JUDGMENT (Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of the Motor Vehicles Act, 1988, against the award and decree dated 01.06.2017 made in M.C.O.P.No.400 of 2014 on the file of the Motor Accidents Claims Tribunal, Additional District Judge, Namakkal.) S. Sounthar, J. 1. Aggrieved by quantum of compensation awarded to the 1st respondent /claimant in MCOP.No.400 of 2014 on the file of the Motor Accident Claims Tribunal (the Learned Additional District Judge, Namakkal), dated 01.06.2017, insurer of the offending vehicle owned by 2nd respondent has filed this appeal. 2. The 1st respondent represented by his father Ravi filed Motor Accident Claims Petition in MCOP.No.400 of 2014 on the file of the Learned Additional District, Judge, Namakkal, seeking compensation for the injury suffered by him in a road accident that occurred on 03.12.2013. According to him on that fateful day, he was riding a two wheeler bearing registration No.TN.28 AB 8001 on the left side of the road from South to North and Hero Honda Splendor Bike bearing registration No.TN 28 AE 2625 owned by 2nd respondent came in the opposite direction and was driven in a rash and negligent manner by its driver and dashed against the 1st respondent's vehicle and thereby caused accident. The 1st respondent claimed that due to accident he suffered grievous injuries which crippled his life. He further claimed that due to head injuries suffered by him, he lost his memory power and became bed-ridden. He further claimed that even for fulfilling his basic needs like taking food, water, bathing etc., he is depending on attenders. Since, he was not in a position to lead evidence before the Tribunal and narrate the facts, he filed a petition through his father. 3. The Appellant Insurance Company filed a counter specifically denying the impact of the injuries claimed by the 1st respondent. Appellant specifically denied the averments in the 1st respondent's petition that he lost his memory power and he was bed-ridden. It was also denied that the 1st respondent requires attenders for meeting the basic needs. Apart from that the appellant also disputed the negligence aspect in the counter. 4. Appellant specifically denied the averments in the 1st respondent's petition that he lost his memory power and he was bed-ridden. It was also denied that the 1st respondent requires attenders for meeting the basic needs. Apart from that the appellant also disputed the negligence aspect in the counter. 4. The Motor Accident Tribunal on the basis of the evidence of eye witness-P.w.2, charge sheet-Ex.P.6 and also the admission of driver of 2nd respondent's vehicle, examined as R.W.2 who pleaded guilty before the criminal Court, held that accident occurred only due to negligence of the driver of the 2nd respondent's vehicle. The appellant has not assailed that finding before us. The Tribunal based on the evidences of medical witness P.W.4, came to the conclusion that victim suffered permanent disability of 68% and his day-to-day activity got hampered. The Tribunal based on the Income Tax return submitted by the 1st respondent Ex.P.15 and also evidence of Income Tax Officer who was examined as R.W.1 had fixed the annual income of the 1st respondent/ victim at Rs.1,92,000/-. 5. The Tribunal based on the finding that the 1st respondent/victim suffered disability of 68% and his day-to-day activities are affected had applied multiplier method and fixed Rs.22,19,520/- towards loss of income due to permanent disability and together with medical expenses, pain and suffering, loss of amenities, expenses towards nutrition and transport, fixed total compensation at Rs.36,02,930/-. Aggrieved by the same the appellant Insurance Company has come up with this appeal. 6. The appellant Insurance Company has taken out an application for raising additional evidence in CMP.No.5471 of 2022, wherein it was averred that even during course of trial, the Trial Court advocate of the Insurance Company intimated to the higher office that there was some suppression of material facts concerning the disability suffered by the 1st respondent/victim and based on that appellant appointed a private Investigator to investigate the matter, to find out the real physical condition of the 1st respondent. According to the appellant, the Investigator submitted his report on 04.10.2017 divulging the proof that 1st respondent is not bedridden as contented and deposed before the Tribunal and subsequently he got married. He also pointed out various discrepancies in the avocation and salary