Assessment of damages under the Motor Vehicles Act, 1988.

JUDGMENT :

(Prayer: Civil Miscellaneous Appeal filed under Section 173 of the Motor Vehicles Act, 1988, against the judgment and decree in M.C.O.P.No.256 of 2008 dated 19.09.2011 on the file of the Motor Accidents Claims Tribunal, II Additional District and Sessions Judge (FTC-5), Tiruppur.)

(This case has been heard through video conference)

1. The Civil Miscellaneous Appeal has been filed challenging the fair and decretal order dated 19.09.2011 passed in MCOP.No.256 of 2008 by the Motor Accidents Claims Tribunal, II Additional District and Sessions Judge (FTC-5), Tiruppur.

2. Aggrieved by the award passed by the Motor Accident Claims Tribunal/ II Additional District and Sessions Judge (FTC-5), Tiruppur, the Insurance Company has filed this appeal seeking to set aside the award passed by the Tribunal.

3. The case in brief is as follows:

On 19.02.2008 at about 6.30 p.m., when the claimant was riding a Motor Cycle bearing Registration No. TN 37 AW 6088 near a Petrol Bunk, Oothukuli road, at that time, the Auto bearing Registration No. TN 39 AD 7850 driven by its driver in a rash and negligent manner, dashed against the claimant, as a result of which, he sustained grievous injuries. The first respondent herein is the claimant before the Tribunal. The second respondent is the driver of the auto and the third respondent is the owner of the auto. Fourth respondent is the owner of the Motor Cycle. The fifth respondent is the Insurer of the Motor Cycle.

4. Mr.S.Arun Kumar, the learned counsel for the appellant/Insurance Company has submitted his arguments. As per his submissions, the claimant suffered only fracture injury and the Tribunal has granted Rs.3,92,880/- for the accident in the year 2008 which is on the higher side. The learned counsel submitted that the assessment of disability is on the higher side and the Doctor has not produced working sheet and he has not substantiated the assessment. He relied on the decision in Rajkumar Vs. Ajaykumar & another reported in 2011 (1) SCC 343 and submitted that the assessment of the disability by the Doctor is only with regard to a particular part and not in respect of the whole body. The burden in on the Tribunal to consider whether the disability would affect the functional capacity of the injured. Therefore, he would contend that in this case, the disability is not permanent and the Tribunal has wrongly adopted multiplier method.

5. Mr.P.Thangavel, the learned counsel for the first respondent/claimant contended that with regard to negligence, there is no contra evidence made by the Insurance Company. Similarly, there is no contra evidence let in by the Insurance Company either to disprove assessment of disability or to disregard the evidence of P.W.2, who is an expert. He submitted that the accident occurred on 19.02.2008 and on the date of the accident, the injured was earning a sum of Rs.6,000/- and the Tribual has fixed only a sum of Rs.3,500/- per month. The proper multiplier to be adopted is 17, however the Tribunal had taken it only as 16.

6. Point for consideration

Whether the award passed by the Motor Accident Claims Tribunal is excessive.

7. Perused the petition and counter in MCOP.No.256 2008 and the impugned award passed by the Motor Accident Claims Tribunal, II Additional District Judge, Tiruppur and the memorandum of grounds of appeal.

8. On perusal of the award passed by the Tribunal, it is found that on the date of the accident, the injured/claimant/first respondent herein was aged 27 years. He had suffered multiple fractures on his thigh and the leg and his avocation was Packing Master and he was paid Rs.6,000/- per month. He would have been unable to attend to his regular work during the period of treatment. Therefore, this Court awards a sum of Rs.18,000/- towards the loss of income during the period of treatment. Considering his avocation, he had not suffered disfiguration