Tripura High Court

High Court Of Tripura vs Shri Sukanta Paul on 22 December, 2021

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                  HIGH COURT OF TRIPURA
                        AGARTALA
                       MAC App. No. 25/2021
Shri Parimal Das,
Son of Sri Narendra Das resident of Village Rangkang,
Netaji Coloney, P.S. Birganj, Sub-Division Amarpur,
Gomati, Tripura, Pin-799101
                                                   ............... Appellant.
                                 Versus

1.    Shri Sukanta Paul,
Son of Shri Santosh Kumar Paul resident of Santipally, P.S.
Birganj, Sub-Division Amarpur, Gomati, Tripura, Pin-
799101 (Owner of TR-01-C-1824 Truck, TATA)

2.    Shri Mahaprabhu Jamatia,
Son of Shri Abhi Manya Jamatia resident of village Duluma
Para, P.S. Birganj, Sub-Division Amarpur, Gomati, Tripura,
Pin-799101 (Driver of TR-01-C-1824 Truck, TATA)

3.    The Oriental Insurance Company Ltd.,
Udaipur Branch, Udaipur, P.S. RK Pur, Udaipur, Gomati,
Tripura, Pin-799120 (Insurer of TR-01-C-1824 Truck,
TATA)

4.   Shri Shital Chandra Das,
Son of Sri Harendra Chandra Das, resident of Village
Rangkang, Netaji Coloney, P.S. Birganj, Sub-Division
Amarpur, Gomati, Tripura, Pin-799101 (Owner of TR-03-A-
4546 Motor Bike)
5.    United Insurance Company Ltd.,
Udaipur Branch, Udaipur, P.S. RK Pur, Udaipur, Gomati,
Tripura, Pin-799120 (Insurer of TR-03-A-4546 Motor Bike)
                                                  ............... Respondent.

BEFORE THE HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY For Appellant(s) : Mr. J. Majumder, Adv.

Mrs. A. S. Lodh, Advocate.

     For Respondent(s)              :     None.

     Date of hearing                :     17th November, 2021.

     Date of Judgment & Order       :     22nd December, 2021.

     Whether fit for reporting      :     NO.



MAC App. No.25/2021.
                                      Page - 2 of 11

                        JUDGMENT AND ORDER

             This      appeal   is     directed       against   the   award    dated

15.02.2021 passed by MACT No.2, Udaipur in Gomati Judicial District

in Case No.TS(MAC) 44 of 2017 whereby claimant Parimal Das was

awarded compensation of a sum of Rs.4,38,317/- with 6% annual

interest thereon for the injuries sustained by him in a road traffic

accident which occurred on 30.03.2012.

[2] The factual background of the case is as under:

Sri Pradip Das, son of the injured lodged a written FIR with

the Officer-in-charge of Birganj Police Station, Amarpur on 30.03.2012

alleging that the offending truck bearing Registration No.TR-01C-1824

hit the motor bike of his father when his father was going to Amarpur

from their Netaji Colony home on his motor bike at about 11.30 a.m.

It was alleged by the informant that the accident occurred due to rash

and negligent driving of the truck and as a result of the said accident

his father received fatal injuries. His left leg was fractured. From the

place of occurrence he was first taken to Amarpur Hospital from where

he was referred to GBP and AGMC Hospital at Agartala. The informant

claimed police investigation and action against the offender.

[3] Based on his FIR, BRG police station Case No.29 of 2012

under Section 279 and 338 IPC was registered and investigation was

taken up. During investigation, evidence was collected by the

investigating agency. The Investigating Officer arrived at the

conclusion that the accident occurred due to rash and negligent driving

of the truck bearing registration No.TR-01-C-1824 which hit the motor MAC App. No.25/2021.

Page - 3 of 11

bike of the appellant from behind. Accused driver of the truck was

found to be responsible for the accident and he was charge sheeted

for rash and negligent driving punishable under Sections 279 and 338

IPC.

[4] The injured appellant filed an application under Section

166 of the Motor Vehicles Act (M.V.Act hereunder) claimimg

compensation of a sum of Rs.10,00,000/-. The appellant pleaded in his

claim petition that he incurred expenses of a sum of Rs.3,00,000/- for

his treatment in various hospitals within and outside the State. He also

claimed that at the time of accident he used to earn Rs.20,000/- per

month from his business. As a result of the injury sustained by him

from the said accident, he became permanently disabled and lost his

earning capacity. He, therefore, claimed the said compensation.

[5] The owner, driver and insurer of the offending vehicle were

impleaded as respondents No. 1, 2 and 3 respectively. The owner and

insurer of the motor bike were also impleaded as respondents No.4

and 5. All respondents submitted written reply to the claim of the

appellant. In their joint written statement, the owner and driver of the

offending truck pleaded that there was no negligence on the part of

the driver of the vehicle. They claimed that all the documents relating

to their vehicle were operative at the time of the accident and as such,

they were not liable to pay any compensation to the claimant.

