HDFC ERGO General Insurance Co. Ltd. v. Dr. Rajan S/o. Damodharan

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Murali Purushothaman
Judgment Date: 2022-02-25
Court Decision / Holding: MACA No. 3045 of 2016 is partly allowed. The claimant is awarded Rs. 18,61,334/- with 9% interest from the date of petition till realisation and proportionate costs. The insurer is directed to deposit the amount with interest and costs after deducting sums already paid within two months of receiving a copy of the judgment. The cross objection filed by the claimant is dismissed.
Final Disposition: Partly Allowed

Parties to the Case

Appellants / Petitioners

HDFC ERGO General Insurance Co. Ltd., Capitol Centre, 2E MG Road, Thiruvananthapuram, represented by its Manager (Legal)

Respondents

Dr. Rajan S/o. Damodharan, Kalpaka, Karuvatta, Adoor P.O., Pathanamthitta District-691523

Legal Representation & Advocates

Counsels for Petitioners

• Sri George Cherian (Sr.)
• Smt. Latha Susan Cherian
• Smt. K.S. Santhi

Counsels for Respondents

• Sri Arun B. Varghese
• Sri P. Hari
• Smt. Aiswarya V.S.

Case Synopsis & Summary

The High Court of Kerala, in MACA 3045/2016 (with CO 8/2020), heard cross-appeals against an award of the Addl. Motor Accidents Claims Tribunal, Pathanamthitta in OPMV 1588/2009 arising from a motor vehicle accident on 19 April 2009. The claimant, Dr. Rajan, cross-objector, seeks higher compensation, while the insurer HDFC ERGO challenges the Tribunal’s Rs. 19,02,386 award with 9% interest, challenging numerous heads including loss of earnings, medical expenses, bystander’s expenses, pain and suffering, loss of earning capacity and loss of amenities. The Tribunal relied on Ext. A9 to prove the claimant’s income of Rs. 1,91,378 (at the time of the accident) and allowed Rs. 3.58 lakh for bystander’s expenses supported by Ext. A12. It awarded a substantial sum for loss of earning capacity based on a 15% future-prospects addition. The High Court held that the Supreme Court’s Pranay Sethi guidance should cap future prospects at 10%, recalculating loss of earning capacity to Rs. 9,03,113 (after a deduction of Rs. 41,052) and reducing the total compensation to Rs. 18,61,334 with 9% interest from the petition date and costs. The appeal was partly allowed; the insurer must deposit the awarded amount with interest and costs after deducting sums already paid within two months, and the cross-objection was dismissed.

Provisions of Law Cited

Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Future prospects in compensation: 10% addition (as per Pranay Sethi)

Submissions & Arguments

Contentions of Appellants / Petitioners

The insurer contends Ext. A9 establishes the claimant’s income as Rs. 1,91,378 for the accident year; there is no evidence of post‑accident salary reduction, so the Tribunal’s income figure is supported. It defends the bystander’s expenses of Rs. 3.58 lakh supported by Ext. A12. It challenges the Tribunal’s 15% future-prospects addition and urges application of the 10% cap as laid down in Pranay Sethi, while otherwise supporting the Tribunal’s other heads as just and reasonable, and contends for proper MV Act framework.

Contentions of Respondents

The claimant argues the award is inadequate and relies on Ext. A9 for earnings and Ext. A12 for bystander expenses; it seeks higher compensation for loss of earning capacity and urges alignment with Supreme Court guidelines on future prospects to reflect real impact on earning capacity and life. It presses for fair compensation across heads and proper proof of damages.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Pranay Sethi v. National Insurance Co. Ltd.	2017(4) KLT 662 SC	Positive	The court adopts the Supreme Court’s guideline from Pranay Sethi to cap future prospects at 10% for calculating loss of earning capacity.

Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN FRIDAY, THE 25[TH] DAY OF FEBRUARY 2022 / 6TH PHALGUNA, 1943** **MACA NO. 3045 OF 2016** **AGAINST THE AWARD IN OPMV 1588/2009 DATED 22.03.2016 OF ADDITIONAL** **MOTOR ACCIDENTS CLAIMS TRIBUNAL, PATHANAMTHITTA** ## **APPELLANT/3RD RESPONDENT:** **HDFC ERGO GENERAL INSURANCE CO.LTD CAPITOL CENTRE, 2E M.G. ROAD, OPP. SECRETARIAT P.O., THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGER (LEGAL), REGIONAL OFFICE, RAJAJI ROAD, ERNAKULAM.** **BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.LATHA SUSAN CHERIAN SMT.K.S.SANTHI** ## **RESPONDENT/CLAIMANT:** **DR. RAJAN S/O. DAMODHARAN, KALPAKA, KARUVATTA, ADOOR P.O.** **BY ADV SRI.ARUN.B.VARGHESE** **THIS CROSS OBJECTION/CROSS APPEAL HAVING FINALLY HEARD ON 25.02.2022, ALONG WITH CO.8/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **[MACA Nos.3045/2016, 8/2020] ..2..** # **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN FRIDAY, THE 25[TH] DAY OF FEBRUARY 2022 / 6TH PHALGUNA,** ## **1943** **CO NO. 8 OF 2020** **AGAINST MACA 3045/2016 OF HIGH COURT OF KERALA** ## **PETITIONER/RESPONDENT:** **DR.RAJAN AGED 65 YEARS S/O.DAMODARAN, KALPAKA, KARUVATTA, ADOOR.P.O, PATHANAMTHITTA DISTRICT-691523** **BY ADVS. ARUN.B.VARGHESE SRI.P.HARI SMT. AISWARYA V.S.** **RESPONDENT/APPELLANT:** **HDFC ERGO GENERAL INSURANCE COMPANY LIMITED CAPITOL CENTRE, 2 E.M.G, ROAD, OPPOSITE SECRETARIAT ROAD, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGER (LEGAL), REGIONAL OFFICE, RAJAJI RAOD, ERNAKULAM-682055** **BY ADV K.S.SANTHI** **THIS CROSS OBJECTION/CROSS APPEAL HAVING BEEN FINALLY HEARD ON 25.02.2022, ALONG WITH MACA.3045/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **[MACA Nos.3045/2016, 8/2020] ..3..** ## **JUDGMENT** The appellant is the 3[rd] respondent-Insurance Company in O.P.(MV)No.1588/2009 on the files of the Additional Motor Accidents Claims Tribunal-III, Pathanamthitta and the claimant therein is the Cross Objector. 2. The parties are referred to as per their status in the claim petition. 3. The petitioner, who was an Ayurvedic Doctor, sustained injuries in a motor vehicle accident occurred on 19.04.2009 while he was travelling in a car driven by the 1[st] respondent, owned by the 2[nd] respondent and insured with the 3[rd] respondent. The petitioner claimed an amount of Rs.39,00,000/- as total compensation for the injuries sustained in the accident. 4. The Tribunal found that the accident happened due to the negligent driving of the car by the 1[st] ## **[MACA Nos.3045/2016, 8/2020] ..4..** respondent and awarded an amount of Rs.19,02,386/with 9% interest per annum from the date of the petition till realisation with proportionate costs. The 3[rd] respondent Insurance Company was directed to satisfy the award. Challenging the said award, the Insurance Company has preferred this appeal. 5. The petitioner has filed Cross Objection contending that the amount awarded by the Tribunal is totally inadequate. 6. Heard the learned Counsel for the petitionerclaimant and the learned Counsel for the Insurance Company. 7. The Tribunal awarded an amount of - Rs.19,02,386/- under the following heads: |Sl. No|Head of Claim|Amount claimed|Amount awarded| |---|---|---|---| |1|Loss of earnings + partial loss of earnings|1100000|191378| ## **[MACA Nos.3045/2016, 8/2020] ..5..