Tripura High Court

National Insurance Company Ltd. vs Smt. Rina Debnath And 3 Ors. on 30 June, 2021

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                                     HIGH COURT OF TRIPURA
                                           AGARTALA

                                             MAC App. 63 of 2019

                 National Insurance Company Ltd., Agartala Division, 44 Akhaura Road,
                 Agartala, P.S. -West Agartala, District- West Tripura.
                                                                        -----Petitioner(s)

                                                  Versus

                 1.Smt. Rina Debnath and 3 Ors. W/O Late Tapan Debnath
                 2.Miss. Trisha Debnath, D/O. Late Tapan Debnath
                 3.Smt. Milan Debnath, M/O. Late Tapan Debnath, W/O. Sri Sadhan Ch.
                 Debnath, All are resident of Nayagram, Chowmuhani Bazar, P.S. -Amtali,
                 P.O.- Surjamaninagar, Dist. - West Tripura, Pin - 799130. (Respondent No. 2
                 being minor is represented by the Respondent No. 1 as natural guardian).
                                                                     -----Respondent(s)


                 For the Petitioner(s)            :   Mr. S D Choudhury, Adv.
                 For the Respondent(s)            :   Ms. Sarama Deb, Adv.
                 Date of hearing                  :   08.03.2021
                 Date of judgment                 :   30.06.2021
                 Whether fit for reporting        :   No.
                                                BEFORE

                            HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY

                                              JUDGMENT

[1] By means of filing this appeal under Section 173(1) of the

Motor Vehicles Act, the insurance company has challenged the award

dated 23.03.2017 delivered by the Motor Accidents Claims Tribunal,

No.1, West Tripura judicial District, Agartala in Title Suit (MAC) 341

of 2012 whereby and where under the Tribunal assessed and awarded a

total sum of Rs.18,98,000/- along with 9% interest there on to the

claimant petitioners [Respondents 1-3 herein] as compensation on

MAC App.63 of 2019

account of the death of Tapan Debnath in a road traffic accident at

Amtali in West Tripura on 22.02.2012.

[2] The facts relevant for disposal of the appeal are that 34

years old Tapan Deabnath, an electrician, was returning home from

Agartala on his motor bike bearing registration No.TR-01-D-9553. On

his way, the offending vehicle bearing registration No. TR-01-G-0744

hit his motor bike form the opposite direction. Said Tapan Debnath

received multiple injuries from the accident and he was taken to nearby

TMC and Dr.BRAM Teaching hospital at Hapania where he was

declared dead. Post-mortem was done at AGMC and GBP Hospital on

the following day and it was opined by the autopsy surgeon in his post-

mortem report [Exbt.1 series] that the findings were consistent with a

road traffic accident. His elder brother Subhas Ch. Debnath lodged a

written FIR with the officer-in-charge of Amtali Police Station on the

same day alleging that a speeding vehicle hit his brother on the road

while he was returning home from Agartala on his motor bike at about

9 O'clock in the night and the accident occurred due to rash and

negligent driving of the offending vehicle and while he was taken to

hospital he was declared dead. The informant stated in his FIR that the

vehicle could not be identified due to insufficient light on the street.

MAC App.63 of 2019

[3] Based on his FIR Amtali P.S Case No.29 of 2012 under

Sections 279 and 304A IPC was registered and the case was taken up

for investigation. Having carried out the whole investigation of the

case, the investigating officer submitted final report No.13 of 2012 in

the case stating that the materials collected during the investigation

established that Tapan Debnath died in a road traffic accident. But the

identity of the vehicle and its driver could not be established during

investigation.

[4] Wife, daughter and mother of the deceased being

claimants filed a petition under Section 166 of the MV Act claiming

compensation of a sum of Rs.50 lakhs on account of the death of said

Tapan Debnath. Manoranjan Pal, owner of vehicle bearing registration

No.TR-01-G-0744 was impleaded as respondent No.01 and the

Divisional Manager, National Insurance Company Agartala was

impleaded as respondent No.2 in the case. Notice was issued to the said

respondents. Respondent No.1 submitted a written reply in which he

admitted that he was the owner of vehicle bearing registration No.TR-

01-G-0744 and the vehicle was duly registered with the National

Insurance Company Limited and the insurance policy was effective

w.e.f. 30.06.2011 to 29.06.2012. He pleaded that "no accident occurred

due to rash and negligent driving of the vehicle and as such he was not

liable to pay compensation to the petitioners". In paragraph 6 of his

MAC App.63 of 2019

written reply he stated that "Sri Litan Ghosh, son of late Hiralal Ghosh

of Noabadi, P.S. Jirania, District West Tripura was the driver of the

vehicle at the time of the accident who had a valid driving license". In

its written objection, in paragraphs 19 & 20, the insurance company

[respondent No.2] pleaded as under:

