Tripura High Court
Smt. Chhana Rani Das (Kar) vs Sri Debasish Nath on 8 March, 2021
Page 1 of 10
HIGH COURT OF TRIPURA
AGARTALA
MAC App. 10 of 2021
1.Smt. Chhana Rani Das (Kar),
W/O Late Janardhan Kar
2.Sri Tapas Kar
S/O Late Janardhan Kar
3.Sri Prasenjit Kar
S/O Late Janardhan Kar, All are resident of Village- Nagraibari, East Barjala (S.N.
Colony), P.S. Jirania, District- West Tripura.
4.Smt. Priyabala Kar
W/O Late Nikunja Bihari Kar of Village- Bangali Para, West Hawaibari, P.S.
Teliamura, District- Khowai, Tripura.
-------Petitioner(s)
Versus
1.Sri Debasish Nath,
S/O Dilip Nath, of Village- Subhashnagar, P.S. Kanchanpur, District- North
Tripura, (Owner of Bolero Maxi Truck,No.TR-02G-1573)
2.The Branch Manager, Oriental Insurance Co. Ltd.
Dharmanagar Branch, P.S. Dharmanagar, District- North Tripura (Insurer of the
offending vehicle) Notice to be served upon the Divisional Manager, Agartala
Division, The Oriental Insurance Co. Ltd. H.G.B. Road (in between Post Office
Chowmuhani and Paradise Chowmuhani) P.S. West Agartala, District- West
Tripura
------Respondent(s)
For the Petitioner(s) : Mr. D.C.Roy, Adv.
Mr. Nirmal Choudhury, Adv.
For the Respondent(s) : Mr. K.Bhattachajree, Adv.
Date of hearing and
Delivery of judgment : 08.03.2021
Whether fit for hearing : No
BEFORE
HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY
Judgment and Order(Oral)
[1] Deceased Janardhan Kar, a mason by occupation was a
resident of Bangali Para in West Hawaibari within the jurisdiction of
Teliamura police station in Khowai District.
MAC App.10/2021
[2] On 7th October, 2016 at around 12.30 pm the deceased was
walking along the Assam Agartala road for going to the house of his
neighbor Bijay Rupini from Thangnaibazar. On the way, the offending
vehicle carrying registration No TR-02-G-1573 hit him from behind
and dragged him to a distance of about 100 meters and caused his
instantaneous death. The deceased was brought to Teliamura Rural
Hospital in a Fire-service vehicle where he was declared brought dead
and the postmortem examination report confirmed that the death
occurred due to injuries received from road traffic accident.
[3] FIR dated 07.10.2016 was lodged by Sri Pradip Kumar
Shome, an eye witness, and based on such FIR, Teliamura P.S. Case
No. 2016/ TLM 0082 under Sections 279 and 304(Part II) IPC and
Sections 183 and 184 MV Act was registered.
[4] Claim petition being TS(MAC)111 of 2017 was filed
before the Motor Accident Claims Tribunal (MACT No.5) at Agartala
in West Tripura Judicial District by the wife of the deceased, his sons
who were arrayed in the claim petition as claimants 2 and 3 and his
mother who joined as claimant No.4. The claimants prayed for
compensation of a sum of Rs.30,00,000/- with 9% interest thereon from
the date of filing of the petition.
MAC App.10/2021
[5] The claimants placed on record before the Motor
Accidents Claims Tribunal, the certified copy of the FIR(Exbt.1),
seizure list(Exbt.2), MVI report [Exbt.3], charge sheet[Exbt.4], post
mortem examination report[Exbt.5], death certificate of deceased
Janardhan Kar [Exbt.6], survival certificate of the claimants [Exbt-7.],
Aadhar card of the deceased[Exbt.8], Adhar card of the wife [Exbt.9],
Adhar card of the mother of the deceased [Exbt.10], Voter ID card of
the deceased[Exbt.11] and Madhyamik examination certificate of elder
son of the deceased [Exbt.12]. Besides adducing those documents, oral
evidence of the wife was also recorded at the tribunal as PW-1.
[6] On behalf of the respondents, copy of the Insurance
policy[Exbt.A], copy of the fitness certificate of the offending vehicle
[Exbt.B], copy of the registration certificate [Exbt.C] and copy of
driving license [Exbt.D], etc. were produced. This apart, respondent
no.1 i.e. the owner of the offending vehicle testified at the trial as
OPW-1. No oral evidence was adduced on behalf of the insurer
[respondent No.2].
[7] The MAC Tribunal vide award dated 04.06.2019 held that
the offending vehicle was involved in the accident and the accident
occurred due to rash and negligent driving.
MAC App.10/2021
[8] With regard to the claim of compensation, the tribunal
assumed that the deceased was an unskilled labourer and thus his
monthly income was assessed at Rs.6,000 (200 X 30 days).
[9] With regard to his age, the Tribunal relied on the Aadhar
card[Exbt.8] of the deceased where his date of birth was recorded as
01.01.1962. The accident occurred on 07.10.2016. Tribunal, therefore,
held that on the date of accident, the deceased was within the age group
of 50 to 60 years and the multiplier of 9(nine) was applied by the
Tribunal to assess the amount of dependency.
