Smt. Jyotsna Tanti vs Sri Bhaskar Datta
2021 Latest Caselaw 274 Tri

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                     HIGH COURT OF TRIPURA
                       _A_G_A_R_T_A_L_A_
                          Mac App No.23 of 2020
                                 With
                          CO(FA) No.03 of 2020

Mac App No.23 of 2020
1. Smt. Jyotsna Tanti, daughter of late Nimai Tanti.
2. Sri Prasenjit Tanti, son of late Nimai Tanti.
(Being minor represented by his natural guardian, sister i.e. the Claimant
Appellant No.1)
Both are resident of village Harisnagar Tea Garden, P.S. Bishalgarh,
District- Sepahijala, Tripura.
                                               ......Claimant-Appellant(s)
                                 VERSUS
1. Sri Bhaskar Datta, son of Sishir Kanti Datta, of Bhattapukur, Durgapalli,
Near Panchayet office No.24, P.S. A.D. Nagar, District West Tripura.
(Owner of TR01S-1908 Tata ACE Truck)

2. The Divisional Manager, the National Insurance Company Limited, 42
Akhaura Road, Agartala, P.S. West Agartala, District- West Tripura.
(Insurer of TR01S-1908 Tata ACE Truck).
                                                    ......Respondent(s)

CO(FA) No.03 of 2020 The National Insurance Company Limited to be represented by Senior Divisional Manager, Agartala Divisional Office, 42, Akhaura Road, P.O. Agartala, District- West Tripura, PIN-799001.

......Respondent-Cross Objector(s) VERSUS

1. Smt. Jyotsna Tanti, daughter of late Nimai Tanti.

2. Sri Prasenjit Tanti (Minor), son of late Nimai Tanti. (To be represented by her natural guardian, mother, Claimant-Appellant- respondent No.1) All are residents of Village-Harisnagar Tea Garden, P.S. Bishalgarh, District- Sepahijala.

......Claimant-Appellant Respondent(s)

3. Sri Bhaskar Datta, son of Sishir Kanti Datta, resident of Bhattapukur, Durgapalli, near Panchayet Office No.24, P.S. A.D. Nagar, District West Tripura. (Owner of TR01S-1908 Tata ACE Truck) ......Owner-Respondent(s) For Appellant(s) : Mr. P.S. Roy, Advocate.

For Respondent(s)         :     Mr. A.K. Deb, Advocate.
Date of Judgment          :     4th March, 2021.
& Order
Whether fit for reporting :     NO.

      HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI
                     JUDGMENT & ORDER (ORAL)

Appeal is filed by the claimants seeking enhancement of the

compensation awarded by the Motor Accident Claims Tribunal in Case No.

T.S (MAC) 246 of 2015 dated 14.02.2020. Cross-appeal is filed by the

insurance company challenging the same award.

[2] Brief facts are, that on 29.03.2015 one Nimai Tanti was

travelling in a Tata Ace vehicle bearing registration No.TR-01-S-1908

when the vehicle met with an accident and over turned, causing death of

Nimai Tanti. He was survived by his wife, mother, a son and a daughter. It

appears that initially the claim petition was filed by the mother, wife and

son. Later on, the daughter was also added in the claim petition. The case

of the claimants was that the deceased had hired the vehicle for carriage of

goods and he was traveling in the vehicle with his goods. The vehicle was

insured with the National Insurance Company. The claimants, therefore,

claimed compensation of Rs.53,63,000/- from the owner and insurer of the

vehicle involved in the accident. According to the claimants, the deceased

was aged about 45 years, was a mason earning Rs.15,000/- per month. The

Tribunal believed the income of the deceased at Rs.6,000/- per month at the

time of accident treating him as a ordinary labourer, deducted 1/3rd for his

personal expenditure considering three dependents and applied a multiplier

of 14 in view of the decision of Supreme Court in case of Sarla Verma

(Smt) and others versus Delhi Transport Corporation and another

reported in (2009) 6 SCC 121. The Tribunal then added Rs.20,000/-

towards cremation etc., Rs.50,000/- towards loss of consortium and

Rs.20,000/- for loss of estate. The Tribunal thus awarded compensation of

Rs.7,62,000/-

[3] It appears that the mother and wife of the deceased Nimai

Tanti had already died by the time the award was passed by the Claims

Tribunal, however cause title does not fully reflect these changes. Be that

as it may, the son and daughter of the deceased have filed this appeal. Their

grounds in appeal are that the Tribunal committed an error in assessing the

income of the deceased at Rs.6,000/- only, no rise for future income was

granted and though not argued before me, the question also would be, if

there were four dependents on the date of accident should the deduction for

personal expenditure have been 1/4th and not 1/3rd ?

