THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Appellate Jurisdiction)
DATED : 2nd December, 2022
------------------------------------------------------------------------------------------------------
SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
------------------------------------------------------------------------------------------------------
MAC App. No.07 of 2020
Appellant : The Branch Manager, Oriental Insurance Company Limited
versus
Respondents : Padam Bahadur Rai and Others
MAC App. No.08 of 2020
Appellant : The Branch Manager, Oriental Insurance Company Limited
versus
Respondents : Karma Tshering Tamang and Others
MAC App. No.09 of 2020
Appellant : The Branch Manager, Oriental Insurance Company Limited
versus
Respondents : Karma Tshering Tamang and Others
Appeals under Section 173 of the Motor Vehicles Act, 1988
----------------------------------------------------------------------------------------
Appearance
Ms. Rachhitta Rai, Advocate for the Appellant.
Mr. Charles L. Lucksom, Advocate for the Respondent No.1.
Mr. Tashi Rapten Barfungpa, Advocate (Legal Aid) for
Respondent No.2.
None present for Respondent No.3.
Mr. R. C. Sharma, Advocate for Respondent No.4.
-----------------------------------------------------------------------------------------
JUDGMENT
Meenakshi Madan Rai, J.
1. These three Appeals, being MAC App. No.07 of 2020,
MAC App. No.08 of 2020 and MAC App. No.09 of 2020, are being
disposed of by this common Judgment.
MAC App. Nos.07, 08 and 09 of 2020 2
2(i). The Learned Motor Accidents Claims Tribunal
(hereinafter, "the Learned Tribunal") in MACT Case No.01 of 2017
(MAC App. No.07 of 2020), awarded compensation of ₹
55,93,328/- (Rupees fifty five lakhs, ninety three thousand, three
hundred and twenty eight) only, to the Claimant, Respondent No.1
herein, with interest @ 10% per annum, from the date of filing of
the Claim Petition till full and final payment.
(ii) In MACT Case No.03 of 2017 (MAC App. No.08 of
2020), an Award of ₹ 4,16,000/- (Rupees four lakhs and sixteen
thousand) only, was granted to the Claimant, Respondent No.1
herein, with the same rate of interest supra, from the date of filing
of the Claim Petition till full and final payment.
(iii) In MACT Case No.04 of 2017 (MAC App. No.09 of
2020), the compensation amount of ₹ 6,28,968/- (Rupees six
lakhs, twenty eight thousand, nine hundred and sixty eight) only,
was granted to the Claimant, Respondent No.1 herein.
(iv) In all three matters supra, the Insurance Company,
Opposite No.3 (Appellant herein), was directed to pay the
compensation.
3. The only point pressed in these Appeals is that, the
Motor Insurance Certificate-cum-Policy Schedule, Exhibit 10 in MAC
App. Nos.07 and 08 of 2020 and Exhibit 11 in MAC App. No.09 of
2020 (hereinafter, referred to "Exhibit 10", both documents being
one and the same), relied on by the Claimant/Respondent No.1 is a
fake document, on the basis of which, liability was nevertheless
fastened upon the Appellant Company by the Learned Tribunal.
Hence, the assailed Judgments and Awards of the Learned Tribunal MAC App. Nos.07, 08 and 09 of 2020 3
in MACT Case No.01 of 2017, MACT Case No.03 of 2017 and MACT
Case No.04 of 2017, be set aside.
4. Learned Counsel for the Appellant contended that the
Insurance Policy relied on by the Claimant-Respondent No.1 is a
fake document and was not issued by the Appellant Company.
That, the Branch Code Number of the Appellant Company is
"313203", which is always cited prior to the Policy Number, issued
to the concerned person, e.g., "313203" followed by the Policy
Number allotted to the insured. That, the Branch Code Number
„313203‟ pertains to Sikkim, whereas Exhibit 10 does not reflect
this number nor does it precede the Insurance Policy Number
allotted to the insured. Instead, an alien number is reflected before
the Policy Number, viz., "313719". It was admitted however that
the document did reflect the Sikkim Code "313203" at the "Issue
Office Code". That, Exhibits „C1‟ and „C2‟ relied on by the Appellant
Company are Computer generated copies of original Insurance
Certificates, issued to the Insurers, which indicate the correct
Format of an original Insurance Policy. That, admittedly Rajen
Tamang, the person whose name is reflected in the alleged fake
Policy is indeed the Agent Broker of the Appellant Company duly
authorised to collect insurance premium from the insurers, but the
Policy purported to have been issued by him is a fake document.
