R. POORNIMA, J.

The appellant/ Insurance Company has filed the Civil Miscellaneous Appeal in C.M.A(MD)No.772 of 2021 and the claimant has filed C.M.A.(MD)No.856 of 2021 against the fair order and decreetal order dated 19.02.2021 passed in M.C.O.P.No.126 of 2016 by the Motor Accident Claims Tribunal, Special Subordinate Court, Tiruchirappalli.

2. The brief facts of the averments filed by the claimant before the Tribunal is as follows:

(i) On 13.10.2015 at about 8:45 PM, the petitioner purchased groceries in Karaikudi and returned to his house in a two-wheeler from Karaikudi to Madurai Main Road. The petitioner drove his vehicle at a normal speed, adhering to traffic rules and keeping the extreme left side of the mud Road. When he neared TNSTC depo, the first respondent?s vehicle bearing registration No.TN 38 AS 9632 APE, a three-wheeler coming from opposite direction viz., West to East and run by its driver in a rash and negligent manner with the hectic speed suddenly came to the extreme left side of the road and dashed against the petitioner.

(ii) Due to the accident, the petitioner sustained the following injuries viz., 1. comminuted fracture of the upper portion of blade 2. The spine of right scapula with adjacent soft tissue haematoma. 3.Edema in the right scapula region. 4. Predominantly right suprascapular, elavicular region. The petitioner-s motorcycle was fully damaged.

(iii) Due to the accident, the petitioner sustained bone fractures in the right leg, ankle, foot, and right hand and injuries all over the body. Immediately, the petitioner was taken to the Government Hospital in Karaikudi. He was admitted as an inpatient in Apollo Hospital, Madurai on 14.10.2015 and discharged on 20.10.2015. Even after the best treatment given by the Orthopedician, the petitioner could not recover properly.

(iv) The petitioner was again admitted as a patient in Ganga Hospital, Coimbatore. He had undergone major surgeries for fracture bone in his leg and hand for dislocation of joints, tissues, and muscles. Even after that treatment given by the Specialist, the petitioner could not move his right hand and right leg properly. The petitioner is taking treatment periodically as an outpatient. As per the advice of the doctor, the petitioner has to be on bed rest till his lifetime.

(v) The petitioner, even now unable to walk properly. Due to the multiple and grievous injuries, sustained by him, he could not go for any work as before. At the time of the accident, the petitioner was working as a Senior Technician in TCP Limited, Koviloor, Karaikudi, Sivaganga District, and he was getting a salary Rs.20,000/- per month. In TCP Limited, (chemical industries) the petitioner has to work nearly 10 hours, he has to move here and there frequently to do his work in industries. Due to multiple fractures in his hand and leg, he could not move his hand and leg as before. As per the advice of the Doctor, the petitioner could not continue his work. So he has got permanent disability and a total loss of income in future.

(vi) Since the accident happened due to rash and negligent, driving of the first respondent-s driver, a case has been registered against the first respondent driver in crime No.232/ 15 for the offence under Sections 279, 337 IPC by the Kunnakudi Police Station which is pending for investigation.

(vii) At the time of the accident, the first respondent vehicle was insured with the second respondent, hence both respondents are jointly and severally liable to pay compensation to the petitioner.

(viii) The petitioner prayed compensation of Rs.75 lakhs for loss of income, permanent disability, pain and suffering, mental agony, medical expenses, future medical expenses, transport, expenses, future loss of income, damage to his cycle and etc., which is modest and reasonable.

3. The brief averments contained in the counter filed by the 2nd respondent are as follows:

(i) The 2nd respondent denied the entire allegations contained in the petition.

(ii) At the time of the accident, the petitioner was driving a motorcycle bearing a registration No.TN 48 J 6391. He had no valid and effective driving license to drive the above motor motorcycle at the time of the accident. It is a violation of Motor Vehicles Act and Rules made thereunder. The petitioner does not know how to drive the motorcycle at the time of the accident. Therefore, this respondent is not liable to pay any amount as compensation to the petitioner.