"19. That, the liability of the answering opposite party no.2, if any, is restricted within the scope and terms of the policy of insurance and the provisions of the Motor vehicles Act, 1983 and Rules framed there under with amendment made from time to time.

20. That, the specific and absolute burden to prove the policy of insurance relevant to the present claim is on the owner of the alleged involved vehicle bearing registration no. TR-01-G-0744,(Maruti Van) and on failure or neglect or absence to shift such burden would be peril and all naturalness, the answering opposite party will not have as liability of whatsoever nature."

It was further pleaded by the insurance company that the

amount claimed by the petitioners was exorbitant. The insurance

company would be liable to pay the compensation only when the

accident, injury / death and a valid insurance policy is proved by the

claimant.

[5] In the course of trial, claimant wife of the deceased,

examined herself as PW-1, one Ratan Das as PW-2, Sri Sadhan

Chandra Debnath as PW-3 and Sri Manik Lal Das as PW-4. Apart from

adducing the ocular testimony of the said witnesses, claimants also

relied on few documents which were exhibited at the trial and marked

MAC App.63 of 2019

as Exbt.1 series and exbit.2. From the side of the respondents, Maran

Sarkar, investigator appointed by the insurance company was examined

as OPW-1. His report was taken into evidence and marked as Exbt.3

series. Manoranjan Pal, owner of the offending vehicle also examined

himself as OPW and produced the registration certificate of his vehicle

and the driving license of his driver Litan Ghosh which were exhibited

and marked as Exbt.B & A respectively. During trial, the Tribunal

framed the following issues:

"1. Whether vehicle bearing registration No.TR-01-G-0744 (Maruti Van) and the bike bearing TR-01-D-9553 met with an accident on 22.02.2012 at about 2100 hours on Agartala Bishalgarh Road near Veterinary Hospital, Chowmuhani Bazar under Amtali P.S. due to rash and negligent driving of the vehicle TR-01-G-0744 (Maruti Van) ?

2. Whether Tapan Debnath died as a result of that accident?

3. Whether the petitioners are entitled to get any compensation and if so, what shall be the reasonable amount?

4. Who shall make the payment of compensation, if any?"

[6] Tribunal took up all the issues together for determination

and decided those issues in favour of the claimants on the strength of

the materials on record adduced by the parties. With regard to the

involvement of the vehicle, tribunal relied on the statement of PW-4

Manik lal Das, an advocate's clerk, who stated in his examination-in-

MAC App.63 of 2019

chief that on the material day a speeding Maruti Van bearing

registration No.TR-01-G-0744 overtook their vehicle at about 9

O'clock in the night when they were returning to Agartala from

Palatana electric project in a hired vehicle. Immediately thereafter, the

said Maruti van hit a motorcycle. The PW stated that he could read the

number of the vehicle in the light of the vehicle in which he was

travelling. Thereafter, he had taken the injured to the nearby TMC and

Dr.BRAM Teaching hospital at Hapania where he was declared dead.

The said PW was cross examined on behalf of the respondents. During

such cross examination the PW was asked about the number of the

vehicle in which he was travelling. In answer he said he did not notice

the number of his vehicle. It was then suggested to him that he was

sleeping inside his vehicle and as a result he did not see the number of

the offending vehicle. He denied the suggestion.

[7] On the basis of the said evidence, Tribunal allowed the

claim petition and granted compensation as aforesaid observing as

under:

"8...PW4 Manik Lal Das in his evidence stated that he along with his friends went to Palatana, Udaipur to visit Palatana Energy Project. On returning from Palatana towards Agartala, they found that one Maruti Van bearing registration No. TR-01-G-0744 was coming towards Agartala which was behind their vehicle but after some times the driver of the Maruti Van overtook their vehicle and came in front of them. When they reached near Veterinary Hospital, Chowmuhani Bazar they had

MAC App.63 of 2019

seen that the said Maruti Van bearing registration No. TR-01-G-0744 which was coming from Bishalgarh side very rashly and negligently dashed one motor bike. As a result the rider of the motor bike fell down on the road and sustained bleeding injuries. PW4 in his evidence further stated that he had seen the number of the offending Maruti Van by the light of their vehicle. In cross examination by O.Ps. some suggestions were put to him.

