Madras High Court
Hdfc Ergo General Insurance Co. ... vs G.Sivaraj on 1 October, 2021
C.M.A.No.2817 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
C.M.A. No. 2817 of 2021
and
C.M.P.No.16113 of 2021
HDFC ERGO General Insurance Co. Ltd.,
RR Towers II, 2nd Floor, No.94/95,
T.V.K. Industrial Estate, Guindy,
Chennai - 600 032. ... Appellant
(Accepted the cause title vide order of this Court dated 20.12.2020 made in
C.M.P.No.27547 of 2019 in C.M.A.SR.No.107156 of 2019)
Vs
1. G.Sivaraj.
2. V.Sivadasan
3. Sri Venkateswara Carbonic Gases Pvt. Ltd.,
At No. 9/84, Lajapathirai Street,
Srinivasapuram, Coimbatore - 641 009. ... Respondents
1/10
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2817 of 2021
Prayer: Civil Miscellaneous Appeal filed under Section 173 of Motor
Vehicles Act, 1988, against the award and decree dated 24.10.2018 made in
M.C.O.P.No.1983 of 2014 on the file of the Motor Accidents Claims
Tribunal, Coimbatore.
For Appellant : Mr. S.Arun Kumar
For 1st Respondent : Mr.G.Vanjinathan
for Mr. T.Maharajan
JUDGMENT
This Civil Miscellaneous Appeal is directed against the
judgment and award passed by the learned Special Subordinate Judge,
Motor Accidents Claims Tribunal, Coimbatore, in M.C.O.P.No.1983 of
2014.
2. This is a case of injury. The first respondent herein filed a
claim petition seeking compensation of Rs.60,00,000 /- (Rupees Sixty lakhs
only) against the appellant in M.C.O.P.No.1983 of 2014. It is the case of the
claimant that on 17.08.2014, when he was travelling in the the Tamil Nadu
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C.M.A.No.2817 of 2021
State Transport Corporation bus bearing registration No. TN 38 N 2288
from his residence to his work place at Coimbatore, a tanker lorry bearing
registration number TN 38 BD 1399, which was driven by the driver in a
negligent manner, rammed the TNSTC bus. In the impact, he sustained
grievous injuries. Immediately he was taken to Ganga Medical Centre and
Hospital Pvt. Ltd., Coimbatore, where he take treatment as an in-patient
from 17.08.2014 to 22.09.2014.
3. The claimant/1st respondent further stated that he completed
his M.A and M.Phil and he was working as Manager in Born Babies
Sivasakthi Baby Garments Pvt. Ltd., Coimbatore and he was earning
Rs.30,000/- (Rupees thirty thousand only) per mensem.
4.The claim petition was resisted by the appellant interalia
contending that the driver of the bus was responsible for the accident, hence
no liability can be fixed on the insurance company. It is further stated that
the claim is exorbitant and fanciful.
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C.M.A.No.2817 of 2021
5.Before the Tribunal, in order to establish the claimant's case,
the claimant was examined as PW1 and S.P.Chandrasekar was examined as
P.W.2 and Exs.P1 to P19 were marked. On behalf of the Insurance
Company, R.W.1 was examined and Exs.R1 & R2 were marked.
6.The claimant was a witness to the accident and no contra
evidence was produced on behalf of the appellant. The Tribunal relying
upon the evidence of P.W.1 and the documents referred above, has rightly
came to the conclusion that the driver of the lorry was responsible for the
accident.
7.In so far as quantum is concerned, the claimant has stated that
he was 38 years old, at the time of accident. He further stated that he was
employed as Manager in Born Babies Sivasakthi Baby Garments Pvt. Ltd.,
Coimbatore and he was paid Rs.20,000/- (Rupees twenty thousand only) per
mensem. In support of his claim towards his monthly salary, he marked the
salary certificate-Ex.P.9 for the month of March 2013. It is seen that for the
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C.M.A.No.2817 of 2021
next succeeding month he was paid only Rs.15,500/- (Rupees fifteen
thousand five hundred only). He also examined P.W.2 to prove that he was
working part time in Sree Vedhathri Fashions at Tiruppur, for which he was
paid Rs.12,500/- (Rupees twelve thousand five hundred only). Ex.P.18 is the
salary certificate.
8.The Tribunal, after considering the oral and documentary
evidence, held that the 2nd respondent was responsible for the accident and
awarded compensation of Rs.35,88,140/-.
9.Assailing the said finding, the appellant/Insurance Company
has come up with this appeal.
