Smti. Maha Maya Debbarma vs Sri Himu Chandra Dey
2021 Latest Caselaw 205 Tri

                                   Page 1 of 8




                     HIGH COURT OF TRIPURA
                           AGARTALA
                          MAC APP. No.05/2019
1. Smti. Maha Maya Debbarma, W/O. Santosh Debbarma,
2. Sri Santosh Debbarma, S/O. Lt. Bikram Debbarma,
   Both are residents of Word No- 3, Mungia Kami School, Jarilong
   Bari, Teliamura, Dist- Khowai.
                                                           ----Appellant(s)
                                        Versus

1. Sri Himu Chandra Dey, S/O. Birendra Kr. Dey, Resident of West
Ratacherra, Kumarghat, Unokoti Tripura, Pin-799264. (Owner of offending
vehicle bearing no. TR-02-1290, (BUS).
2. The Divisional Manager, National Insurance Company Ltd., 42,
Akhawara Road, Agartala, West Tripura, Pin- 799001. (Insurer of offending
vehicle bearing no. TR-02-1290, (BUS).
                                                       -----Respondent(s)

For Appellant(s)                  : Mr. Faruk Miah, Advocate.
For Respondent(s)                 : Mr. P. Gautam, Advocate.

       HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI

      Date of hearing and judgment : 19th February, 2021.
      Whether fit for reporting         : NO.

                    JUDGMENT & ORDER (ORAL)

This appeal is filed by the original claimants to challenge an

award dated 14.11.2018 passed by the Motor Accident Claims Tribunal,

West Tripura, Agartala in T.S. (MAC) No.268 of 2016.

2. Brief facts are as under:

On 07.03.2016 one Suman Debbarma aged about 19 years, met

with a fatal vehicular accident in which a bus insured by the respondent

No.2 insurance company was involved. The deceased was unmarried. His

parents thereupon filed a claim petition against the owner and insurer of the

vehicle involved in the accident and claimed compensation of

Rs.34,23,000/-. According to them, the accident occurred on account of rash

and negligent driving of the bus. The claimants examined the mother of the

deceased as PW-1 and one Swapan Das who claimed to be an eyewitness as

PW-2. The Claims Tribunal dismissed the claim petition on the ground that

the deceased himself was negligent in driving his motorcycle which led to

the accident and, therefore, his parents cannot claim any compensation from

the owner or the insurer of the bus. In the process, the Tribunal placed heavy

reliance on a First Information Report filed by one Ratan Sarkar before the

Teliamura Police Station on 07.03.2016 in which the informant had stated

that the accident took place on account of the rash and negligent driving of

the motorcycle by the deceased. According to the informant, he was going

on a bicycle when the motorcyclist first hit him and thereafter his vehicle

dashed with a bus. The Tribunal relied on the fact that upon completion of

the investigation the police had concluded that the deceased was negligent in

causing the accident. Noticing that the claim petition was based on fault

liability the entire claim petition was dismissed.

3. Appearing for the appellants learned counsel Mr. Faruk Miah

submitted that the Tribunal erred in placing reliance on the contents of the

F.I.R. and police investigation and in the process discarded reliable evidence

of eyewitness. He submitted that in motor accident cases the Courts do not

insist on strict proof of negligence. He relied on a decision of learned Single

Judge of this Court in case of Kalpana Majumder and ors. vrs. Sankar

Debnath and anr. reported in (2017) 2 TLR 74 in which it was observed

that in absence of examining the relevant witnesses, police report cannot be

relied upon to discard the eyewitness accounts. Counsel also relied on a

decision of Supreme Court in case of Parmeshwari vrs. Amir Chand & ors.

reported in AIR 2011 SC 1504 in which it was observed as under:

"12. We are constrained to repeat our observation that the total approach of the High Court, unfortunately, was not sensitized enough to appreciate the plight of the victim. The other so-called reason in the High Court's order was that as the claim petition was filed after four months of the accident, the same is "a device to grab money from the insurance company". This finding in the absence of any material is certainly perverse. The High Court appears to be not cognizant of the principle that in a road accident claim, the

strict principles of proof in a criminal case are not attracted. The following observations of this Court in Bimla Devi and others vs. Himachal Road Transport Corporation and others [(2009) 13 SCC 530]: (AIR 2009 SC 2819), are very pertinent.

"In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied.""

4. On the other hand, learned counsel Mr. P. Gautam for the

insurance company opposed the appeal contending that the claimants failed

to prove the negligence of the driver of the bus in causing the accident. The

Tribunal has discussed this aspect in detail and come to correct conclusions.

Appeal may, therefore, be dismissed.