said to be received by him as Manager in M/s.Shanmuga Engineering Works. According to the appellant, the Investigator submitted his report on 04.10.2017 divulging the proof that 1st respondent is not bedridden as contented and deposed before the Tribunal and subsequently he got married. He also pointed out various discrepancies in the avocation and salary said to be received by him as Manager in M/s.Shanmuga Engineering Works. It was further averred that by the time the Investigator filed his report on 02.10.2017, the Tribunal had already passed the award and the report was forwarded to the High Court counsel. As the earlier Investigator was not able to get video proof of victim's present condition the appellant engaged M/s.Ramesh Investigation Services, Salem and said Investigator has submitted a report on 01.10.2018 enclosing a video CD. The appellant further averred in the petition that on playing video recorded by the Investigator, they came to know that the 1st respondent is totally fit and hence they prayed for reception of following additional evidence. 1. Original investigation report dated 04.10.2017 submitted by the private Investigator Mr.N.Madeswaran along with enclosures. 2. Original Investigation report dated 01.10.2018 submitted by M/s.Ramesh Investigation Services, along with enclosures, CD and Photographs. 7. The 1st respondent /claimant filed a counter opposing the reception of additional evidence. In the counter the 1st respondent submitted that even before the Tribunal, the appellant Insurance Company filed I.A.No.622 of 2015 to send injured person to the Medical Board and though notice was ordered to the respondent therein (claimant), no notice was served and hence the application was dismissed for default. It was further averred in the counter that appellant Insurance Company had filed a petition to restore the said application in I.A.No.415 of 2016 and the same was contested and dismissed on merit by order dated 06.09.2016. The 1st respondent further submitted in the counter affidavit that the ingredients of Order 41 Rule 27 of CPC is not satisfied and therefore the appellant is not entitled to lead any further evidence. In para 13 of the counter, it is mentioned by the 1st respondent that due to several facial grievous injury and surgeries on lower jaw, there was disfigurement on the face and in the mouth of the 1st respondent. He suffered disturbance in speech and ability to take food. In para 13 of the counter, it is mentioned by the 1st respondent that due to several facial grievous injury and surgeries on lower jaw, there was disfigurement on the face and in the mouth of the 1st respondent. He suffered disturbance in speech and ability to take food. It was further claimed that even after discharge from the hospital the 1st respondent is not able to speak in well versed manner and the fluency of his speech is not proper and cogent. However, the averments of the appellant/ petitioner that the victim was fully fit and he subsequently got married and leading a normal life is not specifically denied in the counter filed by the 1st respondent/claimant. From the averment found in the counter of the 1st respondent, it is clear the victim is not bedridden and suffering from difficulty in carrying on day-to-day activities as claimed by them before the Tribunal. 8. In order to ascertain present state of health of the 1st respondent, we directed him to be present before the Court. He appeared before us and we put questions to him regarding his age, present avocation etc. He replied that he is presently helping his father in his business. From the appearance of the 1st respondent in person before us and our interaction with him in the open Court, we are not able to detect any visible disability in him, the additional evidence sought to be raised by the appellant namely the investigation reports with annexures and CD's etc came into existence only subsequent to the disposal of the case before the Tribunal. These evidences were not available with the Insurance Company at the time of enquiry before the Tribunal. The video clipping of the CD was played before us, wherein we found that the 1st respondent /Victim walks and handles car as a normal person. Since additional evidence which is sought to be raised now were not available with the appellant Insurance Company at the time of the enquiry before the Tribunal, the ingredients of order 41 Rule 27(1)(aa) are satisfied in this case and further we also deem it appropriate that in the circumstances of the case the