That, in light of this fact, the Learned Tribunal ought to have
rejected the document and dismissed the Claim Petitions.
Consequently, these Appeals be allowed.
5. Per contra, it was contended by Learned Counsel
appearing for the Claimant-Respondent No.1 that the allegation
pertaining to a fake document is not borne out by the records, in MAC App. Nos.07, 08 and 09 of 2020 4
addition to which, the Appellant Company failed to produce their
authorised Agent Rajen Tamang as a witness, to establish the
allegation that the document was a fake document, despite several
opportunities afforded to the Appellant, by the Learned Tribunal.
That, Bikash Roy Pradhan, the witness of the Appellant, under
cross-examination, admitted that Rajen Tamang was their
authorised Agent and his name appears on Exhibit 10 as also the
correct Office Code. The Agent was authorised to collect premium
amounts from the insured and deposit it in their Branch and collect
the Insurance Policy pertaining to the premium received. That, the
witness also admitted that he had not filed any document to
substantiate the fact that third party premium is fixed Region wise
despite such assertion. That, admittedly the Insurance premium
may vary from year to year depending upon the age of the
vehicles, its seating capacity and other taxes. As no error
emanates in Exhibit 10 nor was it established to be a fake
document, its issuance and acquisition, alleged to be mala fide are
unproved, hence the Appeals be dismissed.
6. Learned Counsel for the other Respondents endorsed
the submissions put forth by Learned Counsel for the Claimant-
Respondent No.1 and had no independent submissions to make.
7(i). The Claim Petitions were filed before the Learned
Tribunal on account of a Motor vehicle accident on 06-01-2016,
involving a "Mahindra Bolero", bearing No.SK 04 J 0064, at "Deorali
Dara", Namthang, South Sikkim, at around 0900 hours, in the
vehicle owned by Opposite Party No.1 (the Respondent No.2
herein).
MAC App. Nos.07, 08 and 09 of 2020 5
(ii) In MACT Case No.01 of 2017 (MAC App. No.07 of
2020), the accident claimed the life of one Supriya Rai, aged about
34 years, a Graduate Teacher by occupation in the Government of
Sikkim, receiving a monthly income of ₹ 38,287/- (Rupees thirty
eight thousand, two hundred and eighty seven) only.
(iii) In MACT Case No.03 of 2017 (MAC App. No.08 of
2020), the deceased was one Dhan Maya Tamang, aged about 71
years, by occupation of housewife, with a monthly income of
₹ 6,000/- (Rupees six thousand) only.
(iv) In MACT Case No.04 of 2017 (MAC App. No.09 of
2020), the deceased was Repose Tamang, aged 70 about years, a
retired Government servant, with a monthly income of ₹ 9,803/-
(Rupees nine thousand, eight hundred and three) only.
(v) After framing three Issues for determination, upon
consideration of the entire evidence on record, the assailed
Judgments and Awards were pronounced by the Learned Tribunal.
8. It is pertinent to mention that the records of the
Learned Tribunal reveal that the Appellant Company had been
granted several dates to enable them to produce their Agent, Rajen
Tamang as their witness. Initially, he was not listed as a witness of
the Appellant, however at a later stage they opted to drop the
listed witness, one Bindu Arjen and in her stead sought to examine
Rajen Tamang. The Learned Tribunal vide its Order dated 14-03-
2019 permitted their plea. However, pursuant to the Order,
despite several opportunities by way of adjournments, being
granted to the Appellant to produce the said witness, they were
unable to do so. On 04-04-2019, the Appellant again expressed its
inability to produce the witness, on grounds of his ill-health and MAC App. Nos.07, 08 and 09 of 2020 6
furnished photocopies of medical documents to support its prayer.
The Learned Tribunal unimpressed with the documents concluded
that the documents did not mention that the illness of the witness
kept him from appearing in Court. It was also observed that
despite several opportunities afforded to the Appellant they had
failed to produce the witness, hence the evidence of the witness
was dispensed with. Thus, it transpires that the Appellant failed to
produce the one indispensable witness who in all probability could
have clarified the Appellant‟s position vis-à-vis Exhibit 10.
