[Cites 11, Cited by 0]
Sikkim High Court
The Manager, Hdfc Ergo General ... vs Laxmi Sherpa And Anr on 11 December, 2025
Author: Bhaskar Raj Pradhan
Bench: Bhaskar Raj Pradhan
THE HIGH COURT OF SIKKIM: GANGTOK
(Civil appellate Jurisdiction)
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SINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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MAC App. No. 06 of 2025
The Manager,
HDFC ERGO General Insurance Co. Ltd.
4th Floor, Block C,
22, Camac Street Kolkata, West Bengal,
Pin No.700016.
..... Appellant.
Versus
1. Mrs. Laxmi Sherpa,
W/o Mingma Dorjee Sherpa,
R/o Daragoan, Phewa Busty,
Dist: Gangtok, Sikkim,
Pin: 737102.
...... Owner/Claimant/Respondent No.1
2. Mr. Mingma D. Sherpa,
S/o Late R. Sherpa,
R/o Phewa Busty,
Dist: Gangtok,
Pin: 737102.
..... Driver/Respondent No.2
Appeal under Section 173 of the Motor Vehicles Act, 1988.
{Impugned Judgment dated 11.07.2024 passed by the Learned Member,
Motor Accidents Claims Tribunal, at Gangtok, Sikkim in M.A.C.T. Case
No.33 of 2023, directing the Appellants to pay Rs.87,58,739/- only with
interest @ 10% to the claimants from the date of filing of the claim petition
i.e., 28.08.2023}.
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Appearance:
Mr. Rahul Rathi and Ms. Khushboo Rathi, Advocates for
the Appellant.
Mr. Sudesh Joshi and Mr. Adarsh Gurung, Advocates for
the Respondent No.1.
Mr. Anil Gurung, Advocate for the Respondent No.2.
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Date of Hearing : 20.11.2025
Date of Judgment : 11.12.2025
Date on which uploaded : 11.12.2025
2
MAC App No. 06 of 2025
Branch Manager, HDFC ERGO, General Insurance Company Limited.
vs.
Laxmi Sherpa & Anr.
JUDGMENT
Bhaskar Raj Pradhan, J.
1. The Motor Accident Claims Tribunal (the learned
Tribunal) allowed an application under Section 166 of the
Motor Vehicles Act, 1988 (the MV Act) filed by the claimant
(respondent no.1) for compensation on account of her injury
vide judgment dated 11.07.2024 in her favour. The learned
Tribunal awarded an amount of ₹87,58,739/- with interest @
10% per annum from the date of filing of the claim petition i.e.
28.08.2023 until its full realization with a direction to deposit
the admissible court fees. HDFC Ergo General Insurance
Company Limited (the Insurance Company) the appellant
herein is unhappy with the amount awarded and has preferred
the present appeal under Section 173 of the Motor Vehicles
Act, 1988.
The Claim
2. The respondent no.1 had filed a claim under Section
166 of the M.V. Act before the learned Tribunal. The
respondent no.1 sought compensation for an amount of
₹20,50,000/- compensation for injuries sustained by her due
to an accident of the motor vehicle on 29.11.2020 in which she
sustained traumatic paraplegia, fracture of the right humerus
shaft and she sufferred disability to the extent of 75%. She
Branch Manager, HDFC ERGO, General Insurance Company Limited.
vs.
Laxmi Sherpa & Anr.
claimed that she was the owner of the accident vehicle. The
respondent no.1 also alleged that the driver lost control of the
vehicle as he was driving in a rash and negligent manner.
The Written Objections
3. The appellant filed written objection contending that
as the respondent no.1 was the registered owner and travelling
in the accident vehicle she is not entitled to any relief. The
appellant contended that the accident vehicle was registered in
the name of the deceased driver. The appellant contended that
as the injured was the owner of the accident vehicle she was
the second party to the contract of insurance between her and
the appellant. Therefore, the respondent no.1 could not have
preferred a third party claim. It was also contended that the
appellant could have been made liable to pay compensation in
case of the death of the owner provided that additional
premium was paid for „Personal Accident Cover‟.
4. The respondent no.2 also filed his written objection
contesting the claim petition made by the respondent no.1. The
respondent no.2 asserted that he had a valid driving license at
the time of the accident; the respondent no.1 had given her
consent to him to drive the vehicle; he had not driven the
vehicle in a rash and negligent manner and therefore,
respondent no.2 was not liable to pay compensation.
Branch Manager, HDFC ERGO, General Insurance Company Limited.
vs.
Laxmi Sherpa & Anr.
The Evidence
5. Except for the respondent no.1, neither the appellant
nor the respondent no.2 led any evidence.
