(Prayer: Memorandum of Grounds of Civil Miscellaneous Appeal under Section 173 of the Motor Vehicles Act, 1988 against the award and decree dated 01.09.2014 made in M.C.O.P.No.2138 of 2012 passed by the Motor Accident Claims Tribunal, V Judge, Court of Small Causes, Chennai.)
Memorandum of Grounds of Civil Miscellaneous Appeal under Section 173 of the Motor Vehicles Act, 1988 against the award and decree dated 01.09.2014 made in M.C.O.P.No.2138 of 2012 passed by the Motor Accident Claims Tribunal, V Judge, Court of Small Causes, Chennai.
Memorandum of Grounds of Civil Miscellaneous Appeal under Section 173 of the Motor Vehicles Act, 1988 against the award and decree dated 20.01.2015 made in M.A.C.T.O.P.No.5418 of 2011 passed by the Motor Accident Claims Tribunal, VI Judge, Court of Small Causes, Chennai.
Memorandum of Grounds of Cross Objection under Order 41, Rule 22 of the Code of Civil Procedure, against the award and decree dated 20.01.2015 made in M.A.C.T.O.P.No.5418 of 2011 passed by the Motor Accident Claims Tribunal, VI Judge, Court of Small Causes, Chennai.
1. This batch of appeals and cross objection is directed against the awards passed in two different cases arising out of two separate accidents. In the first set, aggrieved by the impugned award passed by the Motor Accident Claims Tribunal, V Judge, Court of Small Causes, Chennai in M.C.O.P.No.2138 of 2012 dated 1.9.2014 awarding a sum of Rs.5,73,000/-, as against the claim of Rs.15,00,000/-, the Metropolitan Transport Corporation Limited has filed C.M.A.No.1461 of 2016 aggrieved over the quantum and the claimant has filed C.M.A.No.732 of 2015 for enhancement of the compensation.
1.1. In the second set, aggrieved by the impugned award passed by the Motor Accident Claims Tribunal, VI Judge, Court of Small Causes, Chennai in M.C.O.P.No.5418 of 2011 dated 20.1.2015 awarding a sum of Rs.4,04,000/-, as against the claim of Rs.6,00,000/-, the United India Insurance Company Limited has filed C.M.A.No.1807 of 2015 questioning the quantum of compensation and the claimant has filed Cross Objection No.42 of 2016 for enhancement of the compensation. Hence they are taken up together and disposed of by this common judgment. For convenience, the parties will be hereinafter referred to as “the Transport Corporation”,“the Insurance Company”, “the First Claimant” and “the Second Claimant”.
2. In the first set, the learned counsel for the Transport Corporation submitted that when the bus bearing Registration No.TN 01 N 9711, plying on the route No.1A on its scheduled trip from Tiruvanmiyur to Tiruvottiyur, on 16.3.2012 at about 10.10 A.M., stopped at the Mylapore Luz bus stop for alighting and boarding of passengers, the driver of the bus, after the process was over, slowly moved the bus from the bus stop and at this point of time, a male passenger hurriedly tried to board the bus through the rear side foot board, however, after seeing the reckless act of the intending male passenger through the left side mirror, the driver applied the brake to enable the passenger to board safely into the bus. But the passenger did not hold the handle of the board properly and accidentally, being hit by a stone, fell down on the road and sustained injuries. That shows that the accident occurred only due to the gross negligence on the part of the injured passenger. Soon thereafter, he was rushed to St.Isabel's Hospital, Chennai on humanitarian basis. The above chain of events would show that the accident occurred only due to the negligent act of the injured passenger and he alone was responsible for the accident and not the driver of the bus belonging to the Transport Corporation, which was made liable to pay the compensation to the injured. But this aspect was completely overlooked by the Tribunal.
3. Continuing his arguments, he submitted that the Tribunal, ignoring the evidence of the driver of the bus, who was examined as R.W.1, that the accident was invited only by the injured while he was attempting to board the vehicle, placing reliance on the charge sheet filed against the driver of the bus, has wrongly held that the testimony of R.W.1 was neither supported by any independent witness nor corroborated by any document and on that basis proceeded to hold that the accident took place only due to the rash and negligent driving of the driver of the bus. Again with regard to the quantum, the Tribunal, placing reliance on the discharge summary-Ex.P2 issued by St.Isabel's Hospital showing that the First Claimant had sustained crush injury to chest, bilateral multiple rib fractures, bilateral scapular fracture and left humerus fracture, for which he had taken treatment as an in-patient from 16.3.2012 to 27.3.2012 and again from 20.4.2012 to 23.4.2012 in the same hospital and further underwent a surgery for the fracture of proximal humerus left side, thereby ORIF with philos plate was done, has fixed the partial permanent disability at 54%, consequently, at the rate of Rs.2,000/- per percentage of disability, awarded a sum of Rs.1,08,000/- towards partial & permanent disability. Again, under the head loss of income for six months, fixing Rs.6,500/- as his monthly income, the Tribunal has awarded Rs.39,000/- under this head. With regard to medical expenses, it has awarded a sum of Rs.3,45,419/-, a sum of Rs.25,000/- each has been awarded towards loss of amenities, pain and suffering and extra nourishment/transport expenses. In addition thereto, a sum of Rs.5,000/- has been awarded towards attender charges and Rs.500/- towards damage to clothes. In all, the Transport Corporation has been saddled with the liability of Rs.5,72,919/- rounded off to Rs.5,73,000/- to be paid to the First Claimant as compensation along with 7.5% interest per annum from the date of petition till the date of realisation. Hence the quantum, which is unreasonable, is liable to be reasonably modified, he pleaded.