9. Although several grounds were urged in the averments
by the Appellant in the Memorandum of Appeal before this Court,
however, Learned Counsel for the Appellant during her verbal
arguments contended that the only relief pursued before this Court
pertained to the Insurance Policy being fake and as a result the
Judgment and Award having no basis. No alternative arguments
were advanced before this Court assailing the amount of
compensation granted by the Learned Tribunal, hence the
determination by this Court will be confined to the authenticity or
otherwise of Exhibit 10 and the resultant conclusion.
10(i). The Appellant Company in order to establish that
Exhibit 10 was a false document produced Exhibits „C1‟ and „C2‟
claiming that these two documents are samples of original
Certificates issued by the Appellant. In this context, we may
usefully refer to the evidence-on-affidavit of the witness, Bikash
Roy Pradhan, the Branch Manager of the Appellant Company for
twenty-five years. According to him, the Appellant Company has
different Branches and in the State of Sikkim they have a single
Branch, at Gangtok. They classified this Branch through their MAC App. Nos.07, 08 and 09 of 2020 7
Branch Code "313203". The first six digits in the Policy denote
their Branch Code followed by the Policy Number, viz., „313203‟, in
„31‟ being the Motor Vehicle Department Code and the next four
digits denoting the Policy Number and the remaining numbers the
Policy Serial Number. That, in every genuine Policy the "collection
date" and the "Policy issuing date" will be the same. Pausing here
for a moment, on careful scrutiny of both Exhibit 10 and Exhibit
„C1‟ and Exhibit „C2‟, "the collection date" is found mentioned in the
document, but there is in fact no column styled as "Policy issuing
date" found on the documents, although Exhibit 10, Exhibit „C1‟
and Exhibit „C2‟ bear identical dates of 30-07-2015 at the end of
the policy document. No documentary evidence was put forth to
substantiate the assertion that "313203" was the Branch Code for
Sikkim, nor was it clarified as to which Region "313719" allegedly
an alien number was issued to, if at all.
(ii) It was his further evidence that a Policy issued by their
Office depicts the Bar Code with the Insurance Regulatory
Development Authority (IRDA) Registration Number. While mulling
over this evidence, it emerges that no document was furnished
before the Learned Tribunal to establish that the IRDA registration
number is contained in the Bar Codes. It was deposed that at the
relevant time, the scheduled premium for Third Party Policy for 10
+ 1 (probably indicative of the seating capacity of the vehicle, with
driver) was ₹ 13,265/- (Rupees thirteen thousand, two hundred
and sixty five) only, which is not reflected in Exhibit 10.
Momentarily pausing here, it is pertinent to notice that no schedule
of premium was furnished for the Learned Tribunal to hold that the
premium to be paid for that particular policy (Exhibit 10) would be MAC App. Nos.07, 08 and 09 of 2020 8
₹ 13,265/- (Rupees thirteen thousand, two hundred and sixty five)
only. According to the witness, every Saturday and Sunday, their
Office remains closed, as per the guidelines of the IRDA,
Government of India, however the date of collection "12-04-2015"
reflected in Exhibit 10, fell on a Sunday, hence no collection could
have been made on that day.
(iii) The witness went on to identify Exhibit „C4‟ as the
Computer generated receipt dated 12-04-2015 to support his
evidence that no collection could have been made on the said date.
On this count, relevantly it has been extracted from the witness
during his cross-examination that, Rajen Tamang was the
Company‟s Agent and duly authorised to collect the premium.
Thus, if the Office was closed on 12-04-2015 being Sunday, it can
safely be assumed that the amount could well have been deposited
by the Agent on any other day, authorized as he was, to collect
insurance premium. No evidence was furnished to prove that on
the date of deposit of premium a copy of the Insurance Policy is to
be unfailingly made over to the Insurer. The witness went on to
depose that the seal and signature appearing in Exhibit 10 does not
belong to the Appellant Company, hence Exhibit 10 is neither a
genuine policy nor issued by their Office. On this aspect, it is
pertinent to remark that the original seal of the Company or the
original signature of the Agent were not furnished for comparison
by the Learned Tribunal, with the seal and signature affixed on
Exhibit 10. Without such comparison, there can be no authoritative
conclusion that Exhibit 10 is a fake document. As per the witness,
on 30-07-2015 only two Insurance Policies were issued by the
Office of the Opposite Party No.3 and the Office was not in receipt MAC App. Nos.07, 08 and 09 of 2020 9
of the premium amount pertaining to the accident vehicle.
