner of the Nissan Micra XV Premium Car and his insurer were taken up for joint trial by the Tribunal. 8. Rejecting the defence taken by the insurer to avoid liability In M.C.O.P.No.681 of 2013 filed by Chinna Durai, the Tribunal has awarded a sum of Rs.7,77,100/- as compensation. In M.C.O.P.No.691 of 2013 filed by Mrs.Malathi, the Tribunal has awarded a sum of Rs.3,94,000/- as compensation. 9. In the appeals, it is specifically pointed out and also vehemently canvassed by the Learned Counsel for the appellant/Insurance Company that the Tribunal after holding that the injury sustained by the claimants does not fall under the category of injury to apply multiplier, ought not to have awarded huge sum as compensation under the heads of “Loss of Earning Power”. 10. Per contra, the Learned Counsel appearing for the claimants would submit that the injury sustained by the claimants has caused impediments in their day today life and their earning capacity. The claimants are husband and wife, involved in fishing business. The partial permanent disability incurred by them have bearing in their functional ability. Having considering those facts, the Tribunal has awarded compensation for Loss of Earning Power though it found that the injury is not a scheduled injury to apply multiplier method. 11. In C.M.A.No.1254 of 2016 against the M.C.O.P.No.681 of 2013, claimant/Chinna Durai. The partial permanent disability incurred by them have bearing in their functional ability. Having considering those facts, the Tribunal has awarded compensation for Loss of Earning Power though it found that the injury is not a scheduled injury to apply multiplier method. 11. In C.M.A.No.1254 of 2016 against the M.C.O.P.No.681 of 2013, claimant/Chinna Durai. In this case, the claimant has produced his educational qualification certificate, Driving License and PAN card besides Post Office saving passbook, RC book copy for the pick up van Mahindra & Mahindra bearing Registration No.TN-33-R-9981, Ashok Leyand lorry bearing Registration No.TN-33-BB-0870, purchase bills for his fishing business, State Bank Pass Book, ICICI Bank accounts statement etc., to show that he is man of means with assets and source of income. That apart, medical bills were filed to show that he has incurred expenses for treatment. The disability certificate and discharge summary filed to prove the injury and disability. 12. The Tribunal, after considering these evidence has awarded compensation as below:- Headings Amount in Rupees 1. Loss of Income Rs.1,50,000/- 2. Transport expenses Rs.5,000/- 3. Extra Nourishment Rs.10,000/- 4. Damages for cloths and Articles Rs.500/- 5. Medical Expenses Rs.2,44,600/- 6. Pain and Sufferings Rs.75,000/- 7. Disability Rs.92,000/- 8. Loss of earning Power Rs.2,00,000/- Total Rs.7,77,100/- 13. In this case, the Tribunal has fixed the income of the claimant/Chinna Durai as Rs.15,000/- per month. The Claimant is a Post- Graduate, qualified in typewriting and Diploma in Cooperation. He have a pick up van, a Lorry and two wheeler in his name and he is also an income tax assessee. However, he has not filed any returns to show the exact income hence, the Tribunal has tentatively taken his income at Rs.15,000/- per month and compensated ten months income as Loss of income during the treatment period. 14. The Tribunal has considered Ex.P.15, discharge summary to hold that the claimant was continuously taking treatment for a period more than ten months and he has undergone three operations. This Court finds that, though the claimant/Chinna durai, was admitted as inpatient for less than a month, he has been taking treatment and had undergone three surgeries on 24.07.2013, 27.07.2013 & 30.07.2013. He was asked to come for review after six months. Therefore, it is fair and adequate to compute the Loss of Income Rs.15,000/- per month for six months and not for ten months as assessed by the Tribunal. 15. He was asked to come for review after six months. Therefore, it is fair and adequate to compute the Loss of Income Rs.15,000/- per month for six months and not for ten months as assessed by the Tribunal. 15. Regarding the disability, the Tribunal has accepted the disability certificate issued by the Doctor that the claimant suffers 46.2% disability. Awarded a sum of Rs.92,000/- determining Rs.2,000/- for 1 % disability. While so, the Tribunal has also awarded a sum of Rs.2,00,000/- (Rupees Two Lakhs) as compensation under head of Loss of Earning Power. This Court finds no basis for awarding Rs.2,00,000/- under this head. The Tribunal relying upon the judgment of the Hon'ble Supreme Court rendered in Francisca Luiza Rocha and others vs. K.Valarmathi, which has held that compensation under head of permanent disability as well as under head of earning capacity is permissible has awarded compensation under both the heads without any reasonable justification. 16. The other judgments relied by the Learned Counsel for the respondents are:- (i). B.Kothandapani Vs. Tamil Nadu State Transport Corporation Limited reported in (2011) 6 SCC 420 . (ii). K. Suresh Vs. New India Assurance Company Limited reported in 2012 ACJ 2694 . (iii). S.Manickam Vs. Metropolitan Transport Corporation Limited reported in (2013) 12 SCC 603 . 17. This Court finds that the Tribunal has misapplied the above said judgment of the Hon'ble Supreme Court and the judgment rendered in S.Manickam Vs. Metropolitan Transport Corporation Limited reported in (2013) 12 SCC 603 . The Division Bench of Madras High Court in S.Manickam case, has held that decision in Cholan Roadways Corporation Limited Vs. Ahmed Thambi reported in (2006) 4 CTC 433 , that after awarding compensation under the head of permanent disability, further award under loss of earning capacity is not permissible is incorrect. However, such observation was made as an exception when the injury sustained has palpably caused functional disability to the claimants or when the injury is scheduled injury. 