Madras High Court
Hdfc Ergo General Insurance ... vs K.Jayaprakash on 25 November, 2021
CMA No.123 of 2020
and CMP No.841 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
Civil Miscellaneous Appeal No.123 of 2020
and CMP No.841 of 2020
HDFC ERGO General Insurance Company Ltd.,
New No.528, Old No.559, 2nd Floor,
Anna Salai, Teynampet, Chennai 600 018. ... Appellant
Vs.
1. K.Jayaprakash
2. Arumugam
3. A.Shankar ... Respondents
Civil Miscellaneous Appeals filed under Section 173 of Motor Vehicles Act,
1988, to set aside the decree and judgment dated 30.04.2019 passed in
MCOP No.1096 of 2016 on the file of MACT – Special Subordinate Judge,
Coimbatore.
1/10
https://www.mhc.tn.gov.in/judis
CMA No.123 of 2020
and CMP No.841 of 2020
For Appellant : Mr.N. Somasundaar
for Mr.Ma.P.Thangavel
For Respondents : Mr.C.Veera Raghavan, for R1
RR 2 & 3 notice dispensed with
JUDGMENT
The challenge in this Appeal is to the award of the Motor Accident
Claims Tribunal, Coimbatore, made in MCOP No.1096 of 2016, where the
claimant/first respondent was favoured with an award of Rs.10,50,307/- for
the injuries suffered by him in a motor accident that occurred on 14.05.2016.
2. The claimant sought for a compensation of Rs.20,00,000/- for
the injuries suffered by him. He claimed that he was aged 35 years at the time
of the accident. He was running a business and earning a sum of Rs.18,000/-
per month.
3. The injuries suffered by him are fractures in the right leg, right
foot, skin avulsion, fracture in clavicle and right scapula, neck fracture with
https://www.mhc.tn.gov.in/judis
CMA No.123 of 2020
and CMP No.841 of 2020
right arm contusion and multiple body injuries. It is claimed that he was
treated at the Government Hospital, Mettupalayam for three days between
14.05.2016 and 17.05.2016. Thereafter he was treated at Ganga Medical
Centre and Hospital, Coimbatore, between 17.05.2016 and 20.05.2016. The
claimant would also contend that he was incapacitated due to the accident
which led to him losing his regular income for a considerably long period.
4. The Insurance Company resisted the claim contending that the
driver of the insured vehicle did not possess a valid driving license. The
insured had allowed the vehicle to be driven by an unauthorised person with
knowledge of the disqualification suffered by him and therefore the Company
cannot be made liable. The Company also contended that the claimant himself
is guilty of contributory negligence and also claimed that the compensation
claimed is on the higher side.
5. The Tribunal on a consideration of the evidence on record
concluded that the accident happened due to the negligence of the driver of
the Maxicab bearing Reg. No.TN 03B 7644, the claim that the driver was not
https://www.mhc.tn.gov.in/judis
CMA No.123 of 2020
and CMP No.841 of 2020
licensed was rejected and it was held that the Insurance Company is liable to
pay the compensation. On the quantum, the Tribunal awarded the following
amounts under various heads:
S.No. Heads Amount (Rs.)
1. Compensation for grievous injuries 75,000/-
2. Loss of Income 60,000/-
3. Medical Bills 90,307/-
4. Loss of amenities 3,00,000/-
5. Pain and Sufferings 5,00,000/-
6. Transportation to Hospital 10,000/-
7. Extra Nourishment 10,000/-
8. Damage to clothing and articles 5,000/-
TOTAL 10,50,307/-
6. I have heard Mr.N.Somasundaar, learned counsel appearing for
the appellant and Mr.C.Veera Raghavan, learned counsel appearing for the
first respondent. The respondents 2 and 3 remained ex-parte before the
Tribunal and hence notice to them in this appeal is dispensed with.
7. Mr.N.Somasundaar, learned counsel appearing for the Insurance
https://www.mhc.tn.gov.in/judis
CMA No.123 of 2020
and CMP No.841 of 2020
Company would submit that the award of compensation of Rs.3,00,000/-
under the head of loss of amenities and Rs.5,00,000/- under the head of pain
and sufferings is exorbitant and the same will have to be reduced. He would
also point out that the Tribunal has awarded a sum of Rs.60,000/- towards
loss of income and the award under that head does not disclose any basis.
8. Contending contra Mr.C.Veera Raghavan, learned counsel
appearing for the claimant would submit that though the amounts awarded
under the heads of loss of amenities and pain and sufferings appear to be on
the higher side, the overall award is just and reasonable, considering the
injuries suffered by the claimant.