4. Mr.K.Suriyanarayanan, learned counsel for the First Claimant, in support of his appeal for enhancement, submitted that when the manner of accident was already appreciated by the Tribunal and rejecting the defence of the driver of the bus, a final finding of facts had been given by the Tribunal holding that during the course of examination the driver has admitted that the charge sheet has been filed against him and the testimony of R.W.1 was neither supported by any independent witness nor corroborated by any document, it has rightly come
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o the conclusion that the accident occurred only due to the rash and negligent driving of the bus driver and the Transport Corporation, being the owner, has been rightly saddled with the liability to pay the compensation. Hence, when no contra evidence has been adduced before this Court, the said finding cannot be revisited. While coming to the quantum of compensation, he argued that when the injured sustained crush injury to chest, bilateral multiple rib fractures, bilateral scapular fracture and left humerus fracture, he had taken treatment as an in-patient from 16.3.2012 to 27.3.2012, thereby left ICD, arm sling for left fracture humerus was done and ORIF planned at a later stage and once again he was admitted as an in-patient in the hospital from 20.4.2012 to 23.4.2012 and further underwent a surgery for the fracture of proximal humerus left side, thereby ORIF with philos plate was done, resultantly, Dr.N.Saichandran, who was examined as P.W.2, noticed that the injured had sustained crush injury to the chest causing multiple fracture on both sides of the chest and due to multiple fracture on his chest, he developed left sided hemopneumothorax. Explaining further that the multiple fracture over both sides of the chest got mal-united with healed injury, which has caused difficulty in breathing and chest expansion, the doctor has assessed the partial permanent disability at 25%. He further explained that when the fractured bone of the injured is also united in an extended manner with the plate and due to muscle stiffness of left shoulder and elbow joint movements of the shoulder had been reduced from the normal 110 degrees to 80 degrees with restriction of 30 degrees, he submitted that it is a fit case where the Tribunal ought to have applied the multiplier method for arriving at a just and reasonable compensation. Leaving that reasonable course, it has wrongly applied the percentage of disability method, fixing Rs.2,000/- per percentage of disability for 54% disability, has arrived at the sum of Rs.1,08,000/-, as a result the injured, who was a software engineer working in Kingster Technology Solutions, Royapettah on a monthly salary of Rs.10,000/-, was forced to resign his job and he lost not only his job but also his future earning capacity. Now, only due to the accident, he is rendered jobless, hence the multiplier method is to be suitably adopted by this Court.5. Adding further, he submitted that when the injured, being a software engineer at the time of accident, was travelling only as a passenger, due to the rash and negligent driving of the bus driver, the accident occurred due to which, he lost his future earning capacity. As a consequence, the entire family has been put to great difficulty. In view of 54% disability, the injured has no chance of getting employment anywhere, due to muscle stiffness of the left shoulder and elbow joint movements of the shoulder been reduced and the movements of the shoulder has also been restricted from the normal 110 degrees to 80 degrees. Besides, the elbow joint movement has been reduced and restricted from the normal 120 degrees to 90 degrees with loss of 30 degrees movement, resultantly he has lost the left hand grip. He has also sustained bilateral scapular fracture, which was conservatively treated and at present, the fracture of both shoulder joints united in compressed manner with restricted movement of left shoulder joints by 30 degrees from the normal movement, for which the doctor had assessed the partial permanent disability at 70% and issued the disability certificate, Ex.P8, while assessing the disability of fracture of bilateral multiple rib fractures, fracture of left humerus and bilateral scapular fracture at 25%, 35% and 10% respectively. But the Tribunal, combining the whole body disability of the injured, has fixed the disability only at 54%. Finally, assailing the impugned award, finding fault with the conclusion reached by the Tribunal for applying the percentage of disability method instead of multiplier method, he prayed this Court to apply the multiplier method, because only Rs.25,000/- alone has been fixed towards loss of amenities and another Rs.25,000/- has been fixed towards pain and sufferings. Although the injured was taking treatment as an in-patient for 17 days and was not able to attend to his work for six months, the Tribunal has awarded only Rs.39,000/- at the rate of Rs.6,500/- per month. Therefore, he sought for application of the multiplier method and also sought for a reasonable increase in the compensation awarded under the other heads.6. In the second set, the injured Mrs.Sujitha N. Raju, aged about 45 years, working as a school teacher and earning a sum of Rs.30,000/- per month in SBOA School, Anna Nagar West Extension, Chennai, was proceeding on the school road on 18.11.2011, near Tirumangalam Police Station, at about 12.45 hours, an auto-rickshaw bearing Registration No.TN 07 X 0012, belonging to the second respondent owner and insured with the Insurance Company, driven by its driver in a rash and negligent manner at great speed without following the road rules, hit against the Second Claimant, as a result she was thrown out and sustained grievous injuries, namely, fracture of right frontal bone, right sub arachnoid haemorrhage, right frontal contusion with edema, facial injury, injury over both hands and legs, multiple internal and external injuries all over the body. After taking first aid in Sri Devi Hospital, Tirumangalam, she was taken to Vijaya Health Centre for better treatment, wherein she was treated as in-patient from 18.11.2011 to 6.12.2011.7. Mr.K.Suriyanarayanan, learned counsel appearing for the Second Claimant submitted that the doctor M.Saravanabhavanandham, who was examined as P.W.2, after examining the injured, has assessed 40% partial permanent disability. Since the Second Claimant sustained CT brain contusion on right frontal lobe and fronto parietal sub dural haemotoma, all these injuries have given rise to the post traumatic vertigo by hyper extending the neck, for which she was taking antiepileptic therapy and she was continuously taking Tab Eptoin for her 10% prophylatic in nature. Besides, she was also having post traumatic headache. But the Tribunal, ignoring the injuries sustained by the claimant, has fixed 5% towards loss of earning capacity. When the claimant is doing teaching work and earning a sum of Rs.30,000/- per month, this type of work is organised using the brain and since she suffered grievous injuries on her head, her brain work could be definitely affected, because the head injury sustained by her will not permit her to do her previous job, the Tribunal has completely erred in fixing only 5% towards loss of earning capacity. Assailing the approach adopted by the Tribunal in fixing 5% as the loss of earning capacity, Mr.K.Suriyanarayanan, placing on record the discharge summary-Ex.P4 issued by Vijaya Health Centre, submitted that the treatment given by Vijaya Health Centre clearly shows that the injured was diagnosed for hypothyroidism/anxiety disorder, right frontal contusion/fronto parietal sub dural haematoma, right frontal fissure fracture/SAH. The said report further shows that she was discharged with the following advice and medications:-Tab.Cefdiel 300 mg 1-0-1 5 daysTab.Razo 20 mg 1-0-1 1 weekTab.Eption 1-0-2 to continueTab.Decadran 5 mg 1-0-1 2 daysTab.Ectroxin 10 mg 1-0-0 patient is onTab.Oxidol HR 0-0-1 patient is onTab.Expitran 