The main legal point established in the judgment is the assessment of compensation for disability and the application of multiplier for loss of earning power, in accordance with the principles laid down by the Hon'ble Supreme Court in Raj Kumar vs Ajay Kumar & Anr reported in [2011 ( 1) SCC 343].

JUDGMENT :

(Prayer: Civil Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988, against the award and decree dated 16.02.2016 made in M.C.O.P.No.2183 of 2013 on the file of the Motor Accident Claims Tribunal, II Court of Small Causes, Chennai.)

(The case has been heard through Video conference)

1. This appeal is by the Insurer, aggrieved by the award passed by the Motor Accident Claims Tribunal, II Court of Small Causes, Chennai. It is alleged that that award is based on unreasonable and unscientific assessment of loss and disability.

2. The claim petition reads as follow:-

On 02/12/2012 at about 13.00 hours, while the claimant was proceeding from East Tambaram to Irumbuliyur along Sudhanandha Bharathi Street, North to South direction in his motorcycle bearing registration No. TN-22-BS-2661, a car bearing registration No.TN-21–AW– 9371 from the opposite direction dashed the motorcycle in which the claimant has suffered comminute fracture of left leg bones, severe avulsion injury in left leg below knee and injury over both shoulder. The injured was admitted at Chrompet Government Hospital and later at Puttur. He incurred medical expenses about Rs.20,000/. Due to the injuries, he is unable to attend any work. Before accident, he was working as a Driver earning Rs.4,500/- per month with Rs.250/- batta per day. Rs.12,00,000/- was sought as compensation for the loss of earning, disability and other conventional and non-conventional loss. Relief sought against the owner of the car and its insurer.

3. Counter of the insurer reads as follow:-

The insurance policy issued to the car subject to terms and conditions. The car is a tourist cab. To drive that car, the driver must possess LMV license with batch. In the instant case, the tourist cab driver had no valid driving license. The insurer cannot be held liable in case of violation of policy condition. Further, the accident being head on collision between the car and the two wheeler, the claimant is also guilty of contributory negligence. The claim of income, loss of earning, disability and pain and suffering are all exaggerated to get higher claim.

4. Before the Tribunal, 2 witnesses for the claimant and one witness for the respondent were examined. 6 exhibits were marked on the side of the claimant and 4 exhibits were marked on the side of the respondent.

5. The Tribunal based on the certificate Ex.P-5 issued by PW-2 has fixed the disability as 40% and also taking note of the fact that the claimant is a heavy transport vehicle driver as per Ex.P-4, applied multiplier for loss of earning power. The Tribunal for computation of loss of income has fixed Rs.9000/- per month as notional income and awarded a total compensation of Rs.9,56,200/-.

6. The learned counsel for the appellant submit that, the Tribunal erred in applying multiplier for loss of earning power. Further, after applying the multiplier for the non-schedule injury, the Tribunal has also awarded a consolidated compensation for the disability for the same injury. This double payment is contrary to law. The Tribunal award is in violation of the principle laid down by the Hon'ble Supreme Court in Raj Kumar vs Ajay Kumar & Anr reported in [2011 ( 1) SCC 343].

7. Referring to the evidence of the claimant that he is still working as acting driver, the learned counsel for the insurer submit that the admission of the claimant proves that the accident injuries have no bearing on the earning power of the claimant. For the temporary loss of income and disability, the tribunal has awarded Rs.36,000 and Rs.1,20,000/- respectively. Also an additional sum of Rs.24,000/- was awarded for loss of amenities. While so, the compensation of Rs.6,91,200/- under the head loss of earning capacity is excessive, unreasonable and unscientific.

8. Heard the learned counsels and records carefully considered.

9. Before the Tribunal, th