additional documents filed by the appellants will enable this Court to dispose of the appeal in more satisfactory manner by balancing the rights of all the parties. The 1st respondent in his counter to the petition filed by the appellant to raise additional evidence has not disputed the veracity or correctness of the investigation report or the annexures to the investigation report including the video clippings. Therefore, we feel reception of the additional evidence in the appellate forum would not cause any prejudice to the 1st respondent. In the light of the discussions made above, we feel it appropriate to allow the CMP.No.5471 of 2022 filed by the appellant to raise the additional evidence and the investigation report filed by the private Investigator Mr.N.Madeswaran dated 04.10.2017 with its annexures are marked as Ex.R.1. The investigation report dated 01.10.2018 filed by the private Investigator M/s.Ramesh Investigation Services with its annexures including the CD containing the video clippings is marked as Ex.R2. 9. It is pertinent to note that Income Tax return, Ex.P.15, filed by the 1st respondent/claimant dated 08.02.2014, is subsequent to the accident and therefore, same cannot be considered. The annual income of the victim was shown as Rs.1,95,148/- in Ex.P.15. The Income Tax Sarral form of M/s.Shanmuga Engineering Works in which victim was allegedly employed at the time of accident for the years 2012-13, 2013-14 and 2014-15 were marked as Ex.P.27. The annual income of the concern was shown as Rs.1,20,680/-, Rs.1,26,555/- and Rs.1,57,370. Considering the very low income shown in the Income Tax return of the Shanmuga Engineering Works, the claim of the 1st respondent/claimant that he was receiving salary at Rs.21,600/- per month from M/s.Shanmuga Engineering Works as per the salary slip Ex.P.26 is unbelievable. It was also brought to our notice under Ex.P.15, the victim filed Income Tax return in ITR form 4 which is meant for income from profession or business. Here the victim claimed that he is employed in M/s.Shanmuga Engineering Works and produced salary slip however he has not filed Income Tax return in ITR form 1 which is meant for salaried employees. Therefore, the evidence let in by the victim to prove his income is highly doubtful. It is also not clear whether 1st respondent/claimant obtained leave of Tribunal before presenting petition through his father. 10. The Tribunal based on the evidence of P.W.4 Doctor came to the conclusion that the victim suffered a serious disability hampering his day-today activity and hence applied multiplier method. It is also not clear whether 1st respondent/claimant obtained leave of Tribunal before presenting petition through his father. 10. The Tribunal based on the evidence of P.W.4 Doctor came to the conclusion that the victim suffered a serious disability hampering his day-today activity and hence applied multiplier method. P.W.4 in his evidence deposed that he perused the x-rays, scan report of the victim and the victim had under gone surgery for internal plate fixation in the right hip region and his 7th nerve in the left hand side of his face got damaged in accident which resulted in mal union of his left jaw bone and leakage of saliva. He further deposed that the victim cannot stand, walk or go up in steps and carry on his day-to-day works without the help of an attender. The evidence of P.W.4 referred above is not in tune with the physical condition of the 1st respondent /victim who appeared before us and also appearance of the victim in the video clippings produced by the Insurance Company by way of additional evidence. 11. As per the averments in the claim petition immediately after the accident the victim had taken first aid in Maruthi Hospital in Namakkal and thereafter he was shifted to Ganga hospital, Coimbatore, wherein he under went surgery and other treatments for nearly a month from 03.12.2013 to 09.01.2014. P.W.4 is not a doctor who had treated the victim. As per the evidence, he is the one working in Akshaya hospital, Namakkal. He has given his opinion about the disability suffered by the victim only based on perusal of the x-rays, scan report etc., Since he is not a doctor who treated the victim he is not competent to depose about the disability suffered by the victim. In the light of the additional evidence raised by the appellant and marked as Ex.R.1 and R.2 before this Court, we reject the evidence of P.W.4. It is pertinent to point out as per the law laid down by the Division Bench of this Court, reported