Hdfc Ergo General Insurance Company Limited Vs S.P. Irfan

HDFC ERGO GENERAL INSURANCE COMPANY LIMITED BY ITS MANAGER NO. 2/1 -1 II FLOOR, ADIDAS BUILDING, NEXT TO TANISHAKA JEWELLARY 2ND MAIN, JAYANAGAR, BENGALURU - 560011 NOW AT NO. 25/1 BUILDING NO. 2 II FLOOR,SHANKARANARAYANA BUILDINGS, M G ROAD , BENGALURU - 560001 BY ITS MANAGER (L) (BY SRI. LINGARAJ H S, ADVOCATE)

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AND:

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SP IRFAN NOW AGED ABOUT 43 YEARS S/O ABDUL WAHID R/O OLD POST OFFICE ROAD, NAYAKANAHATTI SIRA TOWN NOW R/A OPP MASJID SIRA GATE SATHYAMANGALA ROAD TUMAKURU TOWN 572101

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…APPELLANT

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RCI LOGISTIC PRIVATE LIMITED NO B- 83,DATTAL OPP KANTEERAVA STUDIO

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HC-KAR

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YESHWANTHPUR BENGALURU CITY 560022

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…RESPONDENTS

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(BY SRI. PATEL D KARE GOWDA, ADVOCATE FOR R1 R2 IS SERVED AND UNREPRESENTED)

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.03.2017 PASSED IN MVC NO.795/2015 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE AND IV MACT, TUMKUR, AWARDING COMPENSATION OF RS. 50,000/- WITH INTEREST AT 6% P.A. FROM THE DATE OF PETITION TILL REALIZATION AND ETC.

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IN MFA NO. 7778/2017

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BETWEEN:

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S P IFRAN AGED ABOUT 43 YEARS, S/O ABDUL WAHID R/O OLD POST OFFICE ROAD NAYAKARAHATTI SIRA TOWN NOW R/AT OPP MASJID SIRA GATE, SATHYAMANGALA ROAD TUMAKURU TOWN

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...APPELLANT

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(BY SRI. PATEL D KARE GOWDA, ADVOCATE)

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AND:

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RCI LOGISTIC PVT LTD NO.B-83, DATTAL OPP KANTEERAVA STUDIO YESHWANTHAPURA BENGALURU BY IS MANAGER / SECRETARY

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THE MANAGER HDFC ERGO GENERAL INSURANCE CO LTD NO.2/1-1, II FLOOR ADIDAS BUILDING, NEXT TO TANISHKA JEWELLARY 2ND MAIN, JAYANAGARA BENGALURU-560011

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...RESPONDENTS

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(BY SRI. H S LINGARAJ, ADVOCATE FOR R2 R1 IS SERVED AND UNREPRESENTED)

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HC-KAR

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THIS MFA IS FILED U/S 173(1) OF MV ACT AGAINST THE JUDGMENT AND AWARD DATED 18.03.2017 PASSED IN MVC NO.795/2015 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE AND IV MACT AT TUMKUR, PARTLY ALLOWING THE CLAIM PETITION FOR COMPENSATION AND SEEKING ENHANCEMENT OF COMPENSATION AND ETC.

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THESE APPEALS, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE C.M. POONACHA

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ORAL JUDGMENT

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Both the appeals are filed under Section 173(1) of the Motor Vehicles Act, 1988¹ called in question the judgment and award dated 18.03.2017 passed in MVC No.795/2015 by the III Addl. District Judge and IV MACT., Tumkur. Hence, both the appeals are taken up together for consideration.

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The Tribunal by its judgment and award dated 18.03.2017 partly allowed the claim petition and awarded a total compensation of `50,000/- together with interest @ 6% per annum.

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For the sake of convenience, the parties herein are referred as per their rank before the Tribunal.

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1 Hereinafter referred as to ‘Act’

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HC-KAR

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The relevant facts in a nutshell leading to the present appeals are that, claiming compensation for the damages caused to the vehicle in a road traffic accident which occurred on 23.07.2014, the claimant filed a claim petition contending inter alia that when the lorry belonging to the claimant was proceeding on National Highway No.13, another lorry came and hit the lorry of the claimant, thereby causing the accident in question wherein the lorry belonging to the claimant sustained lots of damage. For recovery of damages caused to the vehicle, the claim petition was filed arraying the owner and insurer of the offending lorry as respondent Nos.1 and 2. Respondent No.1 – owner remained ex-parte before the Tribunal. The claim proceeding was contested by respondent No.2 – insurer. The Tribunal by its judgment and award dated 18.03.2017, partly allowed the claim petition and awarded a total compensation of `50,000/- together with interest at 6% per annum. Being aggrieved, the insurer has preferred MFA No.3921/2017 and the claimant has preferred MFA No.7778/2017.

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HC-KAR

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Heard the submissions of learned counsel

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Sri H.S. Lingaraj appearing for the insurer and learned counsel Sri Harish for learned counsel Sri Patel D. Karegowda appearing for the claimant. Perused the records of the Tribunal.

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It is contended on behalf of the insurer that in the memorandum of appeal although it is contended that the driver of the lorry did not have a valid driving licence, having regard to the judgment of this Court in the order dated 14.12.2017 in MFA No.5723/2016 c/w MFA No.7523/2016, the said contention regarding driving licence is not pressed. It is further contended that the claimant has not examined the owner/authorized representative of the workshop who has carried out the entire works and hence, quantum of compensation awarded is on the higher side.

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Per contra, learned counsel for the claimant

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contended, having regard to the damage to the insured vehicle as is forthcoming from the motor vehicles accident report (Ex.P5), the quantum of compensation is on the lower side.

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HC-KAR

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The submissions of both the learned counsels have

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been considered and the material on record, including the records of the Tribunal, have been perused.

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In the claim petition, the claimant has claimed a total compensation of 5 lakhs. However, it is averred that towards repair charges, the claimant has spent a sum of 2,45,305/- and towards loss of income, the claimant has sustained loss to the extent of 2,40,000/-. In support of the expenses incurred by the claimant towards repair, the Job Card of Asha Motor Sales and Services has been produced as Ex.P7 which discloses that the total labour charges is a sum of 2,45,305/-. However, the claimant has not examined any authorized representative of the workshop which has issued Ex.P7. Apart from the self serving testimony of the claimant who examined himself as PW.1, no other material on record has been produced with regard to loss of income incurred by the claimant. Solely on the basis of Ex.P7, the claim made by the claimant is not liable to be granted.

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In view of the fact that the claimant has not examined any witness in support of Ex.P7 and taking note of

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HC-KAR

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the fact that the Tribunal has awarded lumpsum compensation, it is just and proper, in the interest of justice to dispose of the present appeal by holding that the insurer shall be liable to pay a total sum of `40,000/- together with interest @ 6% per annum.

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Hence, the following:

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ORDER

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i) Both the appeals are disposed of.

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ii) The judgment and award dated 18.03.2017 passed in MVC No.795/2015 by the III Addl. District Judge and IV MACT., Tumkur is hereby modified to the extent of holding that the insurer shall pay a total sum of `40,000/together with interest @ 6% per annum.

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iii) In all other respects, the judgment and award of the Tribunal remains unaltered;

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iv) The amount deposited by the appellant in MFA No.3921/2017 together with records be transmitted to the Tribunal for disbursement in terms of the award of the Tribunal.

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