Madras High Court
The Hdfc Ergo General Insurance vs Sathishkumar .... 1St on 21 June, 2022
C.M.A.No.2134 of 2021
and C.M.A.No.1743 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 21.06.2022
CORAM
THE HONOURABLE Ms.JUSTICE P.T.ASHA
C.M.A.No.2134 of 2021
and
C.M.A.No.1743 of 2020
and
CMP.No.11784 of 2021 in C.M.A.No.2134 of 2021
1.The HDFC ERGO General Insurance
Company Ltd.,
First Floor, 165/166, Reclamation Backbay
H.T.Parekh Marg, Church Gate
Mumbai
Maharastra – 400 020.
Having its Branch Office at :
Empire Arcade, No.356/1
Omalur Main Road, Opp. New Bus Stand
Salem, Tamil Nadu – 636 004. ... Appellant in CMA.No.2134/2021
2.Sathishkumar ... Appellant in CMA.No.1743/2020
- Vs.-
1.Sathishkumar .... 1st Respondent in CMA.No.2134/2021
2.Dhanvanth .... 2nd Respondent in CMA.No.2134/2021
.... 1st Respondent in CMA.No.1743/2020
https://www.mhc.tn.gov.in/judis
C.M.A.No.2134 of 2021
and C.M.A.No.1743 of 2020
3.Senthilkumar .... 3rd Respondent in CMA.No.2134/2021
.... 2nd Respondent in CMA.No.1743/2020
4.The HDFC ERGO General Insurance Company Ltd.,
First Floor, 165/166, Reclamation Backbay
H.T.Parekh Marg, Church Gate
Mumbai
Maharastra – 400 020.
Branch Office at : Empire Arcade, No.356/1
Omalur Main Road, Opp. New Bus Stand
Salem, Tamil Nadu – 636 004. ... 2nd Respondent in CMA.No.1743/2020
Prayer in CMA.No.2134 of 2021: Civil Miscellaneous Appeal filed under
Section 173 of the Motor Vehicles Act, 1988, to set aside the decretal order
and award dated 27.01.2020 passed in M.C.O.P.No.1175 of 2018 by the
learned Motor Accident Claims Tribunal (Special Sub-ordinate Judge-II),
Salem, and to dismiss the claim and allow the CMA.
Prayer in CMA.No.1743 of 2020: Civil Miscellaneous Appeal filed under
Section 173 of the Motor Vehicles Act, 1988, to allow the above civil
miscellaneous appeal and enhance the award in the judgment and decree dated
27.01.2020 made in M.A.C.T.O.P.No.1175 of 2018 on the file of the Motor
Vehicle Accident Claims Tribunal / Special Subordinate Judge No.II, Salem.
In CMA.No.2134 of 2021 :
For Appellant : Mr.N.Somasundaar
For Respondents : Mr.C.Paraneedharan [R1]
https://www.mhc.tn.gov.in/judis
C.M.A.No.2134 of 2021
and C.M.A.No.1743 of 2020
In CMA.No.1743 of 2020 :
For Appellant : Mr.C.Paraneetharan
For Respondents : Mr.N.Somasundaar [R3]
R1 & R2 - Not ready in notice
COMMON JUDGMENT
Both the insurance company as well as the claimant before the Tribunal
are aggrieved by the judgment passed by the Special Subordinate Judge-II,
Salem in M.C.O.P.No.1175 of 2018.
2. C.M.A.No.1743 of 2020 is filed by the claimant seeking
enhancement of the compensation awarded by the Tribunal and
C.M.A.No.2134 of 2021 is filed by the Insurance Company seeking reduction
of the compensation as the Tribunal has adopted a multiplier method for
arriving at a compensation under the head of "Loss of disability", which is not
a functional disability.