(iii) Without prejudice to the above contentions, the respondent states that on 13.10.2015, at about 8.45 PM, the first respondent vehicle (Piaggio Ape 3 wheeler) bearing Registration No.TN 38/AS?9632 driven by its driver with all care and caution was proceeding towards Karaikudi from Tiruppur. The road at the place of occurrence is from east to west. The first respondent-s Piaggio Ape 3-wheeler) bearing Registration No.TN ? 38/AS 9632 was proceeding near the TNSTC depot at Koviloor. The petitioner came in the opposite direction in a two wheeler bearing Registration No.TN 48/J?6391. The petitioner drove the motorcycle at a high speed, rash and negligent manner and instead of keeping to his left side of the road.(Southern Side) drove it to the wrong side (Northern side) and dashed against the first respondent?s vehicle. Thus the driver of the first respondent was in no way responsible for the accident. The petitioner cannot claim compensation for his own. On 14.10.2015, at about 15.30 hours, the petitioner preferred FIR containing false allegations. It is reliably learnt that the petitioner had no valid and effective driving license to drive the motorcycle at the time of the accident.

(iv) In any event, the accident had happened due to contributory negligence on the part of the petitioner. The accident happened in the centre of the road. It will clearly show that the petitioner is also responsible for the accident.

(v) The age, occupation, and monthly income of the petitioner as alleged in the petition are not admitted and the petitioner is put to strict proof of the same.

(vi) The nature of the injury, period of treatment, permanent disability and medical expenses incurred as pleaded in the petition are not admitted. The claim amount is highly excessive and without any basis. Hence, the petition is liable to be dismissed.

4. On the side of the petitioner, PW1 to P.W.3 were examined and Ex.P1 to Ex.P27 were marked. Ex.X1 to Ex.X10 were marked. The Medical Board issued disability certificate which was marked as Ex.C1. On the side of the 2nd respondent, no witness was examined and no document was marked. The first respondent did not appear, called absent and set experts.

5. After hearing both sides, the trial Judge awarded compensation
of Rs.33,66,750/- under the following heads :

Category Amount (Rs.)
Permanent disability 27,62,000
Pain and sufferings 75,000
For lack of convenience and discomfort 10,000
Medical expenses 1,67,750
Future Medical expenses 50,000
Extra nourishment 10,000
Attendant expenses 10,000
Travel expenses 50,000
Damages to clothing 2,000
Bonus income 2,70,000
loss of income 10,000
Total 33,66,750

The learned Judge directed the 2nd respondent Insurance company to pay the
entire amount within a period of two months.

6. Aggrieved by the said order, the Civil Miscellaneous Appeal in C.M.A.(MD)No.772 of 2021 has been filed by the Insurance Company who is the 2nd respondent before the lower Court against the quantum of compensation with the following among other grounds :

(i) That the Tribunal ought not to have found that the injured claimant has suffered functional disability or total disablement so as to involve the schedule II appended to the Motor Vehicle Act.

(ii) That the Tribunal ought to have found that the injured claimant himself has voluntarily left the job and it has been culled out from the cross-examination of witnesses that it was not the employer of the injured claimant which terminated the services of the injured claimant, per contra it was the injured claimant who volunteered to quit the job. Hence the Tribunal ought to have found that there was no functional disability resulting in loss of avocation for the injured claimant.

(iii) The Tribunal has not chosen to appreciate the findings of the appellant/2nd respondent relating to findings on functional disability in proper perspective.

(iv) That the Tribunal ought to have appreciated the judgment of the Hon-ble Supreme Court of India reported in Rajkumar vs. Ajaykumar reported in 2011 (1) ACJ page 1 SC and ought to have found that there was no functional disability for the injured claimant resulting in loss of avocation.

(v) That the decision of the Tribunal to apply the multiplier formula is not proper and the same is liable to be reversed and set aside.