10.The learned counsel for the appellant, Mr.S.Arunkumar
submitted that in the claim petition there is absolutely no pleading that the
claimant was working in two different companies. Only during the trial,
P.W.2 was examined to show that the claimant is working in another
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C.M.A.No.2817 of 2021
company, thereby he was earning Rs.12,500/- (Rupees twelve thousand five
hundred only) and hence the evidence of the PW2 and ExP.18 would not
improve the case of the claimant.
11.Learned counsel appearing for the claimant supported and
justified the conclusion reached by the tribunal.
12.We find force in the submission of the learned counsel for
the appellant. As rightly pointed out by him, the claimant has not mentioned
about his employment in two different companies, in the claim petition as
well as in the proof affidavit. Therefore, it would be highly unsafe to rely on
the evidence of P.W.2 and Ex.P.18 to determine the salary. The Tribunal has
taken his monthly income as Rs.25,000/- based on the testimony of P.Ws.1
and 2 and Exs.P.9 and 18. Considering the age and qualification of the
claimant and the employment in Born Babies Sivasakthi Baby Garments
Pvt. Ltd., Coimbatore, this Court fixes the monthly salary of the claimant as
Rs.15,000/- (Rupees fifteen thousand only). Adding 40% towards his future
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C.M.A.No.2817 of 2021
prospectus, the total income comes to Rs.21,000/- (Rupees twenty one
thousand only) per mensem.
13.The claimant produced Ex.C.1-Disability Certificate,
wherein it has been stated that the claimant has been suffered 67 % partial
and permanent disability. Though it is contended by the learned counsel for
the appellant, that the claimant has not produced any material to show that
he lost his employment. Considering the injuries sustained by the claimant
and nature of employment, it would be appropriate to take the disability as
50%, by applying the multiple of 15, the loss of earning capacity is arrived
at Rs.18,90,000/- (Rupees eighteen lakhs ninety thousand only) (21000 x
12 x 15 x 50/100).
14.The Tribunal has awarded Rs.3,48,000/- towards medical
expenses based on Ex.P.12; Rs.2,00,000/- towards pain and sufferings;
Rs.10,000/- for transportation to hospital; Rs.10,000/- for extra nourishment
and Rs.5,000/- towards damage to the clothes. But no amount has been
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C.M.A.No.2817 of 2021
awarded for the attendant charges and loss of amenities . Hence Rs.50,000/-
is awarded for attendant charges and Rs.25,000/- towards loss of amenities.
15.Accordingly, the compensation awarded by the Tribunal to
the claimant is re-quantified as follows:-
Heads Amount Amount Award
awarded by the awarded by confirmed/
Tribunal this Court enhanced/
reduced/
(Rs.) (Rs.) granted
Future loss of earning Rs.30,15,000/- Rs.18,90,000/- reduced
capacity
Medical Bills Rs.3,48,140/- Rs.3,48,140/- confirmed
Pain and Suffering Rs.2,00,000/- Rs.2,00,000/- confirmed
Transportation to Rs.10,000/- Rs.10,000/- confirmed
Hospital
Extra Nourishment Rs.10,000/- Rs.10,000/- confirmed
Damage to Clothing Rs.5,000/- Rs.5,000/- confirmed
Attendant charges - Rs.50,000/- granted
Loss of amenities - Rs.25,000/- granted
Total Rs.35,88,140/- Rs.25,38,140/- reduced
16. In fine, this civil miscellaneous appeal is partly allowed by
reducing the award amount from Rs.35,88,140/- to Rs.25,38,140/- (Rupees
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C.M.A.No.2817 of 2021
twenty five lakhs thirty eight thousand one hundred and fourty only). The
appellant/Insurance Company is directed to deposit the above modified
award amount with interest at the rate of 7.5 % p.a., from the date of the
claim petition till the date of its realization, less the amount already
deposited if any, within a period of eight weeks from the date of receipt of a
copy of this order. On such deposit, the claimant is permitted to withdraw
the entire amount. No costs. Consequently connected miscellaneous
petition is closed.
(M.K.K.S.J.,) (V.S.G.J.,)
01.10.2021
Index:Yes/No
Internet:Yes/No
Speaking Order: Yes/No
ham/jer
To
1. The Motor Accident Claims Tribunal,
Special Subordinate Court, Coimbatore.
2. The Section Officer,
V.R.Section, High Court, Madras – 104.
https://www.mhc.tn.gov.in/judis/
C.M.A.No.2817 of 2021
K.KALYANASUNDARAM, J.
and
V.SIVAGNANAM, J.
Jer
C.M.A. No. 2817 of 2021
and
C.M.P.No.16113 of 2021
01.10.2021
https://www.mhc.tn.gov.in/judis/