in 2016 (1) TN MAC 609 (DB), The Branch Manager, TATA AIG General Insurance Co.Ltd Vs. Prabhu, the disability of the victim shall be assessed by referring the victim to the Medical Board, of the respective districts. The relevant direction of the Division Bench of this Court is as follows. “23. Prabhu, the disability of the victim shall be assessed by referring the victim to the Medical Board, of the respective districts. The relevant direction of the Division Bench of this Court is as follows. “23. For any and all the above reasons, we hereby deem it fit and proper to issue the following direction: 1. We hereby direct that in Motor Accidents claims the Claims Tribunals shall issue a letter to Medical Board in the District of Tamil Nadu, within whose jurisdiction the Claim Petition was pending and in case there was no Medical Board in the said District to the nearest District Medical Board, to examine the injured Claimant/victim and issue a Certificate of Disability within such time as may be specified by the Claims Tribunal. (ii) We hereby direct that the Medical Boar/s shall assess the Permanent disability or lack thereof as per the Disability (Permanent Physical Impairment)- Assessment and Certification -Guidelines & Gazette Notification -issued by Ministry of Social Justice & Empowerment, Government of India -Regd No.DL33004/99 (Extraordinary) Part II, Section 1, June,13, 2001 – published by National Institute for the Orthopaedically Handicapped. (iii) We hereby direct that the Medical Board shall be at liberty to follow its procedures and practices or conduct tests as they may deem fit, for issuance of such certificates of Disability while following the procedures laid down in the Manual above. (iv) We hereby direct that the Medical Boar/s shall be at liberty to charge such fee as may be required from the Insurance Companies or Transport Corporation or such other contesting parties, as the case may be, to pay the same as part of the costs of the proceedings, to the concerned Medical Board. (v) We hereby direct that the Claims Tribunal shall, upon receipt of the Certificate of Disability, in sealed cover from the Medical Board/s concerned, shall issue a certified copy of the said Certificate to the contesting parties, on Application. (vi) We hereby direct that Claims Tribunals shall mark the Certificates of Disability without need for any oral evidence or insisting upon the appearance of Medical Board official or personnel or Doctor, ordinarily, as a matter of course. (vi) We hereby direct that Claims Tribunals shall mark the Certificates of Disability without need for any oral evidence or insisting upon the appearance of Medical Board official or personnel or Doctor, ordinarily, as a matter of course. However, in exceptional cases, this would not preclude the claims Tribunals, for reasons to be recorded in writing, suo motu or at the request of the contesting parties to direct the author/s of the Certificate/s of Disability, from the Medical Board/s, to appear before the Claims Tribunal to answer clarifications, if any sought for. (vii) We hereby direct that the above said procedures and procedure shall come into force on and from 1.8.2016 and time granted, thereof, shall be utilized by all the stakeholders to arrange for necessary logistics support for smooth conduct of proceedings under the new dispensation. (viii) We hereby direct that High Court Registry shall issue a Circular on these directions along with the Judgment with reasons to be sent to Medical Boards in all Districts of Tamil Nadu through the Registry of the District Courts in Tamil Nadu, as soon as possible. (ix) We hereby make it clear that is shall be open all stakeholders including the Registries and Medical Boards concerned, to approach this Court for any clarifications or changes or medications they envisaged for the better implementation of this new dispensation, intended to serve the cause of the innocent Motor Accidents victims/claimants, as the case may be and this Court shall be obliged to consider the same in the circumstances of the case.” 12. The above said directions of the Division Bench of this Court were not followed in this case. The disability of the victim was not assessed properly by referring the victim to the Medical Board. Unfortunately in a case where the Tribunal applied multiplier method, the evidence of a Doctor who had not treated the victim has been relied on. From the averments found in the counter of the 1st respondent/claimant, it comes to our knowledge that appellant