0-0-1 patient is onTab.Quitipin 0-0-1 patient is onShe was also adviced that in case of severe headache, giddiness, vomitting, blurred vision, unable to walk, she has to immediately visit the hospital. Therefore, when the discharge summary shows that the injured had sustained head injury, the Tribunal has fixed only 5% towards loss of earning capacity and arrived at a sum of Rs.3,27,600/- by adopting the multiplier method. Continuing his arguments, he submitted that the Tribunal has fixed only a sum of Rs.15,000/- each towards loss of amenities and pain and suffering and Rs.6200/- towards medical expenses. Therefore, keeping in mind the escalation in the price of essential commodities, suitable amount of compensation should be awarded, he pleaded.8. Opposing the above prayer, Mrs.R.Rathna Thara, learned counsel for the Insurance Company submitted that the Tribunal has grossly committed a grave mistake in applying the multiplier method, when the disability of the Second Claimant was assessed at 5%. Secondly, as on today, she has completely recovered and therefore there is no need for applying the multiplier method. The Second Claimant, being a teacher and earning a sum of Rs.30,000/- per month, has not shown before the Tribunal that she had lost her monthly income due to the accident and she has to further establish before the Tribunal that due to the aforementioned injuries, she had lost the earning capacity to work continuously. Therefore, when the injury has not resulted in the loss of earning capacity and admittedly immediately after the accident, she has been continuously working as a teacher as before, the question of applying the multiplier method does not arise at all, in which event, the fixation of a reasonable compensation by adopting the percentage of disability method would be wise, which has not been done here. In this context, the learned counsel submitted that the Tribunal has miserably failed to determine whether such disability has affected her earning capacity. While ascertaining the partial permanent disability, the Tribunal has to ascertain what activities the claimant was carrying on and what she could not do as a result of the permanent disability for the purpose of awarding compensation under the loss of earning capacity. Thirdly, the Tribunal has to ascertain the avocation, nature of work she was doing before the accident and also her age. Fourthly, the Tribunal has to find out whether the claimant is totally disabled from earning. Therefore, the continuous employment of the injured as a teacher and the continuous receipt of salary from the date of accident clearly shows that there is no loss of earning capacity. Moreover, for applying the multiplier method, it has been a well settled legal position that the Tribunal has to give a finding whether there was functional disability with regard to the whole body. In the present case, there is no finding given with regard to the functional disability. Hence the fixation of 5% disability is wholly misconceived. Further, the application of multiplier method has to be set aside and instead the percentage of disability method alone has to be followed for awarding a reasonable compensation. In support of her submissions, she relied upon a judgment of the Apex Court in Raj Kumar v. Ajay Kumar & another, 2010 (2) TN MAC 581 (SC) to say that before fixation of the compensation towards loss of earning capacity, the Tribunal has to first decide whether the disability has affected the earning capacity. Again referring to another judgment of the learned single Judge of this Court in Divisional Manager, Oriental Insurance Company Ltd., Madurai v. Anbazhagan 2013 (2) TN MAC 196, it was contended that it was not proper to apply the multiplier method when the disability has been not continuous. In the said case, the injured being a Mason, suffered fracture of left frontal bone. After noticing that the doctor has also certified that part of bone has been removed and there is a swelling over the left side of the head, for which he was suffering from nagging headache and vomitting, this Court, finding fault with the Tribunal in fixing the multiplier method, giving a finding that the discomfort is only intermittent and not continuous, held that the Tribunal should not have adopted the multiplier method of calculation. Further, referring to another judgment of the learned single Judge in National Insurance Company Limited v. G.Ramesh and another, 2013 (2) TN MAC 583, it was contended that when this Court in the said case has held that the injured being a Sales Executive, having suffered fracture of Tibia and Fibula, refused to adopt the multiplier method. However, applying the percentage of disability method, this Court has awarded a sum of Rs.3,000/- per percentage of disability. Hence the said judgment is applicable to this case.9. In reply, Mr.K.Suriyanarayanan, learned counsel for the Second Claimant, referring to the judgment of the High Court of Punjab and Haryana in Gurmej Singh v. Vijay Kumar and others, 2012 ACJ 1351, submitted that the principle of how to fix the quantum of compensation for the loss of earning capacity in respect of an injured has been laid down by the High Court of Punjab and Haryana in the said case, wherein the injured happened to be a Hawaldar in Army drawing Rs.8,000/- per month, finding that he had suffered 50% impairment in eyesight and 70% cerebral injury, for which he was hospitalised for 80 days and that the Neurosurgeon had also opined that on account of the head injury the injured had undergone a mild impairment of his mental faculties, further finding that he can no longer work as a soldier, because he was also put on miscellaneous jobs as he was not in a position to handle all jobs and activities that one would be required to undertake as a military personnel, setting aside the finding of negligence assessed by the Tribunal, the High Court has enhanced the award from Rs.3,36,000/- to Rs.12,08,000/.10. Again emphasising on the aforesaid judgment of the High Court of Punjab and Haryana, it was contended that even though a person who had suffered injury may not come for immediate loss if he is retained in the same employment and does not lose his job but in his own saleability elsewhere as a fresh recruit to a new employer, he may come by a serious handicap and the injured cannot secure employment anywhere else and that should be a ground for assessment of loss of earning capacity, has laid down the assessment of compensation stating that in case of injury, it is not merely the financial issues that the Courts look at, but it also factors the loss of amenities in life, pain and suffering and several non pecuniary damages. Moreover, the incapacity to work including inability to work or in other words, there is incapacity for work when a man has a physical defect which makes his working unsaleable in any market reasonably accessible to him, applying the same logic, a person who has suffered injury may not immediately face any loss if he is retained in the same employment and does not lose his job but in his own saleability elsewhere as a fresh recruit to a new employer, he may face a serious hardship. That shall be a justification to provide for compensation in such type of cases. In fact, the judgment of this Court in Management of Sree Lalithambika Enterprises v. S.Kailasam, 1986 ACJ 1150 (Mad) has been referred to by the Punjab and Haryana High Court in the judgment mentioned supra. Therefore, the said principle deserves to be accepted by this Court in the present case also. Hence the contention of the learned counsel for the Insurance Company that by retaining the Second Claimant in this case in the post of teacher does not lead to loss of earning capacity, therefore, there is no need for assessing the loss of earning capacity, shall be liable to be rejected and while rejecting the same, it should be viewed in the context of how a person who is injured cannot secure employment in open market and that should be a ground for assessment of loss of earning capacity.11. Again