Tripura High Court
Mac App. No.8/202 vs Sri Bivash Saha Alias Bivash ... on 9 February, 2021
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HIGH COURT OF TRIPURA
AGARTALA
MAC APP. No.8/2020
National Insurance Company Ltd.,
(To be represented by Senior Divisional Manager,
National Insurance Co. Ltd.) of 42 - A. K. Road, Agartala,
P.O. Agartala, District - West Tripura, Pin - 799 001.
............... Appellants(s).
Vs.
1. Sri Bivash Saha alias Bivash Chandra Saha,
S/o Sri Tapan Chandra Saha, of Village - No.2 Fulkumari,
P.S - R. K. Pur, Udaipur, District - Gomati Tripura.
Present Address :
C/o Sri Arup Saha, of Village - Melaghar (Rajghat),
P.S. - Melaghar, Sonamura, District - Sepahijala.
2. Sri Prasanjit Sarkar, S/o Sri Ratan Sarkar of Village - Khilpara,
P.S. - R. K. Pur, Udaipur, District - Gomati Tripura.
[(Owner-cum-Driver of Vehicle No.TR-03-A-1983 (Auto)].
............... Respondent(s).
_B_E_ F_O_R_E_
HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
For Appellant(s) : Mr. A K Deb, Advocate,
For Respondent(s) : Mr. A Acharjee, Advocate.
Date of hearing & judgment : 12th February, 2021.
Whether fit for reporting : No.
J U D G M E N T (O R A L)
This appeal is filed by the insurance company to challenge an
award dated 31st May, 2019 passed in Title Suit (MAC) 21/2011.
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[2] Brief facts are as under :
The respondent No.1 herein was the original claimant. He had
filed the said claim petition on the ground that on 16 th September, 2010 he
was travelling in an auto rickshaw bearing registration No.TR-03A-1983
when on account of negligent driving of the auto rickshaw by the driver, it
overturned, causing serious injuries to the claimant. He was treated as an
indoor patient from 16th September, 2010 to 22nd September, 2010 and
thereafter, had to take private treatment as an outdoor patient on multiple
occasions. The resultant injury left 70% disability for which the claimant
had produced a certificate of the District Disability Medical Board.
[3] The insurance company opposed the claim petition on the ground
of its liability as well as quantum. The contention of the insurance
company was that the vehicle in question which was insured by the
company was not involved in the accident at all. This was on the basis that
in the FIR lodged in relation to the accident, the registration number of
auto rickshaw given was TR-03-2083. The insurance company had filed a
written statement and also cross-examined the claimant on this ground.
Insurance company also examined the Investigating Officer(I.O) who had
investigated the complaint of negligent driving leading to accident.
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[4] The Claims Tribunal did not accept the defence of the insurance
company and concluded that the auto rickshaw bearing No.TR-03-1983
which was insured by the appellant was involved in the accident and that
the accident was due to the sole negligence of the driver of the auto
rickshaw. With respect to the quantum, the Tribunal believed the income
of the claimant at Rs.4,500/- per month from the work of a Conductor of
private busses. He was stated to be aged 42 years. The Tribunal awarded
Rs.45,000/- for 10 months of inability to work. The Tribunal then applied
the disability of 70% to be monthly income of the claimant and applied a
multiplier of 15 to arrive at the figure of Rs.5,67,000/- towards future loss
of income. The Tribunal then added a sum of Rs.50,000/- towards pain,
shock and suffering. The Tribunal also added sundry sums of medical
expenditure and attendant charges to arrive at a total compensation of
Rs.7,14,213/-, however, I do not find clear breakup of these further
reimbursements.
[5] Counsel for the insurance company raised two main contentions.
Firstly, according to him, the vehicle insured by the insurance company
was not involved in the accident as can be seen from the evidence and
secondly, that the quantum of compensation was excessive. According to
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him, the disability was limited for 5 years and further did not translate into
full 70% functional disability.
[6] Counsel for the claimant has opposed this appeal and drew my
attention to the evidence on record.
[7] With respect to involvement of the vehicle in accident, I find that
the claimant himself entered the witness box and deposed that the auto
rickshaw with registration No.TR-03A-1983 was involved in the accident.