5. PW-1, mother of the deceased, was not an eyewitness.

However, her deposition is relevant in the context of the death of her son in

a vehicular accident in which the bus insured by the insurance company was

involved. In her deposition, she had pointed out that the local people out of

anger had damaged the bus after the accident. With respect to the earning

ability of the deceased, she claimed that deceased was a daily labourer and

was also cultivating agricultural land from which he was contributing

Rs.9,000/- every month for the family expenditure.

6. PW-2, Swapan Das, deposed that he was an eyewitness. On the

night of the incident he was returning home from market when at about 10-

30 p.m. near the house of one Dipak Sharma the bus coming from the

opposite direction going towards Agartala collided with two young people

who were standing by the roadside after parking their motorcycle. He stated

that the bus was being driven at a very high speed and on account of which

the bus driver could not stop the vehicle. In order to save a bicyclist he had

to swerve his vehicle and went on the wrong side and dashed against the two

persons and the motorcycle and that is how the accident had occurred. After

the accident the driver left the vehicle and fled the scene of incident. He and

other people of the locality shifted both the injured persons to a hospital. In

his deposition, he had also stated that his statement was recorded by the

Investigating Officer in connection with the F.I.R. on 08.03.2016.

7. A copy of the statement of PW-2 recorded by the police under

section 161 of Cr.P.C. was produced on record, however, it appears that it

was not exhibited. Nevertheless, the fact that for the incident which took

place on 07.03.2016 the statement of this witness was recorded by the police

on 08.03.2016 is undisputed.

8. On the basis of such evidence on record, it can be seen that the

claimants had examined an eyewitness and whose deposition remained

largely unshaken in a brief cross-examination carried out by the advocates of

the owner as well as the insurance company. The fact that his statement was

recorded by the police the very next day after the late night occurrence of the

accident, would show that he was not a planted witness who surfaced long

time after the accident. There was no basis for the Tribunal to discard such

eyewitness's accounts particularly when his cross-examination at the hands

of the opponents did not bring about any inconsistencies at all. Mere filing

of an F.I.R. by an informant stating that the motorcyclist was negligent in

causing the accident, would not be sufficient to disbelieve the eyewitness

accounts. Most significantly, neither the owner nor the insurance company

examined the driver of the vehicle or the informant who claimed to be a

bicyclist who had received injuries at the hands of the motorcyclist. The

driver of the bus was the best person who could have thrown light on the

manner in which the accident took place. When the insurance company and

the owner chose not to examine him, such a factor must be weighed against

the opponents. In view of this fact, the Tribunal could not have discarded the

evidence of the eyewitness and relied solely on the contents of the FIR or the

possible conclusions of the investigating agency when none of the witnesses

examined by the police were produced before the Tribunal. I have, therefore,

no hesitation in holding that the driver of the bus was solely negligent in

causing the accident.

9. Coming to the question of awarding compensation, the

deceased was stated to be a labourer. In absence of any further proof of his

engagement in cultivating agricultural land, such additional claim must be

discarded. Even as a young man as a daily labourer at the relevant time he

can be expected to earn Rs.6,000/- per month. In view of the decision of

Supreme Court in case of National Insurance Company Limited vrs.

Pranay Sethi and others reported in (2017) 16 SCC 680, there would be

40% rise for future income bringing the prospective income of the deceased

at Rs.8,400/- per month. As laid down by the Supreme Court in case of

Sarla Verma (Smt.) and others vrs. Delhi Transport Corporation and

another reported in (2009) 6 SCC 121, 50% of such amount will be set apart

for the personal expenditure of the deceased since he was unmarried, leaving

behind Rs.4,200/- per month, i.e. Rs.50,400/- per annum for the claimants.

Looking to the age of the deceased, multiplier of 18 would be applied. Loss

of dependency benefits would, therefore, work out to Rs.9,07,200/- (i.e.

Rs.50,400/- x 18). To this, we would add conventional sums of Rs.30,000/-

towards loss of estate and funeral charges and Rs.40,000/- each by way of

loss of parental consortium. The total compensation would, therefore, work

out to Rs.(9,07,200 + 30,000 + 40,000 + 40,000)=Rs.10,17,200/-. The same

shall be deposited by the insurance company with simple interest @ 7% per

annum from the date of filing of claim petition till actual payment with

proportionate interest before the Claims Tribunal within two months from

today. Upon such deposit, the Claims Tribunal shall invest 70% thereof in

any nationalized bank for a period of 5(five) years in a fixed deposit.

Remaining 30% would be paid over to the claimants in equal shares. The

claimants would receive periodic interest on the fixed deposit in the same

proportion. At the end of the period of 5 years, the amount would be

disbursed in favour of the claimants in the same manner.

10. The appeal is disposed of accordingly.

Pending application(s), if any, also stands disposed of.

11. Records and proceedings be transmitted to the concerned

Claims Tribunal.

(AKIL KURESHI), CJ

Pulak