3. The parties are referred to in the same rank as before the Tribunal.
https://www.mhc.tn.gov.in/judis
C.M.A.No.2134 of 2021
and C.M.A.No.1743 of 2020
4. The claimant has filed the above M.C.O.P. seeking compensation
for the injuries sustained by him in a road accident on 24.04.2018. It is the
case of the claimant that he is a Trainee Doctor with Annapoorna Medical
College, Salem, earning a monthly income of Rs.25,000/-. On 24.04.2018 at
about 04.00 p.m he was travelling in his Royal Enfield Bike, bearing
Registration No.TN 90 C 4528 on the Seeragapadi Salem Main Road. When
he was opposite the HDFC ATM, a car bearing Registration No.TN 30 BE
6333 belonging to the second respondent and insured with the third
respondent-Insurance Company, which was travelling in a rash and negligent
manner in the same direction, suddenly swerved to the left, as a result of
which, the claimant had sustained grievous injury. Therefore, the claimant had
filed the above claim petition seeking compensation of a sum of Rs.15,00,000/-
5. The first respondent-driver remained ex-parte and the second
respondent-owner had not filed a counter. The third respondent-Insurance
Company had filed a counter denying the accident, quantum, claim and also
put the claimant to proof that the driver of the car had a valid driving licence.
https://www.mhc.tn.gov.in/judis
C.M.A.No.2134 of 2021
and C.M.A.No.1743 of 2020
6. The Tribunal, on considering the evidence, held that the accident
was only on account of the negligence of the first respondent and therefore, the
respondents 2 and 3 are liable to compensate the claimant. The Tribunal, after
observing that the claimant, who claimed to be a training Doctor, had not
produced any proof to show the same, proceeded to fix a notional income at
Rs.20,000/-. Thereafter, the Tribunal, relying upon the disability certificate
issued by the Medical Board, awarded a sum of Rs. 6,80,369/-.
7. Aggrieved by the fact that after observing that the claimant was
only entitled to compensation for the disability under the percentage method,
the Tribunal has awarded a sum of Rs.1,00,000/- under the head of "loss of
amenities"" and a sum of Rs.1,20,000/- towards the "loss of income" for 6
months.
8. Learned counsel appearing for the appellant would submit that in
the judgment reported in 2011 ACJ 1[Raj Kumar -vs- Ajay Kumar and
another], the Hon'ble Supreme Court has held that the loss of amenities would
be awarded only in the case of serious injuries, which is corroborated by the
medical evidence. In the instant case, the Tribunal itself come to the
https://www.mhc.tn.gov.in/judis
C.M.A.No.2134 of 2021
and C.M.A.No.1743 of 2020
conclusion that that the injuries were not serious in nature and has awarded
compensation under the head of "compensation for disability" on a percentage
basis. Therefore, he would submit the amount under the head of "loss of
amenities" is to be set aside. That apart, the claimant has not produced any
proof to show that he is a Doctor and that the award of the Tribunal fixing a
notional income of Rs.20,000/- per month is erroneous and therefore, the
amount under the head of "Loss of Income" is also to be set aside.
9. Per contra, the learned counsel appearing for the appellant in
C.M.A.No.1743 of 2020 would submit that the medical board has assessed the
disability at 40% and the report would state that he has lost his sensation in the
ring and little finger and he is unable to carry on his routine activities.
Therefore, he would submit that the Tribunal ought to have adopted a
multiplier method.
10. The issue revolves around the nature of injuries sustained by the
claimant and whether the injury has resulted in a functional disability to him
and loss of earning capacity. The Discharge Summary issued by the Dharan
Hospital, where the claimant has undergone his initial treatment is marked as
https://www.mhc.tn.gov.in/judis
C.M.A.No.2134 of 2021
and C.M.A.No.1743 of 2020
Ex.P7. The report would indicate that there is a crush injury to the left ring
finger, lacerated deep wound and abrasion over left lumber area. The Hospital
has adopted the following procedure:
Procedure:
1. Wound debridement K wire fixation.
2. Debridement / abdominal flap corner
3. Flap division with inset
11. The claimant has been discharged within a day. Thereafter, after
the filing of the petition, the claimant has been referred to the Medical Board.