(vi) That the Tribunal not followed the multiplier formula the grant of compensation would not have been a huge one.

(vii) That the Tribunal was not justified in fixing the disability at 60% and ought not to have granted a sum of Rs.27,62,100/-
towards multiplier towards future loss of earning by calculating the disability at 60%.

(viii) That the Tribunal was not justified in granting a sum of Rs.2,70,000/- as loss of bonus which is impermissible.

(ix) That the Tribunal ought to have found that once the medi claim policy has been pressed into service and once the medical expenses are reimbursed, the claimants are disentitled to claim the same from the Insurance company.Hence, prayed to set aside the judgment of the trial Court and allow the Civil Miscellaneous Appeal.

7. Aggrieved with the impugned award, the Civil Miscellaneous Appeal in C.M.A.(MD)No.856 of 2021 has been filed by the claimant before the lower Court for enhancement of compensation on the following grounds :
(a) That the Tribunal had failed to award fair and just compensation which is against law.

(b) That Ex.P.11 is the disability certificate given by a Private Doctor and he had assessed the disability at 82%. When that being so, reducing the disability at 60% by the lower Tribunal without any evidence or witnesses on the side of the insurance company is perverse and warrants interference by this Hon-ble Court.

(c) That the Tribunal ought to have seen that the appellant / claimant was engaged as Selection Grade Technician in manufacturing department at TCP Limited Company. Because of the disability suffered by the appellant herein had lost his employment and as such had suffered loss of earning capacity.

(d) That the Tribunal ought to have seen that because of the 82% of permanent disability suffered by the appellant he was not able to do his avocation of Technician and it is impossible for him to any activity regarding the work of Technician and as such he has suffered functional disability and as such his disability ought to have been calculated at 100%.

(e) That the Tribunal ought to have seen that as per the apex court judgment reported in 2011 (1) SCC 343 when any person had suffered a permanent disability then it is the duty of the Tribunal to assess his loss of earning capacity and to grant a fair compensation. It is the specific case of the appellant that he had suffered functional disability and had lost his avocation for rest of his life. When that being so, the Tribunal ought to granted 100% disability to the appellant and ought to granted compensation to the appellant by adopting multiplier method as per the judgment of the apex court above referred.

(f) That the Tribunal ought to have seen that the appellant is taking continuous treatment due to the impact of the accident and also submitted sufficient proof and evidence to show the treatment taken by him. When that being so, the Tribunal ought to have awarded compensation towards the future medical expenses.

(g) That the Tribunal had awarded a sum of Rs. 1,67,750/-towards the medical bills, but the appellant had produced medical bills for a sum of Rs. 2,49,384/- through Exs.P.5,8,10 and12, when that being so, the Tribunal ought to have awarded the said sum without any deduction and hence the same warrants interference by this Court.
Therefore, he prayed to enhance the award amount by modifying the order of the trial Court.

8. Since the Civil Miscellaneous Appeals arose out of the judgment in M.C.O.P.No.126 of 2016, issues, facts, evidences and documents involved in these Civil Miscellaneous Appeals are all one and the same, they are taken up for hearing together and are disposed of by this common judgment.

9. Heard the learned counsel on either side and perused the materials available on record.

10. Ex.P1 FIR has been registered in crime No.232/2015 dated 14.10.2015 against one Kannan, driver of the first respondent for the offence under sections 279, 337 IPC before the Kundrakudi Police Station. The petitioner is the complainant. Ex.P2 is the accident register issued by the Assistant Surgeon, Government Hospital, Karaikudi, to the petitioner dated 13.10.2015 certified on 10.12.2015, that the injuries are grievous in nature. Ex.P3 is the wound certificate issued by the Apollo Hospital on 19.11.2015 to the petitioner in which the nature of the injury has been mentioned as grievous in nature. Ex.P4 is the charge sheet in Crime No.44 of 16 was filed against the first respondent-s driver Kannan for the offence under sections 279, 337, 338 IPC by the Sub Inspector, Kundrakudi and a sum of Rs.1,000/- fine paid before the Lok Adalath by the accused. Ex.P5 is the bill for a sum of Rs.24,046/- issued to the petitioner by Apollo Hospital. Ex.P6 discharge summary issued by the Apollo hospital to the petitioner on 20.10.2015, which reveals that the petitioner was admitted to Apollo Hospital on 14.10.2015, for the following injuries:?..