Although Exhibit „C1‟ and Exhibit „C2‟ were produced as the
Computer generated Insurance Policies issued to one Kapil Kumar
Pradhan and one Uttam Pradhan respectively, it does not establish
the contention that on that day only two Policies were issued. It
may well be assumed that records of other Policies issued on that
day were not printed out. The Appellant is required to furnish the
entire records maintained to lend authenticity to their claims.
11. It is also unfathomable as to how premium collected by
the agent from the insured, outside the Office, can be Computer
generated. The Appellant would have the Learned Tribunal believe
that Exhibits „C1‟ and „C2‟ are genuine documents, merely for the
reason that it has been furnished and relied on by the Appellant
Company, without considering that neither the issuance of the
documents nor its contents and signatures therein have been
proved. Despite the insistence that Exhibit 10 was a fake
document, no proof of any Complaint lodged against the Agent or
any other person before any Police Station to discover the truth of
the matter was before the Learned Tribunal. Indeed it is
inconceivable as to why an insured would pay a premium amount
to obtain a fake document at his own peril. However, third party
claimant is not concerned with the question of fraud or forgery
between the insurer and the insured. In the event, a fraud or error
is discovered to have been committed by any person, the Appellant
would necessarily have to resort to the remedy of initiating
appropriate action for rectification and penalty thereof.
12. The Learned Tribunal after considering the evidence on
record has reasoned in its impugned Judgments as follows; MAC App. Nos.07, 08 and 09 of 2020 10
"27. Shri Bikash Roy Pradhan, the Branch Manager of the Opposite Party No. 3 clearly admitted that Shri Rajen Tamang is the authorized agent of Opposite Party No.3. Exhibit-10 is the certified copy of the Insurance Policy of the vehicle. In Exhibit-10, in place of the details of the agent/Broker, the name of Shri Rajen Tamang with his agent code number as „BA000015623‟ has been clearly mentioned. Exhibit- 10 was served upon the Opposite Party No.3. The Opposite Party No. 3 failed to produce and examine Shri Rajen Tamang, Authorized Agent of Oriental Insurance Company Limited (Opposite Party No. 3) despite several opportunities having been given to it. By perusal of Exhibit -10, it is difficult to identify the fake and the genuine policy. There is no evidence produced by the Opposite Party No.3 that the Opposite Party No.1 owner of the vehicle had involved himself or influenced the said Shri Rajen Tamang to illegally issued the fake insurance policy to him. The Opposite Party No. 3 has not exhibited any complaint/document against the Opposite Parties No. 1, 4 or Shri Rajen Tamang, authorized agent of Opposite Party No. 3 stating that the Opposite Parties No.1 and 4 had obtained a fake insurance policy of the Oriental Insurance Company Limited or Shri Rajen Tamang handed over the fake insurance policy to the Opposite Parties Nos.1 and 4 and the same was in their personal knowledge. There is no evidence to the effect that the Opposite Parties No.1 and 4 had obtained fake insurance policy in collusion with the staff or agent of Opposite Party No.3. From evidence on record, no apparent role appears to have been played by the owner in obtaining the fake insurance policy. It is very difficult to pin point who is responsible for issuance of the fake insurance policy. It is unbelievable that an insured would obtain a fake certificate by paying the same premium at his own risk and peril. The Opposite Party No.4 Shri Biren Gurung further establishes that in order to obtain Exhibit-10, Opposite Party No.1 had given him ₹ 14,500/. He personally knows Rajen Tamang as he is the agent of the Opposite Party No.3. Opposite Party No.4 paid a sum of ₹ 14,500/- to Rajen Tamang, agent of the Opposite Party No. 3 through one Palden Bhutia and Rajen Tamang handed over Exhibit-10 to Opposite Party No.4. Opposite Party No. 4 further establishes that as per the direction of Rajen Tamang, he handed over premium amount to Shri Palden Bhutia. On the facts and circumstances of the case at hand, it cannot be held that Opposite Party No.1 (Owner of the vehicle) has any role to play in issuance of the fake policy, on the other hand evidence on the record cast suspicion towards the authorized agent of the insurance company. Since, Opposite Party No. 3 has admitted that Shri Rajen Tamang is its authorized agent, there is master and servant relation between the Opposite Party No. 3 and the said Shri Rajen Tamang. From this angle MAC App. Nos.07, 08 and 09 of 2020 11
also Opposite Party No. 3 is liable for the act of the said Rajen Tamang. However, the Opposite Party No. 3 is as liberty to conduct an inquiry against its agent Rajen Tamang in respect of issuance of Exhibit 10 to find out the actual fact as narrated supra and if found guilty, it can recover the amount paid to the Claimant by way of the Award in the instant claim petition from the said Rajen Tamang." [emphasis supplied]
13. The observations of the Learned Tribunal in arriving at
its conclusions is perfectly reasoned and brooks no interference.