6. Before the learned Tribunal the respondent no.1
exhibited the First Information Report (FIR) (exhibit-2), the
registration certificate of the accident vehicle (exhibit-3), the
driving license of the respondent no.2 (exhibit-4); the certified
copy of the insurance certificate/policy (exhibit-5), the charge
sheet (exhibit-6); certified copy of authorisation letter issued by
the respondent no.1 in favour of respondent no.2 (exhibit-7)
and the medical papers {referral certificate for admission
(exhibit-8), discharge certificate (exhibit-9), medical reports
(exhibit-10), discharge slip (exhibit-11)} as well as the disability
certificate (exhibit-12), trade licenses (exhibit-13), income
certificate (exhibit-14), medical bills (exhibit-15) and other
documents.
7. The FIR (exhibit-2) alleged that the vehicle driven by
the respondent no.2 met with an accident on 29.11.2020 in
which there were four occupants including the respondent
no.1. One of the occupants succumbed to her injuries on the
way to the hospital. The charge sheet alleged that there was
prima facie material against the respondent no.2 under Section
Branch Manager, HDFC ERGO, General Insurance Company Limited.
vs.
Laxmi Sherpa & Anr.
279, 337, 338, 304A of the Indian Penal Code, 1860 read with
Section 177A/184 of the MV Act.
8. The authorisation letter (exhibit-7) confirmed that
the respondent no.1 had infact authorised the respondent no.2
to drive the vehicle and it was valid from 01.10.2020 to
31.03.2021.
9. The medical documents exhibited by the respondent
no.1 confirm that she suffered from traumatic paraplegia. The
certificate of disability (exhibit-12) certified that respondent
no.1 suffered from traumatic paraplegia and permanent
physical disability to the extent of 75%. The income certificate
(exhibit-14) issued by the Sub-Divisional Magistrate, Gangtok
confirmed that the respondent no.1 had income of ₹60,000/-
per month from her businesses.
The Tribunal's Findings
10. The learned Tribunal on examination of the evidence
on record and materials before him concluded that the
respondent no.1 was entitled to claim compensation though
she was the owner of the accident vehicle. However, the
percentage of the disability could not be computed as 100% as
the disability certificate does not mention that she requires
assistance for life but recommends reassessment of a disability
after one year. The learned Tribunal concluded that the
Branch Manager, HDFC ERGO, General Insurance Company Limited.
vs.
Laxmi Sherpa & Anr.
insurance policy (exhibit-5) was a "bundled motor policy",
which is a "comprehensive motor insurance". It was also found
that the respondent no.1 had paid premium for personal
accident cover. Thus the learned Tribunal concluded that the
respondent no.1 was entitled to claim compensation. The
learned Tribunal relied upon the judgment of the Supreme
Court in Bhagyalakshmi & Ors. vs. United Insurance Company
Limited & Anr.1 and National Insurance Company Limited vs.
Balakrishnan & Anr.2. The learned Tribunal also relied upon the
judgment of the Madras High Court in National Insurance
Company Limited Tiruchengode-637211, Namakkal District vs.
Krishnan3. The learned Tribunal therefore awarded an amount
of ₹87,58,739/- as compensation payable and directed the
payment thereof with interest @ 10% per annum from the date
of filing of the claim until realization.
The Appellant's Grievance
11. The appellant seeks a reversal of the impugned
judgment dated 11.07.2024 on the ground that it is ex-facie
illegal, contrary to materials on record and suffers from non-
application of mind. It is contended that the respondent no.1
1 (2009) 7 SCC 148
2 (2013) 1 SCC 731
3 2013 SCC OnLine Mad 992
Branch Manager, HDFC ERGO, General Insurance Company Limited.
vs.
Laxmi Sherpa & Anr.
failed to prove that she had sustained grevious injuries in the
alleged accident. The appellant also contended that the amount
of compensation awarded by the learned Tribunal is exorbitant
and wrongly assessed.
12. Mr. Rahul Rathi, learned counsel for the appellant
submits that the respondent no.1 being the owner of the
accident vehicle and the insured was not entitled to
compensation. The learned counsel also submitted that the
income certificate (exhibit-14) was not supported by any books
of account of the businesses claimed to have been run by the
respondent no.1 and therefore the income was not correctly
assessed.
Consideration
13. The factum of rash and negligent act of the
respondent no.2 has been adequately proved before the learned
Tribunal. Thus, the claim made by the respondent no.1 under
Section 166 of the MV Act was maintainable. The respondent
no.1 has proved that she had suffered grevious injuries by
leading both oral and documentary medical evidence which
could not be controverted by the appellant. The respondent
no.1 claimed to have been greviously injured and suffered
traumatic paraplegia and fracture of the right humerus shaft,
paralysed and bedridden with 75% disability under continues
Branch Manager, HDFC ERGO, General Insurance Company Limited.
vs.