9. The FIR Exbt.1 series speaks of clear picture that on 22.02.2012 at about 2100 hours the victim Tapan Debnath was returning to his house from Agartala riding his motor bike. When he reached near Chowmuhani Bazar an unknown vehicle coming from Bishalgarh side with high speed, rashly and negligently dashed his motor bike. As a result, he sustained injuries on his head. Soon after the accident he was shifted to the TMC & Dr. BRAM Teaching Hospital, Hapania but the attending doctors of the said hospital declared him dead. From the Post mortem report marked Exbt.1 series it is found that the findings mentioned in the post mortem report of Tapan Debnath are consistent with road traffic accident. From the Final Report marked Exbt.'C' series it is also found that police after investigation submitted report stating that the witnesses namely, Sri Ashish Saha and Sanjit Debnath have seen an unknown vehicle which was proceeding towards Agartala through P.O. with high speed and without light but they could not identify the number of the vehicle which met with an accident.

10. In the final report it was mentioned that two witnesses namely, Ashish Saha and Sanjit Debnath have seen an unknown vehicle which met with an accident. But they were not examined by the O.P. Insurance Company to substantiate their claim. The final report marked Exbt.'C' series although is an opinion of I.O. but it works not as corroborative evidence of the statement of O.P. No.2.

11. It is most unfortunate that the insurer, due to lack of sincerity or competence or both on the part of their Counsel, could not properly prove its case that the claim petition is based on false and concocted story. Normally, when the claimants are able to create a high degree of probability in their case, the onus shifts to the O.P. No.2. It is then for the O.P. No.2 to discharge their onus. In the absence thereof, the burden of proof on the claimants would stand discharged, which would amount to prove their case.

MAC App.63 of 2019

12. From the evidence of P.W.2 and PW4, who are independent witnesses, it is found that the accident had occurred due to rash and negligent driving of the Maturi Van bearing registration No. TR-01-G-0744 which also corroborates the evidence of the claimant petitioner Nos.1 and 3. Thus, the evidence of the claimant petitioners prove that Tapan Debnath died on 22.02.2012 involving the Maruti Van bearing registration No. TR-01-G-0744 while he was riding the motor bike. So, the offending vehicle bearing registration No. TR-01-G-0744 was solely responsible for the accident and death of Tapan Debnath."

[8] Aggrieved by and dissatisfied with the said award, the

insurance company [respondent No.2] has challenged the said award

mainly on the following grounds:

(i) Tribunal did not consider the fact that during police investigation the offending vehicle and its driver could not be identified as a result of which no charge sheet was submitted in the case.

(ii) Compensation assessed and awarded by the Tribunal is unjust and unfair because the uniform formula for determination of compensation formulated by the Apex Court in various judicial pronouncements has not been followed by the Tribunal.

[9] In the course of arguments Mr.S.Datta Chowdhury,

learned counsel appearing for the respondents vehemently contended

that there was no eye witnesses to the occurrence as a result of which

the brother of the deceased who lodged the FIR could not mention the

registration number of the vehicle in his FIR. Even during

MAC App.63 of 2019

investigation, the IO who examined all the material witnesses of the

case could not identify the offending vehicle and its driver. In such

situation, the Tribunal should not have awarded any compensation to

the claimants. It was also contended by Mr.S.Datta Chowdhury,

learned counsel of the appellant that the process of quantification of the

assessment was also grossly erroneous as the Tribunal did not follow

the guidelines formulated by the Apex Court in various judicial

pronouncements for determination of such compensation.

[10] Ms. Sarama Deb, learned counsel appearing for the

claimant respondents on the other hand argued that strict proof is not a

'sine qua non' of such cases and a claim petition is decided on the basis

of preponderance of probability. According to Ms. Deb, learned

counsel, the owner did not specifically deny the involvement of his

vehicle in the said accident. Rather letter dated 25.01.2014 of

Ramkrishna Das, Exbt.2 would go to show that during investigation of

the case, said Ramkrishna Das, a police officer, received a letter from

the owner of the vehicle admitting the accident and the involvement of

his vehicle in the said accident. According to learned counsel the case

was wholly proved at the Tribunal and the tribunal rightly assessed and

awarded compensation to the claimant petitioners who lost the only

earning member of their family and therefore, the said award does not

call for any interference in appeal.