continuing his arguments, Mr.K.Suriyanarayanan submitted that the injured was a school teacher working in a reputed private school, namely, SBOA School at Chennai earning a sum of Rs.30,000/- per month. While she was walking to school near Thirumangalam Police Station, Anna Nagar, Chennai on the fateful day, she was hit by the offending auto-rickshaw, as a result she sustained grievous injuries including CT brain contusion on right frontal lobe, hypothyroidism, anxiety disorder, right frontal contusion, fronto parietal SDH right and right frontal fissure fracture. Dr.N.Saravanabavanandam, who was examined as P.W.2, after examining the injured, has opined 40% partial permanent disability. The doctor also has noticed extra ocular movements, jerky in nature similar to Nystagmus 10% antiepileptic therapy. She has also developed epilepsy for life long. In view of the above injuries assessed by the doctor along with the medical evidence, it should be viewed in the context that if for any reason the injured claimant is rendered jobless by the present school, her physical defect which makes her work unsaleable in any market, should be a ground for assessment of loss of earning capacity. On this basis, the learned counsel for the Second Claimant submitted that although 5% disability has been fixed by the Tribunal, to ascertain the loss of earning capacity, the multiplier method has to be adopted. Accordingly, as she is presently earning a sum of Rs.30,000/- as the monthly income, the same should be taken as the monthly income and as she was aged about 45 years at the time of accident that took place on 18.11.2011, the multiplier method is to be adopted. In support of his submissions, relying on the judgment of the Apex Court in Nizam Institute of Medical Sciences v. Prasanth S.Dhananka and others, 2010 ACJ 338, he stated that in the said case, when the claimant, an engineering student aged about 20 years, complained of recurring fever, on being examined in the hospital, as the cause of recurring fever could not be identified, he revisited the Nizam Institute of Medical Sciences and an operation was performed on 23.10.90 and the tumour was excised. However, immediately after the surgery, the claimant developed acute paraplegia with a complete loss of control over the lower limbs and some other related complications which led to prolonged hospitalisation and he was ultimately discharged from the hospital on 19.5.91 completely paralysed with no change in his sensory deficit. The discharged record also has shown that the patient required continuous physiotherapy and nursing care on account of infection of the urinary tract and the development of bedsore, etc. Therefore, a complaint was filed before the National Consumer Redressal Commission alleging complete negligence on the part of the doctors and thereby making NIMS vicariously liable and the State of Andhra Pradesh statutorily liable for the negligence of the doctors concerned. Since the allegations were primarily levelled against Dr.P.V.Sathyanarayana before, during and after the operation, since the doctor had not carried out the required pre-operative tests and it was also alleged that negligence in post-operative treatment and care had led to bedsore, severe pain and high temperature and frequent and unnecessary exposure to X-rays which could be a potential hazard later in life, he claimed compensation under various heads. Although the National Consumer Disputes Redressal Commission concluded the negligence and the deficient service of NIMS and its doctors and allowed Rs.15,50,000/-, in appeal, the Apex Court has enhanced the compensation to Rs.1,00,00,000/- inclusive of Rs.7,20,000/- for driver-cum-attendant, Rs.14,90,000/- for nursing care, Rs.10,80,000/- towards physiotherapy, Rs.25,00,000/- for future medical expenses, Rs.25,00,000/- towards loss of future earnings, Rs.10,00,000/- for pain and sufferings, thinking that using the multiplier method would be unreasonable. Therefore, in the present case, applying the multiplier method for assessment of loss of future earning capacity, at least may be considered, he pleaded.12. Again referring to the judgment of the Apex Court in R.D.Hattangadi v. Pest Control (India) P.Ltd., and others, (1995) 1 SCC 551, it was contended that the Apex Court also has openly acknowledged a real difficulty in assessing the exact amount of compensation for the pain and agony suffered by the accident victim and for having become handicapped life long. Proceeding further, the Apex Court has observed that no amount of compensation can restore the physical frame of the victim, because whenever any amount is determined as compensation payable for any injury during an accident, the object is to compensate such injured so far as money could compensate, because it is impossible to equate money with the human suffering or permanent deprivations and money cannot renew a broken and shattered physical frame. When compensation is to be awarded for pain and suffering and loss of amenities in life, special circumstances of the claimant have to be taken into account including his age, the unusual deprivation he has suffered, the effect thereof on his future life and the amount of compensation for non pecuniary loss is not easy to determine, but the award must reflect that the different circumstances have been taken into consideration. On this basis, Mr.Suriyanarayanan requested this Court to enhance the pecuniary compensation claimed by the Second Claimant having regard to the circumstances of the case, as the injured claimant, being a teacher, has become handicapped for life long, the assessment of a reasonable compensation for loss of future earning is required to be fixed.13. Placing on record another judgment of this Court in the case of United India Insurance Company Ltd., Branch Officer, 146 N.Kumar Complex, Tiruchengode v. Veluchamy and another, 2005 (1) TN MAC 87(DB), he submitted that while awarding compensation in the case of non fatal cases, this Court has enunciated the principles governing the cases of non-fatal nature stating that the Courts should approach the issue of awarding damages on larger perspectives of justice, equity and good conscience and eschew technicalities in the decision-making. Since the right to possession of one's own body is primarily a human right and that all possessions and ownerships are extensions of this primary right, while awarding compensation for bodily injuries, it should be substantial and not merely token damages. Although exact pecuniary assessment is not feasible, a reasonable compensation should be fixed keeping in mind the future increment, etc.14. Various other learned counsel representing the Insurance Companies and the claimants have also assisted the Court by making their respective submissions, in the light of the ratio laid down by the Apex Court as well as by this Court.15. Heard the learned counsel for the parties and perused the materials available on record.16. In all the claims made under the Motor Vehicles Act, the burden lies on the claimant to prove the negligence on the part of the offending party. Only after satisfactorily establishing the negligence aspect, damages can be claimed. While determining the damages, the two factors to be considered by the Motor Accident Claims Tribunal are towards pecuniary and non pecuniary damages. While determining the damages, some guess work is always permissible. These are all the basic parameters upon which the Tribunal has to appreciate the burden of proof which lies always on the injured, the damages caused to him, namely, the nature of injury, whether it is minor, multiple, simple or grievous, how long in-patient treatment was given and after discharge from the hospital, how long the treatment was taken as out patient with all necessary documentary evidences issued by the hospital and the doctor. Normally a person using any highway is having a duty to be careful on the road, till he reaches his destination. Any person using the road as a motorist will be always liable if by his action he