?PAN BRACHIAL PLEXUS INJURY RIGHT SIDE.
CERVICAL CORD CONTUSION.
POSTTRAUMATIC RIGHT SUBCLAVIAN ARTER
FRACTURE SCAPULA RIGHT SIDE.
zPNEUMONITIS.
TYPE II DIABETES MELLITUS.
MULTIPLE INJURIES- LEG AND SCALP?

He was discharged on 20.10.2015. Ex.P7 is the CT scan report dated 14.10.2015. Ex.P8 is the bill issued on 20.10.2015 for Rs.81,637/-. Ex.P9 is the discharge summary issued by Ganga Medical Centre Hospital Coimbatore reveals that the petitioner was admitted on 16.12.2015 and discharged on 23.12.2015, he was admitted for difficulty in using his right upper limb. Ex.P10 is the medical bills issued by Ganga Hospital for a sum of Rs.1,13,670/-. Ex.P11 is the certificate issued by Ganga Medical Centre dated 20.01.2016 certified that the petitioner has no Power in his right hand not able to use his right hand for his day-to-day activities. Ex.P12 medical bills for a sum of Rs.16,147/-. Ex.P13 is the reliving order dated 21.2.2018, issued by the employer of the petitioner which reveals that the
petitioner was relieved from his duty with effect from 13.10.2015. Ex.P14 is the service certificate issued by TCP Limited, dated 21.02.2018 shows that the petitioner-s gross salary was Rs.17,050/-. Ex.P15 is the 10th Mark certificate of the petitioner. Ex.P16 is the Higher Secondary mark sheet of the petitioner. Ex.P17 is the Diploma certificate issued to the petitioner by the State Board of Technical Education and Training. Ex.P20 is the pass book issued to the petitioner by the District Differently abled Welfare Officer, Government of Tamil Nadu, Trichy which shows that the petitioner-s degree/percentage of disability is 70%. Ex.P21 is the transportation charges for a sum of Rs.59,396/-. Ex.P22 is the driving license of the petitioner. Ex.P22 is the RC Book for the two-wheeler bearing Registration No.TN 48 J 6391. Ex.P24 is the photograph of the petitioner. Ex.P27 is the disability certificate issued by the Medical Authority, Department of Empowerment of Persons with Disabilities, Ministry of Social Justice and Empowerment, Government of India, Tiruchirapalli, showing that
the petitioner has 70% partial disability.

11. Ex.X2 is the letter issued by the petitioner to his employer, seeking permission to resign his post. Ex.X3 is the payment dated 17.10.2016, by TCP Limited towards employee bonus for the year 2016, reveals that the petitioner was paid bonus at Rs.18,809/-. Ex.C1 is the disability certificate issued by Medical Board, Trichy shows that the percentage of disability is 40%.

12.The learned counsel appearing for the claimant argued that as per the claimant, who is the appellant in C.M.A.(MD)No.856 of 2021, the Department of Empowerment of Persons with Disabilities, Ministry of Social Justice and Empowerment has assessed the disability of the applicant as 70% and issued disability certificate under Ex.P20. The Tribunal had fixed the disability as 60% without any contrary evidence or witness produced by the Insurance Company warrant interference Ex.P11 is the disability certificate given by a private Doctor who had assessed the disability at 82% when that being so reducing the disability at 60% by the Tribunal is perverse and
warrants interference by this Court.

