JUDGMENT :

(Prayer: This Civil Miscellaneous Appeal is filed under Section 173 of Motor Vehicles Act, 1988, to set aside the order and decree dated 22.11.2012 passed in M.C.O.P.No.2058 of 2009, on the file of the Motor Accident Claims Tribunal Third Additional Subordinate Judge Court), Tiruchirappalli.)

1. This Civil Miscellaneous Appeal has been filed against the award passed in M.C.O.P.No.2058 of 2009 dated 22.11.2012, on the file of the Motor Accident Claims Tribunal Third Additional Subordinate Judge, Tiruchirappalli.

2. The appellant herein is the second respondent, the first respondent herein is the claimant and the second respondent herein is the first respondent in the claim petition. The first respondent herein has filed a claim petition in M.C.O.P.No.2058 of 2009, claiming compensation for the injuries sustained by the claimant, in an accident that took place on 06.08.2009. The Tribunal has awarded a sum of Rs. 3,88,425/- (Rupees Three Lakhs Eighty Eight Thousand Four Hundred and Twenty Five only) as compensation. Against which, the appellant has preferred this appeal.

3. A brief substance of the claim petition in M.C.O.P.No.2058 of 2009 is as follows:

On 06.08.2009, at about 04.30 p.m., when the petitioner was riding his motorcycle bearing registration no.TN-57-L-3583 in a slow and cautious manner keeping to the left side of the road near Therasa school, Karur, at the time, a mini bus bearing registration no.TN-55-4579 that belongs to the first respondent came from the opposite direction in rash and negligent manner and dashed against the petitioner's vehicle. The petitioner sustained injuries and he was admitted in Amaravathi hospital, Karur. At the time of accident, the petitioner has completed final year exam in Engineering and before the declaration of the result, he joined L.G. Service Center as a Service Engineering and he received a sum of Rs.5,000/- as salary. Due to the accident, he could not do his day to day work. The petitioner claimed a sum of Rs.5,00,000/- as compensation.

4. A brief substance of the counter filed by the respondents therein is as follows:

The driver of the first respondent drove the vehicle in a careful manner. The accident took place only because of the negligence of the claimant. The accident took place in the middle of the road. Both the vehicles are damaged. The age, occupation and income are all denied.

5. On the side of the claimant, two witnesses were examined and eight documents were marked. On the side of the respondents, no witness was examined and no document was marked. After trial, the Tribunal has awarded a sum of Rs.3,88,425/- (Rupees Three Lakhs Eighty Eight Thousand Four Hundred and Twenty Five only) as compensation to be paid by the second respondent therein. Against which, the appellant has preferred this Civil Miscellaneous Appeal.

6. On the side of the appellant, it is stated that the Tribunal fixed the disability at 42%, without any scientific proof for assessment of the percentage of disability. P.W.2 failed to assess the functional disability. The claimant did not sustain permanent disability and did not suffer loss of earning capacity. Adopting multiplier method is erroneous. The award on various other heads is on the higher side.

7. On the side of the first respondent, it is stated that the injuries caused permanent disability and the claimant is not able to do his day to day work and earning capacity of the claimant is very much affected. The Tribunal is reasonable in applying multiplier method. In support of this contention, a judgment of the Hon'ble Supreme Court in the case of B.Kothandapani v. TNSTC reported in 2012 (2) TNMAC 62 is cited, wherein it is held as follows:

“Taking note of nature of work of injured, partial loss in eye sight, loss of middle finger of right hand, it not only affects his earning capacity, but also affects normal avocation and day-to-day work - In such but also affects normal avocation and day-to- day work – in such circumstances, held, Tri