Hdfc Ergo General Insurance Co. ... vs Mahila Poonam Devi
2022 Latest Caselaw 13654 MP

                                                             01

       IN THE HIGH COURT OF MADHYA PRADESH
                    AT GWALIOR
                           BEFORE
       HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL

                 ON THE 17th OF OCTOBER, 2022


                  MISC. APPEAL No. 594 of 2017

     Between:-
1. HDFC ERGO GENERAL INSURANCE CO.
     LTD. THR MANAGER LEAGAL 2ND
     FOOLR D. M. TOWE, RACE COURSE
     ROAD (MADHYA PRADESH)

1.




                                                 .....APPELLANT
     (SHRI B.K. AGARWAL, ADVOCATE FOR
     APPELLANT/INSURANCE COMPANY)

     AND

   MAHILA POONAM DEVI W/O LATE SHRI
1. CHHUTTU SINGH, AGED ABOUT 22
   YEARS, NAWLI BADAGAON TEHSIL
   (MADHYA PRADESH)
2. VIKRAM SINGH MINOR UNDER THE
   GUARDIANS     MOTHER     NAMELY
   MAHILA POONAM DEVI W/O CHHUTTU
   SINGH S/O LATE SHRI CHHUTTU
   SINGH, AGED ABOUT 1 YEARS, NAWLI
   (BADAGAON) TEHSIL AND DISTRICT
   MORENA (MADHYA PRADESH)
3. RANVEER SINGH S/O BADREE SINGH,
   AGED ABOUT 55 YEARS, NAWLI
   (BADAGAON) TEHSIL AND DISTRICT
   MORENA (MADHYA PRADESH)
4. SMT KUSUMA DEVI W/O RANVEER
5. SINGH, AGED ABOUT 52 YEARS, NAWLI
                                                                 02

   (BADAGAON) TEHSIL AND DISTRICT
   MORENA (MADHYA PRADESH)
   PANKAJ SINGH S/O KANCHAN SINGH
   TOMAR    NEW   HOUSING    BOARD
   COLONY MORENA (MADHYA PRADESH)
6.
   UDAY    SINGH    SIKARWAR    S/O
   JAGANNATH SINGH VILLAGE BHARRA
   THANA CHINNONI TEHSIL JAURA
   MORENA (MADHYA PRADESH)

                                              .....RESPONDENTS
     (SHRI AKSHAT KUMAR JAIN, ADVOCATE FOR RESPONDENTS.

       This appeal coming on for hearing this day, the court
passed the following:

                          JUDGMENT

Aggrieved by the award passed by the learned Motor Accident Claims Tribunal, Ambah, District Morena in Claim Case No.106/2013 on 16.02.2017 Insurance Company preferred this appeal on the ground that accident has not took place by the insured vehicle and the dependency has been assessed 3/4 which is on the higher side by the learned tribunal. The rate of interest @ 7% as awarded by the Claims Tribunal is also at higher side.

2. Learned counsel for the respondent vehemently opposed the the appeal preferred by the Insurance Company on the ground that learned tribunal while assessing the compensation considered evidence of the claimants oral and documentary and came to the conclusion that accident took place by the offending vehicle which was insured with the appellant and rightly calculated the amount on

the basis of dependency i.e. 3/4. Rate of interest is also appropriate. No interference is warranted.

3. In brief, facts of the case are that, on the fateful day i.e. 4.8.2013 at 12.00 noon deceased Chuttu Singh who is husband of claimant No.1 and father of claimant No.2 and son of claimants No. 3 and 4, was going on foot from Ambah to Nawli. When he reached ahead of Bareh near Tekri, from Ambah side, driver/respondent No.2, ownership of respondent No.1 and the said vehicle insured with respondent no.3, came driving the offending vehicle bearing registration No.M.P.06 CA-1829 rashly and negligently and dashed the deceased, due to which, he got serious injuries. He was taken to Morena hospital. Thereafter, from Morena he was referred to Gwalior. On the way, he died. Due to aforesaid accident, Crime No.484/13 under Section 304 A of IPC was registered. After investigation, charge sheet has been submitted against the respondent No.2 before the competent court.

4. The learned claims tribunal has considered the aspect that at the time of accident the deceased used to work as a labour and his family i.e. claimants/respondents No. 1 to 4 were dependent on his income. They preferred an application under Section 166 of the Motor Vehicles Act seeking compensation before the tribunal. Learned Claims Tribunal after taking into consideration assessed the income of the deceased as minimum wages of unskilled labour 4576/- per month and taking dependency 3/4 passed an award to the tune of Rs. 8,91,312/- along with 7% interest.