[6] The insurer of the offending vehicle (respondent No.3)

denied the accident. In paragraph-15 of its written statement the

MAC App. No.25/2021.

Page - 4 of 11

insurance company, however, pleaded that in absence of policy

particulars and fulfillment of the terms and conditions of such policy,

the insurance company would not be liable to pay any compensation.

Respondent No.4 Shital Ch. Das who was the owner of the motor bike

bearing registration No.TR-03-4546 averred in his written statement

that the said motor bike was owned by him which was insured with the

United India Insurance Co. Ltd. and the insurance policy was in

operation on the date of occurrence. He claimed that at the time of

occurrence his motor bike was driven by the appellant who had a valid

driving licence. He denied his responsibility to pay compensation since

his vehicle was insured and the policy was in force.

[7] Written objection was also filed by the insurance company

of the motor bike (respondent No.5) which denied the accident saying

that such accident was never reported to the respondent by the owner

of the motor bike. The insurance company further pleaded that without

complete details of the insurance policy, the respondent would not be

liable to pay any compensation to the injured appellant.

[8] In the course of trial, the appellant was examined and

cross-examined as PW-1, his son Pradip Das was examined and cross-

examined as PW-2 and Dr. Sukumal Sarkar, a Medical Officer and

Member of District Disability Board, Udaipur was examined and cross-

examined as PW-3. Apart from adducing the ocular testimony of said

witnesses, the appellant adduced as many as 17 documentary

evidence which were exhibited and marked as Exbt.1 to Exbt.17/2. No

evidence was however, adduced on behalf of the respondents. MAC App. No.25/2021.

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[9] On appreciation of evidence, the tribunal held that

appellant was entitled to a total compensation of Rs.4,38,317/- along

with 6% annual interest thereon from the date of presentation of the

claim petition at the Tribunal till disbursement.

[10] The impugned award demonstrates that after scrutiny of

the vouchers submitted by the appellant, Tribunal awarded a sum of

Rs. 1,57,572/- to the appellant for medical expenses. This apart

Tribunal also awarded Rs. 54,745/- to the appellant as transportation

and attendant charges. His monthly income was worked out to be

Rs.5,000/-. Since he was confined to bed for about two months and

unable to pursue any normal work, Rs.10,000/- was awarded to him

for actual loss of income. Rs.6000/- was granted for pain and

suffering. Since the claimant-appellant suffered 70% permanent

locomotor disability, the tribunal going by his age applied multiplier 15

and assessed the loss of his future income at Rs.2,10,000/- and thus

calculated the total amount of compensation as under:

Sl.

                                  Heads                      Amount
              No.
              1.       For medical expenses            Rs.1,57,572/-
              2.       For    transportation       and Rs.    54,745/-
                       attendant charges
              3.       Actual loss of income           Rs.    10,000/-
              4.       For pain and suffering          Rs.     6,000/-
              5.       Loss of future income           Rs.2,10,000/-
                                           Total :     Rs.4,38,317/-




MAC App. No.25/2021.
                                  Page - 6 of 11

[11]         By means of filing this appeal under Section 173(1), M.V.

Act, appellant has challenged the impugned award mainly on the

following grounds:

(i) Assessment of monthly income of the appellant was

completely erroneous because tribunal failed to appreciate

that even a day labourer would earn not less than Rs.500/-

per day and, as such, the monthly income of a day

labourer would be around Rs.15,000/- per month whereas

the monthly income of the appellant was assessed at

Rs.5,000/- per month.

(ii) The medical bills submitted by the appellant were

not properly scrutinised by the Tribunal as a result of

which the amount less than the amount actually incurred

by the appellant for treatment was granted to him.

(iii) Calculation of the Tribunal with regard to loss of

income was completely erroneous.

(iv) No amount was granted towards loss of future

prospect despite the law laid down by the Apex Court in

this regard.

[12] In the course of his arguments, counsel appearing for the

claimant argued that the monthly income of the appellant assessed by

the tribunal was grossly inadequate because the appellant had an

established business at the time of the accident from which he used to

earn around Rs.20,000/- per month. Counsel contended that even a

MAC App. No.25/2021.

Page - 7 of 11

day labourer would earn Rs.500/- per day and Rs.15,000/- per month

whereas claimant's monthly income was assessed at Rs.5000/- only.

Counsel further argued that the Tribunal should have granted a just

and proper compensation to the claimant who suffered 70%

permanent locomotor disability from the accident. Counsel therefore,

urges the Court to enhance the amount of compensation. In support of

his contention learned counsel has relied on a decision of this Court in

United India Insurance Co. Ltd. Vrs. Smt. Lila Devi Jamatia and

others; reported in 2016 SCC OnLine Tri 164 wherein it was held by

this court that even in the year 2010 a grocery shop owner would not

earn less than Rs.300/- per day. Counsel submits that the Tribunal

thus committed error in assessing the income of the appellant. Relying

on the decision of the Apex Court in the case of National Insurance

Company Limited Vrs. Pranay Sethi and others; reported in

(2017) 16 SCC 680 counsel has argued that in view of the said

decision of the Hon'ble Apex Court, Tribunal should have made an

addition of 25% because the appellant is a self employed person and

at the time of accident he was between the age of 40 to 50 years. In

this regard, counsel has relied on paragraph-59/4 of the said judgment

of the Hon'ble Apex Court which reads as under:

"59.4 In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."

