High Court Of Tripura vs Smt. Dipali Das
2021 Latest Caselaw 282 Tri

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                      HIGH COURT OF TRIPURA
                            AGARTALA
                         MAC APP. No.18/2020
The Oriental Insurance Co. Ltd., Dharmanagar Branch, Rajbari, North
Tripura (Office under Jurisdiction) (Insurer of Truck Regd. No. TR-01-J-
187), Represented by its Divisional Manager, Agartala Divisional Office,
Central Road, P.S.-East Agartala, District-West Tripura. (Insurer of Vehicle
No.TR-01-J-1877).
                                                           ----Appellant(s)
                                     Versus
1. Smt. Dipali Das, Wife of Late Arup Das,
2. Sri Rohit Das (Minor), Son of Late Arup Das,
3. Miss Akshita Das (Minor), daughter of Late Arup Das,
   Respondent no.1 to 3 are residents of Subashnagar, P.O. and P.S.-

Maibong, District- Dima Hasao, State- Assam, Pin-788831.

4. Sri Sanjib Nath, Son of Sri Sudhir Ranjan Nath, of Dewanpassa, P.O.- Dewanpassa, P.S.- Dharmanagar, District- North Tripura, (Driver of Vehicle No. TR-01-J-1877).

                                                       -----Respondent(s)

For Appellant(s)                  : Mr. P. Gautam, Advocate.
For Respondent(s)                 : Mr. Alik Das, Advocate,
                                    Mr. S. Paul, Advocate.

       HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI

      Date of hearing and judgment : 5th March, 2021.

      Whether fit for reporting         : NO.

                    JUDGMENT & ORDER (ORAL)

This appeal is filed by the Oriental Insurance company Limited

to challenge an award dated 24.07.2019 passed by the Motor Accident

Claims Tribunal, North Tripura, Dharmanagar in T.S. (MAC) No.26 of

2018. The insurance company presses this appeal both on the ground of

quantum of compensation awarded by the Claims Tribunal as well as its

liability to satisfy the award.

2. The appeal arises in following background:

One Arup Das after attending a marriage ceremony, had

boarded a bus from Bagbassa to return to Assam. On the way the bus

stopped at a petrol pump to fill diesel. When Arup Das got down from the

bus for drinking water, an oil tanker bearing registration No.TR-01-J-1877

dashed with Arup Das causing fatal injuries. His widow, minor son and

daughter, therefore, filed the said claim petition claiming compensation of

Rs.25,87,264/- from the owner and insurer of the oil tanker involved in the

accident. According to the claimants, deceased was just over 35 years of

age at the time of accident. He was working in a company called "Compass

India Support Services Private Ltd." at Gurgaon. His monthly salary was

Rs.10,065/-.

3. The Claims Tribunal believed the income of the deceased at

Rs.10,599/- at the time of accident, granted 40% for the future rise in income

and thereafter worked out the loss of dependency benefits at Rs.17,80,560/-

by applying a multiplier of 15. To this, the Claims Tribunal added

Rs.40,000/- towards loss of consortium and Rs.15,000/- each for funeral

expenses and loss of estate. The Tribunal thus awarded compensation of

Rs.18,50,560/- which would be borne by the insurance company.

4. Learned counsel for the insurance company submitted that the

claimants had not examined any person from the employer company to

prove the income of the deceased. In absence of any such proof the Tribunal

erred in accepting the income as stated in the pay slip. However, the main

thrust of the appeal of the insurance company was that the vehicle was

driven by a person whose license had expired on the date of accident. Thus,

there was a breach of the terms of the policy and on account of which the

insurance company should have been absolved.

5. On the other hand, counsel for the claimants opposed the appeal

contending that the claimants had led proper evidence with respect to the age

and income of the deceased. The Tribunal has awarded just compensation.

No interference is needed.

6. Learned counsel for the owner respondent No.4 submitted that

the license of the driver was renewed and on the date of the accident the

license was valid. He has along with an affidavit produced a copy of the

renewed license. He, however, conceded that the owner had not produced

such license before the Claims Tribunal, nor led any evidence in this respect.

He was not in a position to offer any explanation for such serious lapse on

part of the owner.