Laxmi Sherpa & Anr.
medical treatment. In her evidence she proved all the medical
records and the disability certificate. Nothing substantial to
defeat her oral and documentary evidence was brought out by
the appellant during her cross-examination. It was not a
routine personal injury. Therefore, the argument of the
appellant that the respondent no. 1 had failed to prove that she
was greviously injured was incorrect. The contention of the
appellant that the accident vehicle was registered in the name
of the deceased driver was misplaced as the driver is
respondent no.2 before this Court.
14. The first question, which is, to be decided is as
whether the respondent no.1 was entitled to claim
compensation under the insurance policy (exhibit-5) as she had
paid a premium of ₹325/- for the compulsory personal accident
cover.
15. In Balakrishnan (supra) it was found that a
comprehensive policy is also called a package policy and that
such a policy would cover the liability of the insurer for
payment of compensation of the occupant in a car. Thus, what
remains to be examined is whether "a bundled motor policy" is
a "comprehensive/package policy"?
16. During the hearing when asked whether a bundled
motor policy as indicated in the insurance policy (exhibit-5) is
Branch Manager, HDFC ERGO, General Insurance Company Limited.
vs.
Laxmi Sherpa & Anr.
also a comprehensive package policy, the learned counsel for
the parties submitted that it was so. The insurance policy
(exhibit-5) reflects that it is infact a bundled policy with
insurance of one year for "own damage" valid from 03.10.2020
to 02.10.2021 and third party insurance for three years from
03.10.2020 to 02.10.2023. It is also noticed that the insurance
policy had a compulsory personal accident cover and
respondent no.1 had paid a premium of one year of ₹325/-.
17. A comprehensive insurance policy (exhibit-5) is a
complete coverage of the vehicle which includes third party
liability plus own damage coverage. The insurance companies
recommend a comprehensive car insurance policy if one does
not want to spent huge amount of money on repair charges. As
the present insurance policy (exhibit-5) reflects that the
respondent no.1 had insured herself both under own damage
and third party liability it can safely be concluded that the
"bundled motor policy" taken by her can also be called a
"comprehensive package policy".
18. The learned counsel for the appellant also contended
that as the insurance policy (exhibit-5) specified in the "limits
of liability" clause that the cover for owner-driver under Section
III (CSI) is only ₹15,00,000/- and therefore the learned
Tribunal could not have granted anything more as
Branch Manager, HDFC ERGO, General Insurance Company Limited.
vs.
Laxmi Sherpa & Anr.
compensation. As noticed earlier the insurance policy (exhibit-
5) also reflects that the respondent no.1 had taken a
compulsory PA cover and paid a premium of ₹325/-. This
would mean that she had insured her liability for personal
accidents as well and paid an additional premium. It is not in
dispute that respondent no.1 suffered injuries due to the
accident of the vehicle which was insured.
19. In Common Cause, A Registered Society vs. Union of
India & Ors.4 at Paragraph 128 the Supreme Court, held as
follows:
"128. The object of an award of damages is to give the Plaintiff
compensation for damage, loss or injury he has suffered. The
elements of damage recognised by law are divisible into two main
groups : pecuniary and non-pecuniary. While the pecuniary loss is
capable of being arithmetically worked out, the non-pecuniary loss is
not so calculable. Non-pecuniary loss is compensated in terms of
money, not as a substitute or replacement for other money, but as a
substitute, what Mcgregor says, is generally more important than
money : it is the best that a Court can do. In Re : The Medianna, 1900
AC 113, Lord Halsbury L.C. observed as under:
"How is anybody to measure pain and suffering in moneys
counted? Nobody can suggest that you can by arithmetical
calculation establish what is the exact sum of money which
would represent such a thing as the Pain and Suffering which
a person has undergone by reason of an accident...But
nevertheless the law recognises that as a topic upon which
damages may be given."
20. The learned Tribunal has relied upon the binding
precedents laid down by the Supreme Court in Bhagyalakshmi
and Balakrishnan (supra) as well as a reasoned judgment of the
4 (1999) 6 SCC 667
Branch Manager, HDFC ERGO, General Insurance Company Limited.
vs.
Laxmi Sherpa & Anr.
Madras High Court in National Insurance Co. Ltd., Tiruchengode-
Namakkal District (supra) which answers all the issues raised
by the learned Counsel for the appellant to hold that the
respondent no.1 was entitled to claim compensation though
she was the owner of the accident vehicle. This Court is in
agreement with the reasoning.