MAC App. No.25/2021.

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[13] It appeared from the Registry's note dated 16.11.2021

that notice was properly served on all the five respondents. Since

they did not turn up on the date of hearing despite service of notice,

case was heard ex parte against them.

[14] Undisputedly, the accident occurred on 30.3.2012 in

which the appellant, a businessman, received fatal injuries. Police

investigation revealed that as a result of rash and negligent driving of

the offending truck bearing registration No.TR-01C-1824, the said

accident occurred for which driver (respondent No.2) of the said truck

was charge sheeted by the investigating agency. By producing the

disability certificate (Exbt.17) appellant established at the tribunal

that he suffered 70% permanent locomotor disability due to such

accident. On the basis of such materials Tribunal awarded the

aforesaid compensation by the impugned award.

[15] Even though, respondents contested the case at the

Tribunal by filing written objection, they did not turn up to challenge

the appeal despite receiving notice.

[16] In his disability certificate (Exbt.17) dated21.10.2014

claimant's age is recorded as 55. Accident occurred in 2012 when he

was 53 years old. Therefore, as per the judgment of the Hon'ble Apex

Court in Sarla Verma(Smt.) and others Vrs. Delhi Transport

Corporation and Another: reported in (2009) 6 SCC 121 Tribunal

should have applied multiplier 11 instead of 15 for assessment of

MAC App. No.25/2021.

Page - 9 of 11

compensation. Tribunal did not also take a rational view while

assessing the income of the appellant. Since the appellant could not

adduce any documentary proof of his income, tribunal guessed that his

average monthly income would be around Rs.5000/-. Tribunal lost

sight of the fact that appellant maintains a family consisting of his

parents, wife and children and he is the only bread winner of his

family. It would be hardly possible for a person to maintain such family

with a meagre income of Rs.5000/- per month. Even a day labourer of

his age would have earned Rs.10-12 thousand per month at the time

when the accident occurred. The appellant was a businessman by

occupation. Therefore, it would not be irrational to assess his monthly

income at Rs.10,000/-.

[17] In view of his age, income and the disability suffered from

the said accident, the future loss of income may be worked out as

under:

His annual income would be Rs.10,000 x12 = 1,20,000/-.

Since the appellant is a self employed person in the age between the

age of 50 to 60 years there will be an addition of 10% for loss of

future prospects in terms of the judgment of the Apex Court in Pranay

Sethi(supra). After such addition annual loss of his future income

would be Rs.1,20,000 + 12,000 = Rs.1,32,000/-. After multiplication

by 11 the amount would come to Rs.1,32,000/- X 11 = Rs.14,52,000/-

. As the appellant suffered from 70% permanent disability the loss of

his future income would come to Rs.14,52,000 X 70 ÷ 100 =

Rs.10,16,400/-. With regard to assessment made by the tribunal

MAC App. No.25/2021.

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under the other heads, it appears that Tribunal assessed the medical

expenditures, transportation charges etc. on actual basis. Therefore,

no interference is warranted in respect of such assessment. Appellant

was confined to bed almost for two months. During such period he

could not pursue his occupation. Therefore, his actual loss of income

would be Rs.20,000/- at the rate of Rs.10,000/- per month. For pain

and suffering Tribunal should have awarded at least Rs.25,000/-

instead of awarding Rs.6,000/-.

[18] In view of what is discussed above, award payable to the

appellant is reassessed as under:

Sl.

              No.                Heads                        Amount

               1.      Loss of future income            Rs.10,16,400/-
               2.      Actual loss of income            Rs.   20,000/-
               3.      Medical expenses                 Rs. 1,57,572/-
               4.      Transportation & attendant Rs.         54,745/-
                       Charges
               5.      Pain and suffering               Rs.   25,000/-
                                               Total:   Rs. 12,73,717/-




[19]         The appellant originally claimed Rs.10,00,000/-(ten lakhs)

at the Tribunal. The amount of compensation worked out by this court

exceeds Rs.10,00,000/-.Even though court is not powerless to award

compensation more than the amount claimed, this court is of the view

that in the given case compensation payable to the appellant should

be limited to the amount claimed by him.

MAC App. No.25/2021.

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[20] The insurance company (respondent No.3) is directed to

deposit the said amount of compensation of Rs.10,00,000/-(rupees ten

lakhs) with the Registry of this Court within 8(eight) weeks along with

6% annual interest on the said amount from the date of filling till

disbursement.