13. He further argued that he was engaged as a Selection Grade Technician in a Manufacturing Department at TCP Limited. In view of the disability he had lost employment as such he had suffered loss of earning capacity. The Tribunal ought to have considered that because of permanent disability suffered by him, he is not able to do his avocation of technician and it is impossible for him to perform activity regarding the technician and he has suffered from a functional disability and the disability ought to have been calculated at 100%.

14. As per the judgement of the Apex Court in Rajkumar Vs. Ajaykumar and others reported in 2010 (10) TNMAC 581, when any person had suffered permanent disability, then it is the duty of the Tribunal to assess
his loss of earning capacity and offer compensation.

15. The Tribunal awarded a sum of Rs.1,67,750/- towards medical bills, but Apollo Hospital produced bills for a sum of Rs.2,49,384/- through Exs.P5, 8, 10 and 12 and therefore, the Tribunal to award at the same without any deduction.

16. The learned counsel for the Insurance Company, 2nd respondent before the Tribunal argued that the Tribunal below not justified in holding that the injured claimant has lost avocation on account of the road traffic accident, there was no termination by the employer to the injured claimant to attract the multiplier formula, the injured voluntarily left the job and it has been culled out from the cross-examination of witness that it was not the employer of the injured claimant terminated his service. Per contra, the injured claimant was voluntarily quit the job. The Tribunal ought to have held that there was no functional disability resulting in the loss of avocation for the injured claimant.

17. The Tribunal ought to have appreciated the judgement of the Supreme Court of India in Rajkumar Vs. Ajay Kumar reported in 2010 (10) TNMAC 581, which mandates that there was no functional disability for injured claimant, resulting in loss of avocation. The Tribunal was not justified in fixing the disability at 60%, ought not to have granted a sum of Rs.27,62,100/- towards loss of learning by calculating the disability at 60%. The appellant objected granting a bonus of Rs.2,70,000/-, Rs.75,000/- for pain and suffering, Rs.50,000/- for transportation.

18. The Tribunal was not justified in its omission to deduct the medical expenses reimbursed by the health policy insurance company through its third-party administrator, and granting of Rs.1,67,750/- towards medical expenditure is on the higher side.

19. Now, this court has to decide the following points for consideration :
(1) whether the compensation awarded by the Tribunal is on the higher side ?
(2) Whether the disability of the claimant was fixed by the Tribunal is proper or not ?

20. Point Nos.1 and 2:

On careful perusal of the entire records, it is seen from the medical records produced by the petitioner to support his claim, Ex.P11 is the important medical certificate issued by the Ganga Medical Centre and Hospital Pvt. Ltd., on 20.01.2016, in which it was mentioned that the patient has no power in his right hand and is not able to use his right hand for his day-to-day activities, except the above part he has no disablement in any part of his body.

21. The claimant claimed 70% disability based on Ex.27 disability certificate issued by the Department of Empowerment of Persons with Disabilities, Ministry of Social Justice empowerment, Government of India, in which it was mentioned that the petitioner has 70% disability, is a case of Locomotor disability, the diagnosis in this case is right side, upper limb brachial plexus, disability in his part of body. However, the above certificate could not be taken into consideration as the petitioner not in a position to explain on what basis it was issued and who assessed the disability. He has not examined any Doctor to prove the disability at 70%. Even as per the above certificate the disability is partial disability and not total permanent disability.

22. On the other hand, the Medical Board consisting of the Chairman and Members of the Joint Director of Health Service assessed permanent disability at 40%. The Medical Board is constituted to assess the disability of the patients who were injured in the motor vehicle accident. The patient who had sustained injuries should appear before the Medical Board and Medical Board consisting of three members, after analysing the entire case records and also examining the patient, issued a certificate. On perusal of the Medical Board certificate it revealed that except restriction in movement on his right hand, he has not suffered any permanent disability.
Therefore, we hold that the disability certificate issued by the Medical Board is proper to assess disability.