negligently causes physical injuries to any one by driving his vehicle either two-wheeler, three-wheeler, four wheeler etc., rashly, negligently and speedily. Since any damage caused by negligent conduct is generally actionable irrespective of the kind of activity out of which the damage arose, even in an action based on the tort, the injured/claimant has to discharge his onus showing that the defendant was negligent, namely, there was a failure on his part to take that degree of care which was reasonable in the circumstances of the case. After successfully establishing the burden of proof by the claimant, the role of the Court comes in to fix a suitable amount of compensation payable to the victim of the accident. While doing so, the damages have to be assessed specifically under pecuniary and non pecuniary heads. Pecuniary damages are those which the victim has actually incurred and which are capable of being calculated in terms of money, whereas non pecuniary damages are those which are incapable of being assessed by arithmetical calculations. It has been well settled that pecuniary damages are the expenses incurred by the claimant, namely, (i) medical expenses; (ii) loss of earning of profit upto the date of trial; (iii) other material loss. So far as non pecuniary damages are concerned, they may include (i) damages for mental and physical shock, pain and suffering, already suffered or likely to be suffered in future (ii) damages to be assessed for loss of amenties in life which may include a variety of matters i.e., on account of injury the claimant may not be able to walk, run or sit; (iii) damages for the loss of expectation of life, i.e., on account of injury the normal longevity of the person concerned is shortened; (iv) inconvenience, hardship, discomfort, disappointment, frustration and mental stress in life. It may be mentioned herein that the amount of compensation for non pecuniary loss is not to be determined mechanically. But the award must reflect that the different circumstances have been taken into consideration. While it is always possible to determine the compensation under the pecuniary damages, namely, medical expenses on the basis of medical bills and even the loss of earning of profit upto the date of trial also can be worked out approximately, so far as deciding the non pecuniary damages are concerned, the damages for mental and physical shock, pain and suffering including the damages to compensate the loss of amenities of life, which generally include variety of matters, i.e., on account of injury the claimant may not be able to walk, run, sit or finds it difficult to participate in any social function, have to be considered and the application of some guess work cannot be ruled out. For example, if a doctor having good practice assesses the injured, as a result he is crippled, the Tribunal and the High Court should undertake some guess work to determine a suitable compensation to be awarded under the head. When the guess work is involved for determining the compensation, always the other party can accuse arbitrary exercise of power.17. In the present set of cases, arguments were advanced by Mr.S.Arunkumar harping on the point that when two different yardsticks are being followed by this Court, i.e., multiplier method and percentage of disability method on the basis of disability certificate fixing some percentage of disability, one side supports the practice adopted by this Court for following the percentage of disability method. On the other hand, Mr.K.Suriyanarayanan contended before this Court that when the unforeseen accident has crippled a person from moving here and there, as a result he has been put to unimaginable pain and suffering, it will be very difficult to assess the exact amount of compensation for the pain and suffering, if we follow the percentage of disability, for the reason that this Court has fixed a maximum of Rs.3,000/- per percentage of disability, in such a case, if the injured happens to be a leading doctor or a leading lawyer or a leading businessman and has become paraplegic on account of the injuries sustained by him in the accident, no amount of compensation can restore his physical frame of mind. While so, by adopting the percentage of disability method, in view of the sky rocketing of prices of essential commodities, he won't be suitably compensated, therefore, the multiplier method will be suitable. Accordingly, a prayer was made to dispense with the percentage of disability method, which has become obsolete and to adopt only the multiplier method to fix the amount of compensation payable to a victim of the accident.18. In this context, the respective learned counsel appearing for the Insurance Company and the Transport Corporation, placing on record the judgment of the Hon'ble Division Bench of this Court in the case of Branch Manager, TATA AIG General Insurance Company Limited, Coimbatore v. Prabhu and A.Nataraj, 2016 (1) TN MAC 609 (DB), submitted that when stock witnesses are being utilised to inflate the compensation in favour of the claimants and even sometimes, some doctors are also made to appear regularly before the Claims Tribunal giving rise to a scam like situation in the claim of compensation before the Motor Accident Claims Tribunal, taking note of the major grouse/grievance of the Insurance Company and the Transport Corporation that these medical practitioners do not follow the scientific method and their attempts are dilated to advance the interest of the claimants at times unfairly and this practice and procedure in assessment of permanent disability by various doctors in various Claims Tribunals in the State of Tamil Nadu have led to huge pendency of appeals before this Court also, to avoid all these, directions have been issued by the Division Bench to introduce an uniform system of assessment of disability so as to reduce the pendency of the claims, both on the Tribunals and also on this Court. One of the directions would vest the Medical Boards of the districts concerned, on the basis of the Central Government circular dated 13.6.2001, based on scientific method, to lead uniformity and consistency in assessent. Since this Court has also made it clear that such a uniform practice and procedure in issuance of the certificate of disability by the district medical board shall also come into force on and from 1.8.2016, with a further direction to the High Court Registry to issue a circular on these directions along with the judgment of the Division Bench to the Medical Boards in all the districts of Tamil Nadu through the District Courts in Tamil Nadu as soon as possible, the issue sought to be raised by the First and Second Claimants that while dispensing with the percentage of disability method, the multiplier method should be adopted for fixing the compensation would become redundant and superfluous. The reason is that once the direction given by the Hon'ble Division Bench in the aforementioned case to constitute Medical Board to issue disability certificate is followed and becomes practicable, the apprehension made by the First and Second Claimants that there is always inconsistency in determining the compensation for various injuries permanent or partial permanent would become unnecessary. In this context, it is relevant to extract the relevant portions of the directions issued by the Hon'ble Division Bench of this Court, as follows:-“13. While so, we do not find the claims being disposed of as early as has been mandated or facilitated. In our experience, one of the primary or major causes for the continued pendency of claims either before the Claims Tribunals or before this Court is the divergence in views with regard to the assessment of Permanent Disability and the prevalent practice thereof. Despite the plethora of Case-law on the issue of assessment of disability and fixation of Functional Disability, the rival stands taken by the contesting parties necessitates detailed examination. The claims tribunals may have the benefit of say a decision as in Raj Kumar v Ajay Kumar, 