** |2|Transport to hospital|30000|5000| |---|---|---|---| |3|Extra nourishment|10000|5000| |4|Damage to clothing|3000|1500| |5|Medical expenses|250000|197343| |6|By stander's expenses|357000|358000| |7|Pain and suferings||100000| |8|Compensation for loss of earning capacity|2000000|944165| |9|Loss of amenities & enoyment of life|150000|100000| ||Total|3900000|1902386| 8. According to the 3[rd] respondent Insurance Company, the Tribunal went wrong in relying on Ext.A9 certificate produced by the petitioner which pertains to the income tax returns for the assessment year 20092010. The Counsel for the petitioner submits that the accident happened on 19.04.2009 and the income tax returns are of the period from 01.04.2009 to 31.03.2010; **[MACA Nos.3045/2016, 8/2020] ..6..** ie., for the financial year during which the accident has taken place. According to the learned Counsel for the Insurance Company, there is nothing on record to show that there was any reduction in salary subsequent to the accident. 9. Ext.A9 has been produced in proof of the income of the petitioner at the time of the accident which shows the income of the petitioner from his profession as Rs.1,91,378/-. There is no contra evidence as regards his income. Therefore, the Tribunal was right in relying on Ext.A9 as proof of income of the petitioner at the time of the accident. 10. Another contention of the Insurance Company is that an amount of Rs.3,58,000/- has been awarded towards The has bystander's expenses. petitioner produced Ext.A12 series of vouchers to show that an amount of Rs.3,58,000/- has been paid to the bystander. The bystander was also examined as PW2 before the **[MACA Nos.3045/2016, 8/2020] ..7..** Tribunal. In view of Ext.A12 series produced by the petitioner which were proved through PW2, I do not find anything wrong in the Tribunal awarding an amount of Rs.3,58,000/- as compensation under the head bystander's expenses. 11. Towards pain and suffering, an amount of Rs.1,00,000/- has been awarded. In view of the nature of injuries sustained by the petitioner, I find that the amount of Rs.1,00,000/- awarded towards pain and suffering is just and reasonable. 12. As regards the compensation for loss of earning capacity, the Tribunal has awarded an amount of Rs.9,44,165/-. To arrive at the said amount, the Tribunal has taken 15% addition towards future prospects. The petitioner was aged 51 years at the time of the accident and going by the decision of the Hon'ble Supreme Court in v. _**National Insurance Company Ltd. Pranay Sethi [2017(4) KLT 662 SC]**_ , only 10% addition can ## **[MACA Nos.3045/2016, 8/2020] ..8..** be taken towards future prospects. Accordingly, the compensation under the head loss of earning capacity is re-calculated as Rs.9,03,112.78/- (rounded to Rs.9,03,113/-) [2,10,515.8x11x39/100]. Therefore, an amount of **Rs.41,052/-** [9,44,165-9,03,113] has to be deducted from the said head. 13. I find that the Tribunal has awarded just and reasonable compensation under other heads. In the result, M.A.C.A No.3045 of 2016 is partly allowed and the petitioner-claimant is entitled for a total compensation for **Rs.18,61,334/-** [19,02,386-41,052/-] with 9% interest from the date of petition till realisation with proportionate costs. While admitting the appeal this Court had passed an interim order of stay of the award on condition that the appellant remits 40% of the due amount before the Tribunal within one month and permitting the petitioner to withdraw the said amount. In the light of the judgment now passed, the appellant **[MACA Nos.3045/2016, 8/2020] ..9..** insurance company shall deposit the amount awarded by this judgment with interest and proportionate costs after deducting the amount already paid within two months from the date of receipt of a copy of the judgment. Cross Objection filed by the petitioner is accordingly dismissed. **Sd/MURALI PURUSHOTHAMAN JUDGE** SB/25/02/2022