MAC App.63 of 2019

[11] The records of the Tribunal demonstrates that Ramkrishna

Das, Sub-Inspector of Police of Amtali Police Station submitted an

application dated 25.01.2014 to the Sub-divisional Judicial Magistrate,

Bishalgarh, Sepahijala stating that during investigation of the case,

copy of a letter of Sri Manoranjan Pal, owner of the offending vehicle

was received by the said police officer. Said Sri Manoranjan Pal, owner

of the offending vehicle by the said letter informed the Sub-divisional

Manager, National Insurance Company limited [the appellant herein]

that his vehicle was involved in the alleged accident. Though the said

letter of the owner of the offending vehicle was not produced during

trial at the Tribunal, letter dated 25.01.2014 of Sri Ramkrishna Das, SI

of police was produced at the Tribunal and the document was marked

as Exbt.2 during examination of claimant wife of the deceased namely

Smt.Rina Debnath. Tribunal in its judgment and award did not make

any reference to the said document which has been marked as Exbt.2.

According to the Tribunal, the claimants discharged their burden in

proving the case on preponderance of probability whereas the other

side could not rebut the case of the claimants. Observation of the

Tribunal is as under:

"11. It is most unfortunate that the insurer, due to lack of sincerity or competence or both on the part of their Counsel, could not properly prove its case that the claim petition is based on false and concocted story. Normally, when the claimants are able to create a high degree of

MAC App.63 of 2019

probability in their case, the onus shifts to the O.P. No.2. It is then for the O.P. No.2 to discharge their onus. In the absence thereof, the burden of proof on the claimants would stand discharged, which would amount to prove their case.

12. From the evidence of P.W.2 and PW4, who are independent witnesses, it is found that the accident had occurred due to rash and negligent driving of the Maturi Van bearing registration No. TR-01-G-0744 which also corroborates the evidence of the claimant petitioner Nos.1 and 3. Thus, the evidence of the claimant petitioners prove that Tapan Debnath died on 22.02.2012 involving the Maruti Van bearing registration No. TR-01-G-0744 while he was riding the motor bike. So, the offending vehicle bearing registration No. TR-01-G-0744 was solely responsible for the accident and death of Tapan Debnath."

[12] Turning to the evidence of said Manoranjan Pal, owner of

the offending vehicle it is found that said Manoranjan Pal gave

evidence at the Tribunal as OPW-1 and in his cross examination he also

admitted that he informed the insurance company about the accident.

He stated that he did not submit any copy of such information at the

Tribunal. The Tribunal did not also make any further enquiry about the

letter written by him to the insurance company admitting the accident.

The appellant was absent at the Tribunal when the owner [OPW-1] was

examined at the Tribunal and there was no cross examination of the

owner [OPW-1]. PW-1, Smt. Rina Debnath who submitted the

document [Exbt.2] was not also cross examined on the said document.

[13] The owner in paragraph 4 in his written reply at the

Tribunal stated as under:

MAC App.63 of 2019

"4. That, in reply of the statements as made in Column Nos. 7 to 9,, it is stated that no accident was occurred due to rash and negligent driving of the vehicle and as such the answering Opposite Party is not responsible for the alleged accident as well as the claim of the Claimant Petitioners."

[14] In the given facts and circumstances, it is quite difficult to

arrive at a definite finding with regard to the involvement of the vehicle

bearing registration No.TR-01-G-0744 in the said accident without

further enquiry into the matter. The impugned judgment and award of

the tribunal is, therefore, set aside and the case is remanded back to the

Tribunal with the following directions:

(i)The Tribunal shall issue summons to Manoranjan Pal[OPW-

1]who is stated to be the owner of the vehicle bearing registration

No.TR-01-G-0744[Maruti Van]and Ramkrishna Das, the author of

Exhibit-2 and record their evidence in detail on Exbt.2 providing

opportunity to the appellant to cross examine the witnesses. The

Tribunal will also enquire as to whether any letter dated 05.06.2012