2010 (2) TN MAC 581 (SC) : 2011 ACJ 1 (SC), where the Apex Court has laid down Parameters and Guidelines in this regard. In this very decision the pitfalls associated in assessment of Permanent Disability has been gone into as there is no one strait jacket formula and the fact the Claimants choose to adduce evidence to through Doctors of their choice, makes it more litigation friendly. Of course, the evidence of a Certificate of Disability from Medical Board was commended for acceptance in that decision.14. We do find that the Claimants choose to examine a 'select group of Doctors' virtually 'practising' in this jurisdiction. The Insurance Companies and Transport Corporations repeatedly complain that they are ''Stock Witnesses' and challenge their assessments, even if accepted by Claims Tribunals after discounting the same. We have noted some decisions which have been critical of the mode and manner of assessment of disability by these Doctors who regularly appear before the Claims Tribunals. It is not rocket science to identify the personnel who appear in these proceedings as they are found in the List of Witnesses before various Claims Tribunals all over the State, very regularly. That has been the major grouse or grievance of the Insurance Companies and Transport Corporations that these Medical professionals do not follow proper practices and their assessments are tilted to advance the interest of the Claimants, at times, unfairly. This procedure and practice in assessment of Permanent Disability by various Doctors in various claims Tribunal have led to huge pendency of appeals before this Court also. In fact, one could say without fear of contradiction, that divergence in views on the assessment of disability is the major contributor to the filing of Appeals in this portfolio. We are regularly called upon to play the arbiter in the assessment of disabilities. If only we could introduce an uniform and consistent assessment of disability, the pendency would significantly come down, as scope for challenge would be diminished. That is our endeavour in this case.15. The said sequence of facts, has led us now to believe that if there was a uniform and consistent practice and procedure in the assessment of Permanent Disablement and possibly Functional Disability thereof, then the scope for expeditious disposal of claims may be possible and avoidance of Appeals may also become feasible. Our attention is drawn to the decision in National Insurance Co. Ltd v R.Sivakumar in 2011 ACJ 175 (Mad)(DB), which we extract below:”We are astonished by the award. The Law relating to Accident Claims requires the Court to award Compensation which is just and reasonable and it is better for the Claims Tribunal to bear this in mind. They should neither be niggardly while awarding Compensation to somebody, who is totally paralysed and who comes to Court claiming that because of this accident he is reduced to living death position. At the same time, the accidents Claim Petition is not an occasion for bonanza for persons, who have sustained fractures. The injury sustained must always be co-related to the avocation of the injured to assess the Degree of Disability or Loss of Earning Capacity as the case may be.”“The injured had, in this case, a mere fracture on his right tibia. We will even accept the Doctor's evidence that there is slight difficulty in straightening the leg and therefore there is some incapacity to walk fast. We will also accept the Doctor's evidence that there is slight bending and shortening of the leg. We cannot accept that this injury had in any way resulted in loss of status for the injured in the society and that he had suffered mental agony on account of such status loss.”“The erratic manner in which disability is assessed for fractures and other injuries which are not as grievous as loss of limbs or amputation is neither fair nor just. We feel that there should be some consistency and some uniformity. It pains us to see extravagant awards, for what is really not a major disability. The pain that the injured feels is not something we are ignoring but what we have to assess is the diminishment of his capacity to work and to the loss of earning capacity. (Emphasis Ours).”“In "A Critique on Motor Vehicles Laws" (by Justice K.Kannan & N.Vijayaraghavan, Advocate, 13th Edition, 2008), it is precisely this predicament that is referred to. They observed that the expert witnesses or Doctors, who appear before the Tribunals are stock witnesses. They know no standards, do not conform to any uniform practices. They do not follow any criteria. The Tribunals are also under work pressure and therefore, they just accept or slightly modify the disability as certified by those Doctors. In M.Jayanna's case, 2005 (ACJ) 344 (AP), the unhealthy practices in this field are referred to. In this book, there is a reference to the Notification issued by the Ministry of Social Justice and Empowerment dated 1.6.2001 for applying consistency and uniformity in the assessment of Permanent Disability. Guidelines have been drawn and if it is adopted, the falsification of the degree of disability may be avoided. The authors of this book have made a salutary suggestion which is that, a Medical Board shall be constituted in each District and as a matter of rule, the injured shall appear before the Medical Board and the disability shall be assessed by the Board and the certificate of disability by the Medical Board shall normally be accepted as binding on the Tribunal without need for examination of the author of the same. They have also suggested that a clause may be introduced in the Motor Vehicles Act itself so that some uniform practice is achieved. We hope the Parliament will take note of this.” (emphasis supplied)16. We feel it is possible to introduce changes in the present scheme of things even without seeking a statute change or waiting for one .We make no change in the substance of the law .We feel none is called for also. We feel that what we propose to direct need not and is not tied to the need for such a change. There is no fetter to provide a practice and procedure route of difference, within the existing scheme of things, for introducing the crucial element of uniformity and consistency in the assessment of disability. We find that Road Safety & Transport Bill is now in its Version 5.0 and there is as yet no consensus. And in Version 5.0, we are told that the change discussed in this decision does not form a part. But, we do not think that the directions proposed by us need a statute change. What we are proposing is a procedure and practice change and reference to Medical Board which is embraced every now then, even today. In the meanwhile, we are distressed to note that Claim Petitions are languishing at various stages due to the divergence in views with regard to the assessment of Permanent Disability. The views expressed in Sivakumar case (Mad) and reference made to M.Jayanna v. K.Radha Krishna Reddy and anr., 2005 (ACJ) 344 (AP), are not stray instances. It may be time for this Court to take note and come up with a solution in the larger interest of Motor accidents claims and in fact all stake holders in this jurisdiction. The earlier we come up with a solution the better it would be for all concerned.17. Our attention has been drawn to a decision of the Karnataka High Court in N.Obalaranga v United India Ins.Co.Ltd., Manu KA 0062/2009, where reference has been made to the Central Government Circular dated 13.6.2011, and for assessment of disability by Medical Boards. It makes instructive reading.