5. From the side of respondents/claimants evidence of wife of the deceased Poonam and one Rajveer have been adduced. On behalf of insurance company, Dinesh Kumar Gupta, Investigator has been examined. From the side of claimants/respondents as a eyewitness of the incident evidence of Rajveer Singh PW/2 has been adduced. As per his evidence on 4.8.2013 at about 12.00 noon he along with deceased Chuttu, Suresh and Gaurav having kavar in their hands were going towards their village. When they reached village Bareh near Tekri from Ambah side Mahindra Jeep bearing No. M.P. 06/CA-1829 came in rash and negligently manner and dashed deceased, due to which, he got injuries on his head. He was brought by him and Suresh to Morena Hospital and from there he referred to Gwalior. He and Suresh were bringing him to Gwalior. On the way, he died. During cross-examination, he denied that he is having any relationship with the deceased. He does not know Malkhan Singh. If Malkhan Singh after the incident gave information at Police Chowki Hospital or not he is having no knowledge. In District Hospital Morena relatives of the deceased had not come. He denied that accident has not took place by the aforesaid vehicle. He denied that accident took place by loading Max vehicle. He has not lodged any report regarding aforesaid accident. Rest of his evidence remained unchallenged. Soon after the accident took place deceased in injured position was brought to District hospital Morena. On perusing Ex-P/4, Ex-P/5, it comes out that soon after the accident deceased was brought to District

hospital Morena by his cousin brother Nripal in which doctor has specifically mentioned in his MLC that deceased got injuries in road accident. Thereafter, he was referred to Gwalior hospital. After the death, postmortem was conducted. On the death of the deceased merg No. 69/2013 was recorded and the matter was inquired. During inquiry, statement of eyewitnesses Rajveer and one Bharat Singh were recorded. On the basis of their statements, inquiry officer came to the conclusion that accident took place by offending vehicle Mahindra Jeep bearing registration No. MP.06.CA 1829 and FIR was lodged on the basis of merg inquiry report against the respondent No.2 Uday Singh on 27.08.2013 under Section 304 A of IPC. After investigation, charge sheet has been submitted before the competent court.

6. Learned counsel for the insurance company relying upon the information given by Malkhan Singh to hospital police Chowki Morena Ex-D/2 argued that in merg report uncle/Malkhan Singh has stated that accident took place by loading Max vehicle. Despite this, learned claims tribunal passed an award against offending vehicle. On going through the Ex-D/2 which is information regarding unnatural death under Section 174 of Cr.P.C., it appears that Malkhan Singh gave information at Hospital Chowki Morena regarding death of deceased and has stated that he was on the spot when accident took place by loading max vehicle. He took to the deceased Morena hospital, thereafter, while going to Gwalior he died. But after the aforesaid information on the merg, inquiry was

conducted by concerning police officer and after doing inquiry he came to the conclusion that accident took place by aforesaid offending vehicle No.MP.06 CA 1829 and registered the FIR.

7. It is true that from side of insurance company evidence of investigating officer Dinesh Kumar Gupta has been adduced in which he has merely stated about merg report which was lodged by Malkhan Singh but which was considered aforesaid. It is further submitted that there is no appeal or cross filed by the claimants in the present appeal. In such circumstances, the learned claims tribunal had wrongly considered the aspect regarding dependency as well as interest which are on higher side. Therefore, the same should be reduced.

8. Looking to the facts and circumstances of the case after merg inquiry offence has been registered against respondent No.6, this Court is of the opinion that the learned tribunal has not erred in holding that accident took place by aforesaid offending vehicle bearing registration No. MP.06 CA1829.

9. As far as second ground raised by the insurance company is concerned, claimants are wife, son, mother and father of the deceased and the deceased was aged about 25-26 years. Learned tribunal rightly came to the conclusion that they were dependent on the deceased's income.

10. As far as rate of interest 7% and dependency i.e. 3/4 are concerned, looking to the present facts and circumstances of the case the rate of interest as well as dependency appear on higher

side. However, award of interest and dependency being excessive is reduced to 6% and 2/3 in place of 7% and 3/4.

11. In view of the aforesaid, the award passed by the learned claims tribunal is modified to the extent in following manner:- Income assessed by the learned 4576/- per month claims tribunal (4576x12=54,912/-) per annum Dependency 2/3 would be 54,912x2/3= 36,608/-

      applicable
      Multiplier 18                     36,608x18

      Other heads                       70,000/-
      Total                             36,608x18+70,000=7,28,944/-

12. The Claims Tribunal has awarded compensation of Rs.8,91,312/-. Thus, compensation awarded by the Tribunal is reduced from Rs.8,91,312/- to Rs.7,28,944/- with interest @ 6% in place of @ 7% per annum as awarded by the claims tribunal. Rest of the terms and conditions of the award shall remain intact.

13. As a consequence thereof the appeal is partly allowed and the impugned award is modified accordingly.

(DEEPAK KUMAR AGARWAL) JUDGE van

VANDANA VERMA 2022.10.18 18:26:17 -07'00'