There was mere general cross-examination of this witness by the insurance
company. The insurance company did not examine the owner or the driver
of this vehicle. The insurance company did examine the Investigating
Officer as a defence witness. However, his evidence does not support the
insurance company at all. In his deposition he has agreed that initially the
FIR was lodged giving the registration No.TR-03-2083, however, during
the investigation it was found that actually the auto rickshaw with
registration No.TR-03A-1983 was involved.
[8] For multiple reasons, this ground of the insurance company must
fail. Firstly, the Tribunal as a first Court has assessed the evidence and
come to the conclusion which is purely factual in nature, based on reliable
evidence. Secondly, there was sufficient evidence led by the claimant
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regarding involvement of the vehicle in question. Thirdly, as noted,
insurance company did not examine the owner of the vehicle to dispute
this and lastly, the Investigating Officer has also clarified the discrepancy
about the registration number of the vehicle. It can be safely presumed that
on account of similarity of digits in numbers of the two vehicles,
inadvertent error might have crept in while recording the FIR either by the
person reporting or by the writer of the complaint. In any case, when as
clarified by the Investigating Officer during the course of investigation it
was found that the auto rickshaw with registration No.TR-03-1983 was
involved, I see no reason to overturn the findings of the Claims Tribunal in
this respect.
[9] Coming to the quantum of compensation, few corrections need to
be made. First error the Tribunal has committed is that it has not provided
for future rise in income and awarded compensation for future loss on the
basis of current income alone. Second error of the Tribunal is, not to
properly assess the disability. As I will discuss later, the projection of full
70% disability in earning capacity was not proper. Lastly, counsel for the
appellant is correct in pointing out that the Tribunal could have awarded
penal interest in case the compensation was not paid within certain time.
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[10] With this background, we may assess the quantum of
compensation payable to the claimant. With respect to actual loss of
income of Rs.45,000/- for 10 months @ Rs.4,500/- per month, no
modification is needed. The Tribunal has awarded a sum of Rs.50,000/- for
pain, shock and suffering which remains unchanged. The Tribunal has not
given breakup of attendant charges and medical expenditure. For
simplicity, the claimant would receive Rs.25,000/- combined under these
heads.
[11] Next comes the future loss of income. The claimant was believed
to be earning Rs.4,500/- per month. He was aged about 42 years. By virtue
of the judgment of the Supreme Court in case of National Insurance
Company Limited Vs. Pranay Sethi & others reported in (2017) 16 SCC
680, there should be 25% rise for future which comes to Rs.1,125/-.
Prospective income, therefore, would be Rs.6,625/- (i.e. Rs.4,500 +
1,125/-) per month.
[12] The disability certificate showed that he was suffering from
locomotor disability of 70%. It was argued by the counsel for the insurance
company that this was temporary. The certificate carries several columns
whether it is temporary or permanent, whether after 5 years re-examination
is called for or not, all columns are kept blank. For better clarity, therefore,
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we must look at the evidence of the doctor PW.2. The doctor in his
deposition, has clearly stated that certificate of disability was for a period
of 5 years. Even the assessment of disability of 70%, very clearly, was not
for the body as a whole. The case is a very old one. For finality, I shall
have to, therefore, make some guesswork. Firstly, the disability of the body
as a whole can be taken as 35% and that as per the doctor's evidence, the
disability would last only for 5 years. The compensation for future loss of
income would, therefore, work out as under :
Prospective income would be Rs.6,625/-. 35% disability would
make monthly loss to the claimant at Rs.2318.75 rounded off to
Rs.2,400/- i.e. Rs.28,800/- per annum. For 5 years, such loss
would be Rs.1,44,000/-.
[13] Total compensation payable to the claimant would, therefore, be
as under :
Actual loss of income : Rs. 45,000/-
Pain shock and suffering : Rs. 50,000/-
Medical expenditure and attendant charges : Rs. 25,000/-
Future Loss of income : Rs.1,44,000/-
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Rs.2,64,000/-
The award is reduced to the said sum. Such amount shall be paid
to the claimant with simple interest @ 7% per annum from the date of
claim petition till payment.
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[14] Appeal is allowed-in-part and disposed of accordingly. Pending
application(s), if any, also stand disposed of.
( AKIL KURESHI ), CJ
Sukhendu
