Madras High Court
Hdfc Ergo General Insurance ... vs Venkidusamy on 29 January, 2021
C.M.A.No.58 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 29.01.2021
Coram:
THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN
C.M.A.No.58 of 2017
HDFC Ergo General Insurance Company Limited,
2nd Floor, Global Centre,
Thrissur District, Kerala. .. Appellant
/versus/
1.Venkidusamy
2.Jofi
3.Ajo Jose ..Respondents
(3rd respondent exparte in lower Court)
Prayer: Civil Miscellaneous Appeal has been filed under Section 173 of the
Motor Vehicles Act, 1988, against the judgment and decree in M.C.O.P.No.1347
of 2013 dated 28.04.2016 on the file of the Motor Accident Claims Tribunal, II
Additional District Court, Tiruppur.
For Appellant :Mr.E.Rajadurai for
M/s M.B.Gopalan Associates
For Respondents :Mr.Ma.Pa.Thangavel for R1
Mr.A.Charles Darwin for R2
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1/7
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C.M.A.No.58 of 2017
JUDGMENT
This appeal filed by the Insurance Company being aggrieved by the liability
fixed on the Insurance Company.
2.Brief facts of the case is that, on 27.09.2012, at about 9.00 p.m., while the
claimant was driving his Maruthi car bearing Reg.No.TN 37-P 3326 at the left
extreme of Kovai to Sakthi the road, a car bearing Reg.No.KL-08-AT-4175 came
in a rash and negligent manner and dashed against the claimant's car. In the said
accident, the claimant sustained grievous injury. He was taken to Coimbatore
Medical College Hospital for first aid. He has sustained severe injury including
fracture shaft of femur right leading to closed reduction and internal fixation. At
the time of the accident, the claimant was working as Driver in Tamil Nadu State
Transport Corporation. Claiming that due to the accident, he has lost his entire
earning power and cannot go to work claim petition for Rs.12,00,000/-filed for
loss of income and earning capacity.
3.The Insurance Company filed counter stating that the accident occurred
due to the negligence of the claimant. First Information Report was registered
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C.M.A.No.58 of 2017
against the claimant for causing accident. While so, being a tortfeasor the claimant
is not entitled for any compensation. Further, the quantum of compensation
claimed also is exorbitant. Before the Tribunal, the claimant and two other
witnesses were examined. In support of the claimant, 7 exhibits were marked. On
the side of the defence, one witness was examined. The Tribunal has considered
the disability certificate issued by PW-2 and has applied multiplier for computing
loss of earning capacity. The Tribunal has awarded a sum of Rs.7,19,713/- with
interest at the rate of 7.5% p.a, from the date of petition till the date of realisation.
4.In this appeal, the learned counsel appearing for the appellant submitted
that when the First Information Report which is marked as Ex.P1 clearly attributes
the negligence on the part of the claimant, the Tribunal ought not to have awarded
any compensation to the claimant and ought to have exonerated the insurance
company from paying any compensation. The learned counsel appearing for the
appellant further submitted that even assuming there was any negligence on the
part of the driver of the vehicle insured under them, the contribution of the
claimant should have been taken note of and further the nature of injury sustained
by the claimant has not caused any functional disability to him. Therefore,
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C.M.A.No.58 of 2017
application of multiplier method is not required. Admittedly, the claimant
continues his employment as driver in the corporation. There is no loss of income
and the injury sustained by him are not total disability where the multiplier could
be applied. Further, the compensation awarded under other non-conventional
heads like pain and suffering; transportation; and extra nourishment are also very
exorbitant and excessive.
5.This Court, on perusal of the records, particularly disability certificate
Ex.P6, First Information Report Ex.P1 and deposition of PW-1 is of the view that
mere closure of First Information Report due to delay will not lead to inference
that the traffic offender is an innocent person and entitled to claim compensation
for his own wrong. PW-3 Gopal who has deposed that he was present at the time
of accident and saw the car bearing Reg.No.KL 08 AT 4475 coming rash and
negligently is contrary to the contention of the First Information Report. In any
event, as pointed out by the learned counsel appearing for the appellant, without
contribution of the claimant, the accident could not have occurred. Also, this
Court is convinced that the multiplier applied by the Tribunal is unwarranted in
this case, since the injured person neither sustained total disability or real loss of
earning capacity.
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C.M.A.No.58 of 2017
6.As per the disability certificate, he has sustained 39.94% of permanent
disability. The said disability has not caused any impediment to his avocation as
driver and to his income/earning capacity. The accident occurred on 27.09.2012.
The claimant has produced his pay certificate dated 29.09.2014 (i.e) nearly two
years after the accident wherein his avocation as Special Grade Driver is
mentioned and no loss of income reflected. Hence, this appeal is partly allowed
by modifying the quantum of compensation as below:-
Sl. Particulars Award passed Award passed Enhanced/
No. by the Tribunal by this Court Reduced/
(Rs.) (Rs.) Confirmed/
Awarded
1. Loss of income 5,14,800-00 1,20,000-00 Reduced
(40%x3000)
2. Medical expenses 64,913-00 64,913-00 Confirmed
3. Pain and suffering 50,000-00 25,000-00 Reduced
4. Extra Nourishment 40,000-00 20,000-00 Reduced
5. Transportation 10,000-00 10,000-00 Confirmed
6. Attender charges 15,000-00 15,000-00 Confirmed
7. Loss of amenities 25,000-00 25,000-00 Confirmed
Total 7,19,713-00 2,79,913-00 Reduced
rounded off rounded off
Rs.7,00,000-00 Rs.2,80,000-00
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C.M.A.No.58 of 2017
7.The award of the Tribunal is modified and scaled down from
Rs.7,19,713/- to Rs.2,80,000/- with interest at the rate of 7.5% from the date of
petition till the date of deposit.
8.On perusal of the records, the appellant/Insurance company had already
deposited the entire award of the Tribunal with interest and costs, as per the order
of this Court in C.M.P.No.540 of 2017 in C.M.A.No.58 of 2017, dated
02.02.2017. Therefore, the claimant/1st respondent is permitted to withdraw the
modified award of this Court, (less the amount already withdrawn, if any). The
appellant/Insurance Company is permitted to withdraw the excess amount, less the
modified award amount.
9.In the result, this Civil Miscellaneous Appeal is partly allowed. No
order as to costs.
29.01.2021
Index:yes
ari
To:
The Motor Accident Claims Tribunal,
II Additional District Court, Tiruppur.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.58 of 2017
DR.G.JAYACHANDRAN,J.
ari
delivery judgment made in
C.M.A.No.58 of 2017
29.01.2021
https://www.mhc.tn.gov.in/judis/