14(i). In MAC App. No.07 of 2020, the Claimant/Respondent
No.1 (Padam Bahadur Rai) is the father of the deceased.
(ii) In Magma General Insurance Company Limited vs. Nanu 1 Ram alias Chuhru Ram and Others , the Supreme Court while
discussing consortium observed as follows;
"21. ................... In legal parlance, "consortium" is a compendious term which encompasses "spousal consortium", "parental consortium", and "filial consortium". The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased which is a loss to his family. ..............
............................................... 21.3 Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.
...............................................
24. The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under "loss of consortium" as laid down in Pranay Sethi ................"
[emphasis supplied]
(iii) In Magma (supra) the Filial Compensation granted to
the Respondent Nos.1 and 2 the parents of the deceased was ₹
80,000/- (Rupees eighty thousand) only, and divided equally
between them.
1 (2018) 18 SCC 130 MAC App. Nos.07, 08 and 09 of 2020 12
(iv) In light of the said Judgment and for the purpose of
meting out complete justice in the matter, Filial Consortium of
₹ 40,000/- (Rupees forty thousand) only, is granted to the
Claimant/Respondent No.1 in MAC App. No.07 of 2020.
(v) Consequently, a sum of ₹ 40,000/- (Rupees forty
thousand) only, is added to the compensation of ₹ 55,93,328/-
(Rupees fifty five lakhs, ninety three thousand, three hundred and
twenty eight) only, computed by the Learned Tribunal. All other
calculations remain the same.
15(i). In MAC App. No.08 of 2020 and MAC App. No.09 of
2020, the deceased persons were the parents of the
Claimant/Respondent No.1 (Karma Tshering Tamang).
(ii) In Magma (supra), the Supreme Court while discussing
Parental Consortium observed as follows;
"21.2. Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training."
...............................................
24. The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under "loss of consortium" as laid down in Pranay Sethi .............."
[emphasis supplied]
(iii) Consequently, for the purpose of meting out complete
justice, Parental Consortium of a total of ₹ 80,000/- (Rupees
eighty thousand) only, i.e., ₹ 40,000/- (Rupees forty thousand)
only, each, in MAC App. No.08 of 2020 and MAC App. No.09 of
2020, is granted to the Claimant/Respondent No.1.
(iv) Thus, a sum of ₹ 40,000/- (Rupees forty thousand)
only, is added to the compensation of ₹ 4,16,000/- (Rupees four
lakhs and sixteen thousand) only, in MAC App. No.08 of 2020 and,
₹ 40,000/- (Rupees forty thousand) only, to the compensation of ₹ MAC App. Nos.07, 08 and 09 of 2020 13
6,28,968 (Rupees six lakhs, twenty eight thousand, nine hundred
and sixty eight) only, in MAC App. No.09 of 2020. Other
computations made by the Learned Tribunal in both the matters
supra, warrant no alteration.
16. The amounts computed in all the Appeals shall be paid
within a period of two months from today with interest @ 10% per
annum, failing which the Appellant shall pay simple interest @ 12%
per annum, from the date of filing of the Claim Petition, till full
realisation, duly deducting the amounts, if any, already paid by the
Appellant Company to the Claimants-Respondents.
17. Consequently, Appeals are dismissed and disposed of
accordingly.
18. Copy of this Judgment be forwarded to the Learned
Tribunal for information, along with its records, if any.
19. Pending applications, if any, also stand disposed of.
( Meenakshi Madan Rai ) Judge 02-12-2022
Approved for reporting : Yes
ds/sdl