9. I have considered the rival submissions.
10. Admittedly, the claimant has not been referred to Medical
Board. The Tribunal has not found that the claimant has suffered any
permanent disability no Doctor has been examined. Therefore, the
compensation has to be worked out only for the injuries suffered by the
https://www.mhc.tn.gov.in/judis
CMA No.123 of 2020
and CMP No.841 of 2020
claimant. In the absence of any disability, the Tribunal has awarded
Rs.75,000/- for grievous injuries and Rs.60,000/- for loss of income, which I
do not think could be said to be on the higher side, considering the nature of
injuries suffered by him and the fact that the claimant was running his own
business. The various fractures suffered by him would have definitely
disabled him from concentrating on the business for a considerable period of
time, which the Tribunal has fixed at four months. I do not see any reason to
interfere with the said discretion exercised by the Tribunal.
11. The Tribunal has granted a sum of Rs.90,307/- towards
Medical expenses based on Medical Bills that were produced. The amounts
awarded under the heads for transportation to Hospital, Extra Nourishment,
damage to clothing and articles etc. are also reasonable. Coming to the
award under the two heads namely loss of amenities and pain and sufferings,
the award of Rs.3,00,000/- and Rs.5,00,000 under those two heads is really
on the higher side. The learned counsel for the Insurance Company would
draw my attention to the judgment of the Hon’ble Supreme Court in
Rajkumar v. Ajay Kumar, reported in 2010 (2) TNMAC 581, wherein the
https://www.mhc.tn.gov.in/judis
CMA No.123 of 2020
and CMP No.841 of 2020
Hon’ble Supreme Court has held that compensation under the head of loss of
amenities could be granted only on evidence and that too in cases where it is
the case of a serious injury.
12. As rightly pointed out by Mr.N.Somasundaar, learned counsel
appearing for the petitioner, there is no medical or corroborating evidence
available to show that the claimant had suffered any kind of disfigurement or
disability which would affect his marriage prospects or which would have a
lasting impact throughout his life. In the absence of such evidence, as pointed
out by the Hon’ble Supreme Court in Rajkumar v. Ajay Kumar, award of
compensation under the head of loss of amenities itself may not be just. I
also find that award of Rs.5,00,000/- towards pain and suffering for injury
which required hospitalization only for about six days is exorbitant. In the
light of the above discussion, the awards under these two heads will have to
be necessarily reduced. In view of the categorical pronouncement of the
Hon’ble Supreme Court and in the absence of any evidence regarding loss of
amenities, I am of the opinion that the entire award under that head will have
to be set aside.
https://www.mhc.tn.gov.in/judis
CMA No.123 of 2020
and CMP No.841 of 2020
13. As regards the award under the head of pain and suffering,
though the hospitalisation was only for six days, the nature of the injuries
namely several fractures suffered would have caused quite a bit of pain and
suffering to the claimant. Considering his age and the fact that he was
carrying on business, I am of the opinion that the award under the head of
pain and suffering could be fixed at Rs.1,50,000/-.
14. In light of the above the award of the Tribunal requires
modification and the same is modified as follows:
S.No. Heads Amount (Rs.)
1. Compensation for grievous injuries 75,000/-
2. Loss of Income 60,000/-
3. Medical Bills 90,307/-
4 Pain and Sufferings 1,50,000/-
5 Transportation to Hospital 10,000/-
6 Extra Nourishment 10,000/-
7. Damage to clothing and articles 5,000/-
TOTAL 4,00,307/-
https://www.mhc.tn.gov.in/judis
CMA No.123 of 2020
and CMP No.841 of 2020
15. In the light of the above, the appeal is partly allowed, the
award of the Tribunal is modified, the claimant will be entitled to a sum of
Rs.4,00,307/- rounded off to Rs.4,00,000/-. The Insurance Company is
directed to deposit the award amount as per the modified award, less the
amount, if any, already deposited, with appropriate interest as granted by the
Tribunal to the credit of MCOP No.1096 of 2016, within a period of six (6)
weeks from the date of receipt of a copy of the judgment. On such deposit,
the claimant is permitted to withdraw the same. There shall be no order as to
costs.
25.11.2021
jv
Index:Yes/No
Internet:Yes
speaking order/Non-speaking order
https://www.mhc.tn.gov.in/judis
CMA No.123 of 2020
and CMP No.841 of 2020
R.SUBRAMANIAN, J.
jv
To
1. The The Special Subordinate Judge,
Motor Accidents Claims Tribunal,
Coimbatore.
2. The Section Officer,
V.R.Section,
High Court of Madras.
Civil Miscellaneous Appeal No.123 of 2020
and CMP No.841 of 2020
25.11.2021
https://www.mhc.tn.gov.in/judis