A perusal of the disability certificate-Ex C1 would show that the Medical
Board has not taken into consideration the Discharge Summary-Ex.P7 and the
Wound Certificate-ExP3 issued by the Dharan Hospital on 24.04.2018. The
Medical Board has examined the claimant on 31.12.2019 nearly a year and a
half after the surgery has been successfully effected. The Board has not even
taken an X-Ray and has simply relied on the discharge summary and thereafter
proceeded to pass the clinical notings. Therefore, this certificate cannot be
relied upon to state that the injury sustained is of a serious in nature and has
resulted in a functional disability to the claimant. Therefore, the adoption of
https://www.mhc.tn.gov.in/judis
C.M.A.No.2134 of 2021
and C.M.A.No.1743 of 2020
percentage method by the Tribunal is in order. As rightly pointed out by the
learned counsel for the appellant-Insurance Company in C.M.A.No.2134 of
2021, namely, the Insurance Company, a sum of Rs.1,00,000/- under the head
of "loss of Amenities"", especially, when the injuries are not of serious nature
has to be set aside. The petitioner, who claims to be a Doctor, has not
produced a single shred of evidence to substantiate the same. Therefore, the
adoption of a monthly income of Rs.20,000/- is on the higher side and the same
has been reduced to Rs.10,000/-. Therefore, the claimant will only be entitled
to a sum of Rs.60,000/-. under the head of "Loss of Income".
12. The learned counsel for the claimant would submit that the
accident is of the year 2018 and the adoption of a sum of Rs.3,000/- per
percentage of disability is on the lower side and the appropriate income to be
adopted is Rs.5,000/-, which has not been seriously rebutted by the learned
counsel for the insurance Company. Therefore, the compensation under the
head of "loss of disability" is enhanced to a sum of Rs.5,000 x 40 =
Rs.2,00,000. Therefore, the re-worked compensation would be as follows:-
https://www.mhc.tn.gov.in/judis
C.M.A.No.2134 of 2021
and C.M.A.No.1743 of 2020
Heads Amount by the Amount Awarded
Tribunal by this Court
in Rs. in Rs.
Loss of Disability 1,20,000 2,00,000
(3,000 x 40%) (5,000x 40%)
(enhanced)
Pain and Sufferings 50,000 50,000
Loss of Amenities 1,00,000 NIL
Medical expenses 1,94,369 1,94,369
Loss of Income 1,20,000 60,000
(10,000 x 6) (Reduced)
Transportation Charges 25,000 25,000
Extra Nourishment Charges 50,000 50,000
Attendant Charges 20,000 20,000
Damages to Clothing and 1,000 1,000
Article
Total 6,80,369 6,00,369
13. These appeals are partly allowed and the impugned Award of the
Tribunal is modified, reducing the compensation amount from Rs.6,80,369.00
to Rs.6,00369.00. The appellant in C.M.A.No.2134 of 2021-Insurance
Company is directed to deposit the said amount to the credit of
M.C.O.P.No.1175 of 2018 along with interest at the rate of 7.5% per annum
from the date of claim petition till the date of deposit and costs as awarded by
the Tribunal, less, the amount, if any already deposited, within a period of six
weeks from the date of receipt of a copy of this judgment. On such deposit
https://www.mhc.tn.gov.in/judis
C.M.A.No.2134 of 2021
and C.M.A.No.1743 of 2020
being made, the appellant in C.M.A.No.1743 of 2020 / claimant is permitted to
withdraw the award amount, along with accrued interest and costs as awarded
by the Tribunal, less, the amount, if any already withdrawn, by filing necessary
application before the Tribunal. The claimant is directed to pay the Court fee
for the compensation amount, if required. The Tribunal below shall not
disburse the award amount till such time as the certified copy showing proof of
payment of Court fee has been produced by the claimants. In other respects,
the Award of the Tribunal is hereby confirmed. There shall be no order as to
costs in the present appeal. Consequently, connected miscellaneous petition is
closed.
21.06.2022
Index:Yes/No
Speaking Order : Yes/No
srn
To
1. The Special Sub Judge II, (Motor Accident Claims Tribunal), Salem
2.The Section Officer, V.R.Section, High Court of Madras, Chennai.
https://www.mhc.tn.gov.in/judis
C.M.A.No.2134 of 2021
and C.M.A.No.1743 of 2020
P.T.ASHA.J
srn
C.M.A.No.2134 of 2021
and
C.M.A.No.1743 of 2020
21.06.2022
https://www.mhc.tn.gov.in/judis