23. Ex.P14 is his service certificate showing that he was working in TCP Limited and received a sum of Rs.17,050/- as of 13.10.2015 towards his salary. He voluntarily resigned from the post, as per the evidence adduced by PW2 employer of the petitioner, his evidence reveals that the petitioner was not relieved from service, due to his permanent disability but he himself requested his employer to allocate some other alternative work due to his medical condition for which the company was not agreeable, hence, he resigned from his post and was relieved from his work 13.10.2015. It is admitted by P.W.2 that the petitioner should handle the machines and boiler operation. The petitioner stated that he was not in a position to continue his work. The Medical Board also clearly assessed his disability at 40%. The disability is only partial and fixation of 40% disability is alone, is proper and reasonable and the Tribunal ought not to have fixed 60% disability is not proper. Therefore, we decided to reduce the disability from 60% to 40%.

24. The petitioner-s annual income at the time of accident was Rs.2,04,600/- as per the judgment issued by the Apex court in Pranay Sethi-s case, 50% salary could be added as regards future prospects if a person having permanent employment and below the age of 50 years. The petitioner was having permanent employment at the time of accident, hence, he is entitled to 50% actual salary for future prospects viz., Rs.8,525/-. (Rs.17,050/- x 50/100 = Rs.8,525). For permanent disability Rs.17,050/- + Rs.8,525/- = Rs.25,575 x 12 = Rs.3,06,900 x 15 x 40/100 = Rs.18,41,400/-.

25. The age of the petitioner at the time of the accident is 40 years, as the date of birth is 04.01.1975, and the date of the accident is 13.10.2015, multiplier 15 be applied as he was 40 years at the time of the accident.

26. The Tribunal awarded a bonus income for a sum of Rs.2,70,000/- to the claimant. As far as bonus income is concerned, it is admitted that the company may provide a bonus or may not provide it, bonus is not part of fixed salary. Further, the petitioner resigned from the job, relieved from his service, he is not entitled to get the bonus for the future, the Tribunal without taking into account, awarded bonus income to the claimant, which is not proper. Therefore, this Court is of the view that the claimant is not entitled to get bonus income.

27. As far as compensation in other heads viz., pain and suffering Rs.75,000/-, For lack of convenience and discomfort Rs.10,000/-, Medical expenses Rs.1,67,750/-, (as it is evident that the remaining medical bills were reimbursed) Extra nourishment Rs.10,000/-, Travel expenses Rs.50,000/-, Damages to clothing and articles Rs.2,000/-, loss of income Rs.10,000/-, Attendant expenses
Rs.10,000/-, we confirm the order of the Tribunal as awarded. The point Nos.1 and 2 are answered accordingly.

27. Given the above, we modify the award as follows :

Category Amount (Rs.)
Permanent disability 1,841,400
Pain and sufferings 75,000
For lack of convenience and discomfort 10,000
Medical expenses 167,750
Future Medical expenses 50,000
Extra nourishment 10,000
Attendant expenses 10,000
Travel expenses 50,000
Damages to clothing 2,000
loss of income 10,000
Total 2,226,150

28. In the result, the Civil Miscellaneous Appeal in C.M.A.(MD)No.856 of 2021 is dismissed. No costs.

29. In the result, the Civil Miscellaneous Appeal in C.M.A.(MD)No.772 of 2021 is allowed. The award passed by the trial Court is
modified and the Appellant is directed to pay a sum of Rs.22,26,150/- to the 1st respondent/claimant along with interest at the rate of 7.5% per annum from the date of petition till the date of deposit of the amount, less the amount if already deposited to the credit of M.C.O.P.No.126/2016 on the file of the Special Subordinate Court, Motor Accident Claims Tribunal, Trichy, within four weeks from the date of receipt of a copy of this order. On such deposit, the 1st respondent/claimant is permitted to withdraw the same, less the amount already withdrawn, if any, together with proportionate interest and costs, by filing an appropriate petition before the Tribunal. No costs. Consequently, connected miscellaneous petition is closed.