“The Ministry of Social Justice and Empowerment, Government of India, has issued a Notification dated 1.6.2001 providing Guidelines for evaluation of various disabilities and procedure for certification. This was in modification of the Guidelines issued earlier in the year 1986 and in view of the provisions of Persons with Disabilities (Equal opportunities, Protection of Rights and full Participation) Act, 1995, the Government of India had set up four Committees, in terms of its Order dated 28.8.1998, under the chairmanship of the Director General of Health Services, one each in the area of Mental Retardation, Locomotor and Orthopaedic Disability, Visual Disability and Speech and Hearing disability. Further, in the year 1999, a Fifth Committee was constituted for evaluation of assessment of Multiple Disabilities. The Government has under the said Notification approved the recommendations of the Committees and has issued Guidelines The office of the State Commissioner for Persons with Disabilities, Bangalore has published the same as a booklet. The Guidelines provide for evaluation of disability and the procedure for certification.The disabilities are classified as follows:(a) Visual impairment(b) Locomotor/Orthopaedic disability(c) Speech and Hearing disability(d) Mental Retardation(e) Multiple DisabilitiesThe above are defined and categorised according to the degree or percentage of disability. Minute details as to the manner in which the particular disabilities are to be assessed are provided. These include ready-reckoner tables and formulae for computing the percentage of disability. The authority lo issue a Disability Certificate is a Medical Board duly constituted by the Central and State Governments. Every such Board must consist of at least three members, of which, at least one member is a Specialist from either the field of Physical Medicine and Rehabilitation or Orthopaedics.There is no reason why a Disability Certificate issued in accordance with the above Guidelines by a Medical Board duly constituted, as above, ought not lo be accepted for purposes of determining Compensation payable under the Motor Vehicles Act. This would ensure a reasonably safe, accurate and consistent assessment of disability that can be acted upon by all concerned. A minimum disability of 40% is to be prevalent in a person, to claim benefits under the Disabilities Act, 1995, This, of course, would not be relevant for purposes of claims under the Motor Vehicles Act.It is however to be kept in view that the Medical Board or the Medical Practitioners address the impairment in relation to the human body and not in relation to a person with a particular avocation. The Guidelines prescribed do not envisage a procedure to assess the disability suffered by an individual with reference to his particular avocation, geographical location, educational background, family conditions and such other factors. The evidence of a Medical Practitioners as regards the physical impairment is thus limited in scope, its consequence on the avocation or activity of a Claimant are matters which are to be established at the trial and it is for the Court or Tribunal to assess the loss of earning capacity with reference to the same.”18. We do feel that standardization has been strongly advocated in the above decision. We also find that an RTI query was made to the Health commisionerate, Medical services and Medical education on the issuance Certificates of Disability by Medical Board etc., We find that the authority has confirmed that Private Hospitals were not allowed to give Disability Certificates. Only Government Hospitals, Medical College Hospitals, District Hospitals and Sub District Hospital were empowered to do so. Obviously Medical Board constituted by the Government would be entitled to do so, more so, when attached to Major Government Hospitals or District Hospitals. This fortifies our stand that need has come to introduce the much needed element of uniformity and consistency in assessment of disabilities and standardization in issuance of Certificates of Disability. If consistency and uniformity can be achieved then the disputed area would be significantly reduced. We find that the primary reason for the gross divergence and alleged exaggeration in assessment of Permanent Disability arises from the twin causes of (i) failure to follow one framework in face for such assessment and (ii) and the personnel applying their own varies lines to assess Permanent Disability as is their wont. As pointed out by the Apex Court in Raj Kumar's case it may not be proper to accept the physical disablement at 45% as is reflective of the Medical evidence, without critical examination or construe the functional disability also to be of the same percentage. We find that the Doctors assess percentage without identifying the basis for the same and the Claims Tribunal mechanically reduce say 5% or 10% and conclude that the reduced percentage was functional disability. This is not a healthy practice. The cause for this problem is the near arbitrary assessment of Permanent Disability by the set of Doctors who regularly appear before the Claims Tribunals. We deem it is now time to introduce or usher in a uniform and consistent procedure for such assessment which would rid the need for even examining such Doctors and save time for the Claims Tribunals to dispose of claims. More importantly, it may rid the jurisdiction of the one 'sore point' which is adding to the pendency and Appeals too.19. This Court has pointed out to Central Government Notification on assessment of disability. As pointed out in Raj Kumar's case by the Apex Court that reference and reliance on Persons with Disabilities (Equal Opportunities, Protection of Right and Full Participation) Act,1995 may not afford a solution for all kinds of disablements suffered in a Motor accident. Instead, we find that 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, Sec 1, June,13, 2001- published by National Institute for the Orthopaedically Handicapped, is a comprehensive test and manual put in place. On going through the same we find that it has been drafted and crafted meticulously and has given formula which may lead to arithmetical accuracy in assessment of Permanent Disability. Or at least it reduces the scope for divergence in assessment and introduces the much needed element of uniformity and consistency in assessment of permanent disability .We find that the Guidelines have the backing of scientific analysis and data and methods devised to reduce the scope for speculation or arbitrariness. This is what this Court had commended acceptance in Sivakumar's Judgment.20. We feel that time has come to take advantage of this readily available Scientific method of assessment of Permanent Disability. There is even a Format of the Certificate devised herein and if the certification was on these lines, it would surely rid the gross divergence and dispute and enable an element of uniformity and consistency sorely missing as of now. It would at least enable the Claims Tribunals and Courts to confidently rely upon the said certificates. It is true that as on date there is no bar for private practitioners to adduce evidence on behalf of Claimants or even the Insurance Companies and Transport Corporations. This practice allied with the absence of one Scientific method followed in practice are the causes for the ails in this area. We need to rid the same to enable certainty in expeditious disposal of claims and also avoid the scope and chances for continued challenge in Appeals too.21. If the scientific basis identified by us as the basis for assessment of Permanent Disability is followed then it may lead to uniformity and consistency in assessment. To strengthen it further and ensure it was so, we feel that such assessments of Permanent Disability may now be vested with the Medical Boards in the Districts of Tamil Nadu, to lend it further credibility and authenticity, instead of allowing them to be challenged as the assessment of 'Stock Witnesses'. Hitherto, reference to Medical Board is sought for in exceptional cases and not as a matter of rule. There are even instances of such relief being declined and challenges mounted before this Honble Court. Be that as it may, we feel that if Certificates of Permanent Disability are issued by Medical Boards in the Districts where the claims are pending and they are based on the Central Government Circular dt.13.6.2001, then scope for challenge of the same may be driven out to a large extent. In addition