Insurance Company filed an application for referring the victim to the Medical Board and notice in that application was not served on the 1st respondent and therefore it was dismissed. From the averments found in the counter of the 1st respondent/claimant, it comes to our knowledge that appellant Insurance Company filed an application for referring the victim to the Medical Board and notice in that application was not served on the 1st respondent and therefore it was dismissed. It is not clear when the 1st respondent was already represented by the Advocate before the Tribunal what was the difficulty for the Tribunal to direct him to take notice in that application and consider it on merit. Further it was also stated by the 1st respondent in his counter that the said application was dismissed for default and thereafter an another application was filed for restoration of the petition dismissed for default. The second application was seriously contested by the 1st respondent and the same was dismissed. It is not known, when there is a mandate by the Division Bench of this Court, that in cases involving road accident, the disability of the victim shall be fixed only by referring him to the Medical Board of the concerned district, what prompted the 1st respondent to oppose the application filed by the Insurance Company seeking restoration of the petition for direction to send the victim to the Medical Board. In the light of the discussion made above, we hold that multiplier method adopted by the Tribunal is erroneous and we proceed to assess the compensation payable to the victim on percentage basis. 13. The accident is of the year 2013, therefore we deem it appropriate to award a sum of Rs.4000/- per percentage of the disability and hence the 1st respondent/ victim is entitled to a sum of Rs.2,72,000/- (Rs.4,000/- X 68) under the head permanent disability. We confirm the award of Rs.9,63,410/- towards medical expenses which is based on bills produced by the 1st respondent. A sum of Rs.2,00,000/- awarded by the Tribunal under head pain and suffering is reduced to a sum of Rs.1,00,000/-. The sum of Rs.2,00,000/- awarded towards loss of amenities and attender charges is confirmed. Considering the fact that victim was treated as in-patient in hospital from 03.12.2013 to 09.01.2014, a sum of Rs.10,000/- awarded towards nutritional expenses is enhanced to a sum of Rs.30,000/-. A sum of Rs.10,000/- awarded towards transport expenses is confirmed. 14. The sum of Rs.2,00,000/- awarded towards loss of amenities and attender charges is confirmed. Considering the fact that victim was treated as in-patient in hospital from 03.12.2013 to 09.01.2014, a sum of Rs.10,000/- awarded towards nutritional expenses is enhanced to a sum of Rs.30,000/-. A sum of Rs.10,000/- awarded towards transport expenses is confirmed. 14. Thus, the compensation awarded by the Tribunal is modified as follows: S. No Description Amount awarded by Tribunal (Rs) Amount awarded by this Court (Rs) Award confirmed or enhanced or granted 1. Permanent Disability - 2,72,000/- Granted 2. Medical Expenses 9,63,410/- 9,63,410/- Confirmed 3. Pain & Sufferings 2,00,000/- 1,00,000/- Reduced 4. Loss of amenities & attendant charges 2,00,000/- 2,00,000/- Confirmed 5. Nutrition 10,000/- 30,000/- Enhanced 6. Transportation 10,000/- 10,000/- Confirmed 7. Loss of income 22,19,520/- - Set aside Total Rs.36,02,930/- Rs.15,75,410/- Reduced by Rs.20,27,520/- 15. In the result, this Civil Miscellaneous Appeal is partly allowed and the compensation awarded by the Tribunal at Rs.36,02,930/- is hereby reduced to Rs.15,75,410/- with interest at the rate of 7.5% per annum from the date of petition to till the date of deposit. The appellant-Insurance Company is directed to deposit the modified award amount now determined by this Court, together with interest and costs, less the amount already deposited, if any, within a period of six weeks from the date of receipt of a copy of this judgment. On such deposit, the 1st respondent is permitted to withdraw the modified award amount, along with interest and costs, less the amount if any, already withdrawn by making necessary applications before the Tribunal. The appellant/Insurance Company is permitted to withdrawn the excess amount if any lying in the deposit to the credit of M.C.O.P.No.400 of 2014 on the file of Motor Accidents Claims Tribunal, Additional District Court, Namakkal, if the entire award amount has already been deposited by them. No costs. Consequently, connected miscellaneous petition is closed.