21. Although it was the appellant‟s contention in the
written objection that it could be made liable to pay
compensation provided additional premium is paid for personal
accident cover it did not state that in the present case no
additional premium was paid. In fact, the appellant led no
evidence. The insurance policy (exhibit-5) clearly reflects that in
fact additional premium of ₹325/- was paid by the respondent
no.1. Therefore, following the reasoning above this Court finds
no fault in the impugned judgment rendered by the learned
Tribunal.
22. The submission of the learned counsel for the
appellant that the income of the respondent no.1 was not
adequately proved is next to be examined. The learned Tribunal
has taken into account the income certificate (exhibit-14)
issued by the Sub-Divisional Magistrate, Gangtok which stated
that the monthly income of respondent no.1 was ₹60,000/-.
Branch Manager, HDFC ERGO, General Insurance Company Limited.
vs.
Laxmi Sherpa & Anr.
23. The learned Tribunal also considered the fact that
the respondent no.1 was running a hotel, bar, restaurant and
had license to run a liquor store. The trade license issued by
the Gangtok Municipal Corporation (exhibit-13) for running a
hotel/resort reflects that it was issued in the year 2013 and
renewed on 25.04.2023 on payment of ₹5700/-. License fee for
the year ending 31.03.2024 had also been paid by the
respondent no.1. The license for retail sale of registered brands
of liquor (exhibit-13) issued by the Excise Department,
Government of Sikkim dates back to the year 2022 and it was
valid till 20.03.2024 having paid the license fee of ₹11,000/- on
06.03.2023. The license for serving registered brands of liquor
in restaurants also shows that the license was issued in the
year 2023. On payment of license fee of ₹5000/- on 25.05.2023
its validity was till 20.03.2024. Therefore, it reflects that the
respondent no.1 had three running businesses and earning
well. Consequently, there is no reason why this Court should
doubt the income certificate issued by the Sub-Divisional
Magistrate, Gangtok (exhibit-14) which is a public document
when the learned Tribunal has thought it fit to rely upon it.
24. The learned Tribunal has granted compensation by
calculating the annual income before the accident as
₹7,20,000/- i.e. (₹60,000/- per month x 12 months). The
Branch Manager, HDFC ERGO, General Insurance Company Limited.
vs.
Laxmi Sherpa & Anr.
learned Tribunal has also calculated loss of future earning per
annum as ₹5,40,000/- i.e. (75% of prior annual income).
Multiplier of 15 has been taken with reference to the age of the
respondent no.1 which was 41 years at the time of accident.
Therefore, the loss of future earning was quantified as
₹81,00,000/- i.e. (₹5,40,000 x 15).
25. Consequently, the quantum of compensation payable
by the appellant to the respondent no.1 was calculated under
the following heads:
Sl.No. Head Amount in ₹
1. Loss of earning 81,00,000
2. Medical expenses 4,58,739
3. Future medical treatment 1,00,000
4. Loss of amenities 1,00,000
Total ₹ 87,58,739/-
26. The learned counsel for the appellant also
contended that the learned Tribunal could not have granted
interest from the date of the claim but only from the date of the
judgment. In view of Section 171 of the MV Act this argument
of appellant is flawed and is rejected. Accordingly, the grant of
interest granted by the learned Tribunal is also upheld.
Branch Manager, HDFC ERGO, General Insurance Company Limited.
vs.
Laxmi Sherpa & Anr.
27. In Sarla Verma vs. Delhi Transport Corporation & Anr.5
the Supreme Court had directed the use of multiplier M-14 for
the age group of 41 to 45 years. We find from the record that
the age of the respondent no.1 at the time of the accident was
41 years. Therefore, the learned Tribunal should have used
multiplier M-14 instead of M-15. Accordingly, the calculation of
loss of future earning is reduced from ₹81,00,000/- to ₹60,000
x 12= ₹7,20,000 x 75%= ₹5,40,000 x 14= ₹75,60,000/-.
Consequently, in view of this calculation the loss of future
earning is taken as ₹75,60,000/- and therefore the total
amount payable to the respondent no.1 is ₹82,18,739/-
(Rupees Eighty Two Lakhs Eighteen Thousand Seven Hundred
Thirty Nine) only along with interest as awarded which is
calculated as under:
Sl.No. Head Amount in ₹
1. Loss of earning 75,60,000
2. Medical expenses 4,58,739
3. Future medical treatment 1,00,000
4. Loss of amenities 1,00,000
Total ₹82,18,739/-
5 (2009) 6 SCC 121
Branch Manager, HDFC ERGO, General Insurance Company Limited.
vs.
Laxmi Sherpa & Anr.
28. With the above modification of the impugned award,
the appeal is disposed of rejecting all other contentions.
29. The Trial Court records shall be remitted to the
Motor Accident Claims Tribunal, Gangtok.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting : Yes
Internet : Yes
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