thereto, a positive fall out could be that such Certificates could be marked without the need to examine the Medical Doctors, who are otherwise required to be examined. Time taken for proving the Permanent Disablement may be shortened and the proof also would be credible, authentic, uniform and consistent. It would be much needed and most welcome medicine for this jurisdiction now infested with far too many claims thanks to the burgeoning number of Motor Accidents. We have little hesitation in commending its acceptance as early as possible.22. We are aware that the infrastructure must be in place before the Medical Boards for facilitating the issue of such Certificates of Disability. Equally, the stake holders need to get ready for this changed dispensation which would result in marking of the Certificate of Disability from the Medical Boards as a matter of course without need to have them marked through Witnesses or be subjected to cross examination as before. There should be no difficulty to embrace this procedure is mandated to be Summary in nature (Sec.169). So be it. There cannot be complaint or grouse from either side for the remedy of credibility, authenticity allied with uniformity and consistency would overwhelm any other aspect. The stakeholders in this jurisdiction would get to gain immensely considering that the Claimants/victims may no longer need to seek certification from Doctors or have them examined and matters disputed and delayed based on assessment of disability. Equally, the Insurance Companies and Transport Corporations, in particular, may have their major grouse and grievance of 'Stock Witnesses' certifying disability be ruled out. Medical Board has the authority of law and is an independent body. The Medical Board is also required to assessed the Permanent Disability based on the Central Government Circular dt.13.6.2001.The sorely missing element of uniformity and consistency would surely lead to early disposal of claims and possible settlements of the same. Further, scope for dispute in Appeals on divergence in assessments of disability would be considerably reduced. In effect, the procedure we have hit upon and devised for follow up and practice would go a long way in aiding and assisting the Parliamentary mandate to provide speedy succor and relief to innocent Motor Accidents claims. It would truly be a win win situation for all stakeholders concerned.23. For any and all the above reasons, we hereby deem it fit and proper to issue the following directions:(i) 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 Board/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, Sec 1, June,13, 2001- published by National Institute for the Orthopedically 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 procedure laid down in the Manual above.(iv) We hereby direct that the Medical Board/s shall be at liberty to charge such fee as may be requied from the Insurance Companies or Transport Corporations 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. 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 procedure 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 or 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 it shall be open to all stakeholders including the Registries and Medical Boards concerned, to approach this Court for any clarifications or changes or modifications 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.”19. In view of the above, this Court is not inclined to delve any more on this issue to determine or devise a mechanism or practice or method, as this would further cause confusion to the Claims Tribunal apart from creating more pendency of claims before all forums.20. Be that as it may. Now coming to the case of the Second Claimant, it is her claim that she was working as a teacher and earning a sum of Rs.10,000/- per month. No doubt, she has not established before the Tribunal that due to the injuries sustained in the accident, she lost the earning capacity, as she has been continuously working as a teacher as before. However, since the Second Claimant was hit by the rash and negligent driving of the driver of the auto-rickshaw and sustained grievous injuries, namely, fracture of right frontal bone, right sub arachnoid haemorrhage, right frontal contusion with edema, facial injury, injury over both hands and legs, multiple internal and external injuries all over the body, the Tribunal has fixed only 5% towards loss of earning capacity and applied the multiplier method keeping in mind the aforementioned injuries and also the period of treatment as in-patient from 18.11.2011 to 6.12.2011. Therefore, this Court is not inclined to interfere with the impugned award. Accordingly, C.M.A.No.1807 of 2015 filed by the Insurance Company is dismissed. For the very same reasons, the Cross Objection No.42 of 2016 filed by the Second Claimant is also dismissed. The appellant is directed to deposit the entire compensation amount to the credit of the M.C.O.P.No.5418 of 2011 on the file of the Motor Accident Claims Tribunal, VI Judge, Court of Small Causes, Chennai within a period four weeks from the date of receipt of a copy of this order, if not already deposited. On such deposit, the Second Claimant is entitled to withdraw the entire amount with accrued interest by moving appropriate application before the Tribunal.21. So far as the quantum of compensation awarded to the First Claimant is concerned, when the injured First Claimant had sustained crush injury to chest, bilateral multiple rib fractures, bilateral scapular fracture and left humerus fracture, he had taken treatment as an in-patient from 16.3.2012 to 27.3.2012. Moreover, left ICD, arm sling for left fracture humerus was done and ORIF planned at a later stage and once again he was admitted as an in-patient in the hospital from 20.4.2012 to 23.4.2012. This apart, he also underwent a surgery for the fracture of proximal humerus left side, thereby ORIF with philos plate was done. P.W.2-doctor, who examined the injured, has also deposed that due to the multiple fracture on his chest, he developed left sided hemopneumothorax. Besides, due to muscle stiffness of left shoulder, the elbow joint movements of the shoulder had been reduced to 30 degrees. As this would definitely affect the earning capacity of a software engineer, this Court is inclined to apply the multiplier method, instead of the percentage of disability method adopted by the Tribunal, keeping in mind that the First Claimant was forced to resign his job due to the accident, in the case of the First Claimant. Therefore, the sum of Rs.1,08,000/- at the rate of Rs.2000/- per percentage of disability for 54% disability as awarded by the Tribunal is set aside. Instead, this Court is inclined to award a sum of Rs.4,64,100/- (Rs.6500x12x17x35/100) by fixing his functional disability at 35% and adopting the multiplier of 17 since the injured was aged about 30 years at the time of accident. However, this Court is not inclined to modify the compensation awarded by the Tribunal under other heads. Accordingly, the First Claimant is entitled to a total compensation of Rs.9,29,019/-, which is rounded off to Rs.9,29,000/- with interest at 7.5% per annum from the date of petition till realisation. With this modification in the award of the Tribunal, C.M.A.No.1461 of 2016 filed by the Transport Corporation stands dismissed and C.M.A.No.732 of 2015 filed by the First Claimant stands allowed. Consequently, all the connected miscellaneous petitions are closed. There shall be no order as to costs. Needless to mention that the Transport Corporation shall deposit the enhanced compensation amount to the credit of the M.C.O.P.No.2138 of 2012 before the Motor Accident Claims Tribunal (V Judge), Court of Small Causes, Chennai within a period of four weeks from the date of receipt of a copy of this order. On such deposit, the First Claimant is entitled to withdraw the entire amount with accrued interest by moving appropriate application before the Tribunal after paying the requisite Court fee.
"2017 (2) TNMAC 293,"