7. I may first deal with the question of quantum of compensation

awarded by the Claims Tribunal and later on decide who should pay such

compensation. Smti. Dipali Das, widow of the deceased, was examined as

witness No.1. In her sworn statement, she had stated that her husband was

aged 35 years at the time of accident and that he was earning a salary of

Rs.10,599/- per month from M/S Compass India Support Services Pvt. Ltd.,

Gurgaon. In her examination-in-chief before the Tribunal she produced

various documents such as, birth certificate of the deceased, his PAN card

and the salary slip. These documents were exhibited. On the basis of his

birth certificate his age was established to be 35 years and 9 months or so.

The salary certificate was issued by Compass India Support Services Private

Ltd., Gurgaon which showed the gross salary of the deceased at Rs.10,599/-

out of which there would be a deduction of Rs.185/- for ESI and Rs.930/-

towards Provident Fund which of course would be in the nature of savings

of the employee.

8. Under the circumstances, I do not find that the Tribunal

committed any serious error in assessing the income of the deceased. The

witness of the claimants was none other than the widow of the deceased.

Quite apart from her oral averments, she had also produced a copy of the

salary slip issued by the employer. In motor accident claim cases, the Courts

do not insist on strict proof of documents as may be required in case of civil

suits. This being a benevolent legislation, the deposition of the wife backed

by the salary slip which also appears to be reasonable and believable, will be

more than sufficient. Significantly, the accident took place near

Dharmanagar in Tripura, the claim petition was filed before the Motor

Accident Claims Tribunal, North Tripura, Dharmanagar. The family of the

deceased resides in Assam and the employer is stationed at Gurgaon. One

can appreciate the difficulties of the widow of a person who met with tragic

accidental death leaving the family in distress, to summon a witness from

Gurgaon to Dharmanagar in Tripura.

9. Rest of the calculations and computations made by the Claims

Tribunal are perfectly in order and are backed by Supreme Court judgments

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

and another reported in (2009) 6 SCC 121 and National Insurance

Company Limited vrs. Pranay Sethi and others reported in (2017) 16 SCC

680. Assessment of compensation, therefore, calls for no interference.

10. This brings me to the version of liability of the insurance

company. If the insurance company is right in pointing out that there has

been a breach of policy, the question of absolving the insurance company of

its liability would arise. On the other hand, if the owner is correct in pointing

out that the license of the driver was renewed before the date of accident

such that on the date of accident there was a valid driving license held by

him, he should not be made to pay the compensation personally even though

the vehicle may have been duly insured. However, the fundamental question

is, is the owner correct in contending that the driving license of the driver

was renewed before the accident and, therefore, valid on the date of

accident. This is a pure question of fact and cannot be decided at an

appellate stage, that too without giving full opportunity to the insurance

company to verify the documents and to oppose the averment of the owner if

it so desires. This issue, therefore, shall have to be remanded before the

Claims Tribunal for fresh decision. However, this situation has been brought

about by the owner due to his sheer negligence and lethargy. He must,

therefore, pay considerable cost for remanding the proceedings.

11. Under the circumstances, appeal is disposed of with following

directions:

(i) Insofar as the quantum of compensation as decided by

the Claims Tribunal is concerned, the same is confirmed;

(ii) Only for the limited purpose of deciding whether the

driving license of the driver was valid on the date of accident, the

proceedings are remanded to the concerned Claims Tribunal before which

the owner as well as the insurance company would have liberty to lead

further evidence. The owner shall pay cost of Rs. 25,000/- to the claimants.

(iii) The Claims Tribunal shall pass a fresh award which

would be limited only on the question of the validity of the driving license

and resultant liability of the insurance company to satisfy the award;

(iv) Under an order dated 24.09.2020 passed in I.A. No.01 of

2020 the insurance company was directed to deposit entire amount of

compensation before the Claims Tribunal with proportionate cost and

interest which I am told the insurance company has. Order for investment

and disbursement of such amount was also passed. The Claims Tribunal

must have carried out such directions. So far as the claimants are concerned,

there would be no requirement for them to appear before the Claims

Tribunal. In other words, qua the claimants the appeal stands dismissed;

(v) Eventually even if the Claims Tribunal comes to the

conclusion that the insurance company is not liable to satisfy the award but

the owner is, the amount already deposited by the insurance company, shall

not be refunded to the insurance company, but it would be open for the

insurance company to recover the said sum from the owner without filing

separate proceedings.

12. Appeal disposed of accordingly.

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

13. Records and proceedings be transmitted to the concerned

Claims Tribunal.

(AKIL KURESHI), CJ

Pulak