Allowed

Hdfc Ergo General Insurance Company Ltd. Through Pratik Choudhury v. Babita Devi And Ors.

Jharkhand HC12 Feb 2018MA/577/2015

Case brief

AI extract

What is this about?

The High Court set aside the lower Tribunal's judgment dismissing the appeal against a motor accident compensation award. The Court corrected the age assessment of the deceased based on medical evidence, recalculated the dependency loss and interest, and directed the insurer to pay a lump sum of Rs. 9 lakhs and future interest.

What did the court decide?

Directed the appellant to pay a lump sum compensation of Rs. 9 lakhs and interest at 10% from the date of the order.

Hdfc Ergo General Insurance Company Ltd. Through… — Motor Accident Claims | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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M.A. No.577 of 2015

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HDFC ERGO General Insurance Company Ltd. through Pratik Choudhary, Assistant Manager, Claims (Legal), 3^rd Floor, OSL Tower, OSL Automobiles, Badambari, Cuttack-753009, Orissa as well as office Gayatri Enclave, Near-Tata Motors Union Office, Bistupur, Jamshepur, Dist.-East Singhbhum…… Appellant

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Versus

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Babita Devi, wife of Late Kailash Poddar,

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Aditya Raj (Minor), S/o Late Kailash Poddar

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Sikesh Kumar Poddar, S/o Late Kailash Poddar

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Bajrang Prasad Gupta, S/o Mathura Prasad Gupta …… Respondents

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CORAM: HON’BLE MR. JUSTICE AMITAV K. GUPTA

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For the Appellant : Mr. Peeyush Krishna Choudhary, Advocate For the Respondents : Mr. Jayanta Sarangi, Advocate ----------------------------

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04 / Dated : 12th February, 2018

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1. This appeal is directed against the judgment dated 18.09.2015, passed in M.A.C.C. No.24 of 2013 by the District Judge-I -cum- Motor Vehicle Accident Claim Tribunal, West Singbhum, Chaibasa whereby the appellantHDFC ERGO General Insurance Company Ltd. has been directed to pay the compensation amount of Rs.9,36,000/- less Rs.50,000/- paid as interim compensation under Section 140 of the M.V. Act, i.e. Rs.8,86,000/- with interest @ 9% payable from 18.07.2013 till payment or realisation.

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2. It is submitted that Kailash Poddar was travelling on the tempo bearing registration No. JH05 AM 6578. It is alleged that the driver of the said vehicle was driving the vehicle in a rash and negligent manner due to which he lost control of the tempo which fell from the bridge into Koyal river. That the deceased sustained injuries on the head due to the impact with the railing of the bridge. He was brought for treatment to the Primary Health Care and then taken for better treatment to Rourkela but he died on the way.

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3. Learned counsel appearing for the appellant- HDFC ERGO General Insurance Company Ltd. has submitted that the deceased was father of the owner of the tempo and he does not come in the category of a third party in terms of Section 147 of the M.V. Act, 1988. It is argued that the Tribunal has not appreciated the fact that as per the post mortem report the age of the deceased has been assessed at 53 years and in such circumstances it has erred in computing the age of the deceased as between 45 to 50 years on the

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basis of the statement of the claimant. It is canvassed that no document regarding the income of deceased has been produced and the Tribunal has committed manifest error in assessing the income at Rs.6000/- per month merely on the basis of the statement of AW-1-claimant and DW-1. That the compensation awarded is excessively exorbitant and the interest levied at 9% is on the higher side.

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On the above ground it is submitted that the impugned judgment is fit to be set aside and the appellant be exonerated of the liability to pay the compensation.

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4. Learned counsel for the respondents-claimants, has contended that the Tribunal has not committed any error in passing the impugned judgment as the evidence has been led that the deceased was aged 42 years which is supported by the voter identity card, i.e., Exhibit-5 and AW-1 the claimant, who is wife of the deceased has also stated that the deceased, was aged 42 years. That the court below has exercised its judicial discretion and recorded its satisfaction that the deceased was aged between 45-50 years. That the deceased was employed as a Manager in the wholesale business of DW-1 who has stated that the deceased was earning Rs.6000/- per month. The court below has rightly held that the deceased was travelling on tempo as a representative of the owner of the goods and was a third party in terms of Section 147(1). That the tempo was validly insured and the appellant is liable to pay the awarded compensation.

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5. Heard. On perusal of the impugned judgment it transpires that the Tribunal has assessed the age of the deceased between 45 to 50 years. It has disbelieved the age of 42 years as mentioned in the voter identity card. However, on presumption and guess work the Tribunal has assessed the age of the deceased between 45-50 years. Such assessment of age on conjecture is not sustainable because the doctor has mentioned the age of the deceased as 53 years in the post-mortem report. It is well settled that when the medical opinion of the age is given then it varies from 1-2 years on either side. Therefore, the Tribunal should have assessed the age of the deceased at 51 years by deducting two years from the age assessed by the Doctor in the post mortem report. The multiplier applicable considering the age of the deceased should be 11. The deceased and his son were in the business of whole sale

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and DW-1-the employer has deposed that the deceased was being paid Rs.6000/- per month. The finding of the court below on the point of income does not require any interference by this Court. Considering that the deceased was aged 51 years 10% of the income is added towards future prospect and accordingly, the income of the deceased is calculated at Rs.6600/-. The deceased is survived by his wife and a minor son, hence, 1/3^rd of the income is deducted towards personal expenses and the loss of dependency per month is computed at Rs.4400/- and annual loss of dependency comes to Rs.52,000/-. By applying the multiplier of 11, the total loss of dependency is computed at Rs.5,72,000/-. The claimants are also entitled to lump sum amount of Rs.1 lakh towards loss of consortium and loss of estate and towards funeral expenses.

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In view of the interest payable @ 9% on the aforesaid amount from the year 2013 it will be just, fair and reasonable to direct the appellantHDFC ERGO General Insurance Company Ltd. to pay a lump sum compensation amount of Rs.9 lakhs over and above the amount already paid. The amount should be paid by 31.03.2018 failing which the appellant shall be liable to pay interest @ 10% on the said amount from the date of order of this court.

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With the aforesaid modification in the impugned judgment, this appeal is, hereby, disposed off.

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(Amitav K. Gupta, J.)

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NKC

Hdfc Ergo General Insurance Company Ltd. Through Pratik Choudhury v. Babita Devi And Ors.

Case brief

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Hdfc Ergo General Insurance Company Ltd. Through Pratik Choudhury v. Babita Devi And Ors.

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