[4] On the other hand, insurance company has filed this appeal

primarily on the ground of its liability. Learned counsel for the insurance

company vehemently argued that the deceased was a gratuitous passenger.

The insurance company therefore was not liable to satisfy the award. He

relied on the contents of FIR and the charge-sheet filed by the police in

connection with the accident.

[5] I may first deal with the question of correct computation of

compensation. The claimants had examined Jyotsna Tanti, daughter of the

deceased as P.W.1. She deposed that on the date of incident at 6.30 in the

morning her father had boarded the Tata Ace vehicle along with his goods

for construction work. He was travelling from Agartala to Boxanagar. The

vehicle was hired for carrying the goods. During the journey on account of

negligent driving by the driver the vehicle met with an accident and turned

over causing fatal injuries to her father. According to her, her father was a

mason earning Rs.15,000/- per month. In the cross-examination the

insurance company only challenged the version of this witness with respect

to the income of the deceased. No further questions were asked.

[6] The claimants had also examined one Shiba Tanti as P.W.2

who claimed to be an eye witness. Her evidence was primarily with respect

to the manner in which the accident took place. According to her, the

vehicle was being driven at a high speed and in a negligent manner which

caused the accident. To this witness also, the insurance company did not

put any suggestion that the deceased was not travelling with his goods.

[7]         The opponents had not examined any witnesses.


[8]         Considering the fact that the deceased was aged about 45 years

and stated to be a mason, his income can be safely taken at Rs.7,500/- per

month on the date of accident. The Tribunal committed a serious error in

not granting any rise for future income. As provided by the Supreme Court

in case of National Insurance Company Limited versus Pranay Sethi and

another reported in (2017) 16 SCC 680, considering that the deceased did

not have a regular job, looking to his age, there would be 25% rise for

future income. The prospective income therefore would come to Rs.9,375/-

(Rs.7,500 + Rs.1,875/-) per month. As noted, there were four claimants,

deduction for personal expenditure therefore would be 1/4 th or Rs.2,344/-

leaving a net of Rs.7031/- for the dependents per month or Rs.84,372/- per

annum. Adopting a multiplier of 14, loss of dependency benefits worked

out to Rs.11,81,208/- To this we may added Rs.40,000/- each for the loss of

consortium for the surviving son and daughter, Rs.15,000/- for funeral

expenses and Rs.15,000/- for loss of estate. The total compensation

therefore would come to (Rs.11,81,208 + Rs.80,000/- + Rs.30,000/-) =

Rs.12,91,208/-. The Tribunal has already awarded compensation of

Rs.7,62,000/- to the claimants. Therefore, the claimants will be entitled to

receive additional compensation of Rs.12,91,208/- minus Rs.7,62,000/- i.e.

Rs.5,29,208/-.

[9] Coming to the question of liability of the insurance company

to satisfy the award, according to the claimants, the deceased was travelling

in the vehicle with his goods. The Claims Tribunal has accepted his version

on the strength of the evidence of the witnesses, particularly making a note

that to these witnesses no cross-examination by the insurance company on

this point was carried out. I have also perused and referred to the contents

of the evidence of the witnesses in the cross-examination by the insurance

company. The daughter of deceased had clearly stated that on the date of

incident her father was travelling in the Tata Ace with his goods which was

hired for carriage of goods from Agartala to Boxanagar. The insurance

company neither cross-examined this witness on this aspect, nor examined

any independent witness of its own. Reliance on the contents of the FIR

therefore in such circumstances would not be of any consequence.

However, the insurance company is correct in pointing out that the Claims

Tribunal ought not to have awarded penal interest.

[10] In the result, appeal and cross objection are disposed of with

the following directions.

The claimants shall receive additional compensation of

Rs.5,29,208/- which will carry simple interest @ 7% per annum from the

date of claim petition till actual payment. Such amount shall be deposited

by the insurance company before the Claims Tribunal within two months

from today. Upon such deposit, the Claims Tribunal shall invest 50% in a

fixed deposit in any Nationalized Bank for a period of five years. The

interest accruing on such fixed deposit shall be paid over to the claimants

regularly. Upon completion of the said period of five years, the amount

shall be released in favour of the claimants. Both the claimants shall

receive the compensation and the interest in equal measure. Amount of Rs.

25,000/- if deposited by the insurance company at the time of filing the

Cross Objections, shall be transmitted to the Claims Tribunal.

It is clarified that the direction of the Tribunal for payment of

penal interest if the awarded amount is not deposited within certain time, is

deleted.

[11] Appeal and cross-objection disposed of accordingly. Pending

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

(AKIL KURESHI), CJ

Dipesh