18. The Hon'ble Supreme Court has approved, the award of compensation for permanent disability as well as for Loss of Earning capacity only when the injuries like amputation of limb and finger or of very serious disability having impediment to earn. In this case, the injury sustained by the claimant is (i). comminuted Trochanteric fracture on his right femur bone, hip area (ii). comminuted fracture on right femur (iii). In this case, the injury sustained by the claimant is (i). comminuted Trochanteric fracture on his right femur bone, hip area (ii). comminuted fracture on right femur (iii). Compound comminuted fracture on both bones on the left leg (iv). comminuted fracture on both bones on lower 1/3rd of left forearm. Six simple injuries on his head, left side face, left big toe, right knee, left knee and left shoulder. 19. These injuries had caused only partial permanent disability and not total permanent disability for applying multiplier. The Tribunal also rightly held that in the present case the multiplier cannot be applied but erred in awarding consolidated sum of Rs.2,00,000/- for the loss of Earning Power, without assigning any reason. Hence, the said award under this head has to be set-aside. 20. At the same time, this Court finds that the no compensation was awarded to the Loss of amenity. The injury has caused the restricted movement of his limb, which has taken away the quality of his life. Therefore, a sum of Rs.75,000/- is awarded under the heads of amenity. Accordingly, the award of the Tribunal is modified as below:- Headings Amount in Rupees 1. Loss of Income (Rs.15,000 x 6) Rs.90,000/- 2. Transport expenses Rs.5,000/- 3. Extra Nourishment Rs.10,000/- 4. Damages for cloths and Articles Rs.500/- 5. Medical Expenses Rs.2,44,600/- 6. Pain and Sufferings Rs.75,000/- 7. Disability Rs.92,000/- 8. Loss of amenity Rs.75,000/- Total Rs.5,92,100/- 21. In C.M.A.No.1255 of 2016 against the M.C.O.P.No.691 of 2013, claimant/Malathi. The Claimant/Malathi has sustained the following injury in the accident. (i). Contusion with deformity left shoulder. (ii). Contusion with deformity left elbow (iii). Contusion with abrasion left thigh (iv). Contusion with abrasion right thigh (v). Contusion parieto occipital scalp (vi). Abrasion of left leg (vii). Contusion of right hop. She was in hospital taking treatment for 20 days. Based on the discharge summary marked as Ex.P.47, the Tribunal has awarded Rs.79,200/- towards the 39% partial permanent disability and also awarded Rs.75,000/- for loss of earning power. The Tribunal has fixed the monthly income of the claimant tentatively as Rs.4,500/-, after awarding Rs.45,000/- for the Loss of income, an additional sum of Rs.75,000/- being awarded for the Loss of earning power. The only reasoning given by the Tribunal to award Rs.75,000/- is that, the Hon'ble Supreme Court permits the Tribunal to award compensation both permanent disability as well as Loss of Earning capacity. The only reasoning given by the Tribunal to award Rs.75,000/- is that, the Hon'ble Supreme Court permits the Tribunal to award compensation both permanent disability as well as Loss of Earning capacity. The Tribunal has not applied its mind to know under what circumstances compensation can be awarded under these two heads together. 22. In the absence of specific material to show that the loss of functional disability has caused impairment to the earning capacity, award for disability alone is permissible and no award under loss of future earning power is required. 23. In Raj Kumar Vs. Ajay Kumar and another, the Hon'ble Supreme Court has clearly explained under what circumstances compensation for the loss of future earning capacity can be awarded in case of non-scheduled injury. Fixation of plates, screws and cane wire are not indication for loss of earning capacity. Hence, this Court holds that the award of Rs.75,000/- towards loss of earning power in addition to award of Rs.79,200/- towards disability is duplication of award, hence it has to be deleted. Similarly, loss of income during treatment period has been highly fixed for ten months. The medical record indicates that the injured was taking treatment for less than 20 days. Therefore, loss of income during the treatment period is reduced to six months instead of ten months. Since a sum of Rs.40,000/- awarded for pain and sufferings, no case for award under loss of amenity made out. Accordingly, the award of the tribunal is modified as below:- Headings Amount in Rupees 1. Loss of Income (Rs.4,500 x 6) Rs.27,000/- 2. Transport expenses Rs.5,000/- 3. Extra Nourishment Rs.10,000/- 4. Damages for cloths and Articles Rs.500/- 5. Medical Expenses Rs.1,39,300/- 6. Pain and Sufferings Rs.40,000/- 7. Disability Rs.72,200/- 8. Loss of earning Power ----- Total Rs.3,01,000/- 24. Therefore, this Court holds that the claimant Mr.Chinna Durai, who is the 1st respondent, in C.M.A.No.1254 of 2016 is entitled for a sum of Rs.5,92,100/- and the 1st respondent/Malathi, in C.M.A.No.1255 of 2016 is entitled for a sum of Rs.3,01,000/- with 7.5% interest from the date of petition till the date of deposit. The Insurance Company shall deposit the award amount with interest within a period of 12 weeks from the date of receipt of a copy of this order. On such deposit, the claimant is permitted to withdrawn the same on filing proper application. 25. The Insurance Company shall deposit the award amount with interest within a period of 12 weeks from the date of receipt of a copy of this order. On such deposit, the claimant is permitted to withdrawn the same on filing proper application. 25. In the result, the Civil Miscellaneous Appeals Nos. 1254 & 1255 of 2016 are partly allowed. Consequently, connected Miscellaneous Petitions are closed. No costs.