[10] The Tribunal also added 10% of the monthly income of
the deceased towards future prospect and with the addition of said 10%,
his monthly income came to Rs. 6600/- from which a deduction of ¼th
was made towards personal and living expenses of the deceased and
after such deduction his monthly income came to be a sum of Rs.4950/-
. Thus the total amount of dependency was taken at Rs.4950/- x 12 x 9
=Rs.5,34,600/- only and under conventional heads an amount of
Rs.40,000/- was awarded to the claimants towards loss of consortium,
Rs.15,000/- was granted for loss of estate and further sum of
Rs.15,000/- was awarded for funeral expenses. Thus the total
compensation came to be Rs.6,04,600/- and it was directed by the
Tribunal that the said amount of compensation would carry a simple
MAC App.10/2021
interest @6% per annum from the date of filing of the claim petition till
realization. Insurance Company [Respondent No.2] was directed to pay
the compensation within 30 days from the date of award.
[11] Aggrieved by and dissatisfied with the said award this
appeal has been filed by the original claimants for further enhancement.
[12] Heard Mr. D.C.Roy, learned Advocate appearing along
with Mr. Nirmal Chowdhury, Adv. for the claimant petitioners.
Also heard Mr.K.Bhattacharjee, learned counsel
representing the Insurance Company [Respondent No.2]
[13] Learned counsel for the appellants submits that even after
recording the date of birth of the deceased as 01.01.1962, the Tribunal
applied multiplier 9 which was completely erroneous. According to
Mr.Roy, learned counsel of the appellants, age of the deceased as on
07.10.2016 i.e. the date of his death was 54 and as per chart laid down
by the Apex Court in the case of Sarala Verma Vs. DTC reported in
(2009) 6 SCC 121 for the age group of 51 to 55 years multiplier 11 shall
apply which was also reflected in paragraph 12(a) of the award of the
Tribunal. But while applying the multiplier at the time of making the
assessment of compensation, the learned Tribunal erroneously applied
multiplier 9. It is therefore, submitted by the learned counsel of the
MAC App.10/2021
appellant that the claimants are entitled to enhanced amount of
compensation by application of multiplier 11.
[14] Further submission on behalf of the appellants is that the
findings of the Tribunal, with regard to the monthly income of the
deceased were not also fair and rational. It is submitted by the learned
counsel that the insurance company did not deny the fact that he was a
mason by occupation. According to learned counsel, the daily wages of
a mason in no case would be less than Rs.500/-. Finally it is submitted
by Mr.Roy, learned counsel of the appellants that the rate of interest
determined by the Tribunal is also on the lower side. According to
learned counsel, the Tribunal should have awarded at least 9% interest
on the award.
[15] Counsel appearing for the insurance company on the other
hand submits that the insurance company has already deposited the
whole amount of compensation before the Tribunal in terms of the
award passed by the Tribunal. According to Mr.Bhattacharjee, learned
counsel, the assessment of the Tribunal is rational and sound which
does not call for any interference.
[16] It is apparent from the record that the learned Tribunal
recorded the date of birth of the deceased as 01.01.1962 which is not
MAC App.10/2021
disputed by the other side. The accident occurred on 07.10.2016 and he
died at the spot. Therefore, he was 54 years old when he died.
[17] According to the chart laid down by the Apex Court in the
case of Sarala Verma(supra) multiplier 11 would apply in this case for
determining the compensation as the deceased was within the age
group of 51 to 55 years. It is true that the tribunal also held in
paragraph 12(a) of the impugned award that multiplier 11 will apply.
But wrong was committed at the time of assessment.
[18] With regard to the occupation and income of the deceased,
undisputedly the deceased was a mason. His wife Smt. Chhana Rani
Das(Kar) stated at the trial that her husband was in sound health who
used to earn Rs.13,500/- per month as a mason (Rajmistri). Obviously
no documentary evidence would be available in support of his income.
But it is a matter of common knowledge that daily income of a mason
would not be less than Rs.400/- per day. The deceased would not have
worked for all days in a month. Supposing that he would have worked
at least for 20 days in a month his monthly income would be Rs.400 x
20=Rs. 8000/-. The Apex Court in National Insurance Company Ltd. Vs.
Pranay Shethy & Ors. reported in (2017) 16 SCC 680 has held that in case
the deceased is self employed or a fixed salaried person, an addition of
10% would be added to his income where the deceased is between the
MAC App.10/2021
age of 50 to 60 years. Observation of the Apex Court in this regard in
paragraph 59.4 of the judgment is as follows:
"59.4. In case the deceased was self-employed or on a fixed
salary, an addition of 40% of the established income should
be the warrant where the deceased was below the age of
40 years. An addition of 25% where the deceased was
between the age of 40 to 50 years and 10% where the
deceased was between the age of 50 to 60 years should be
regarded as the necessary method of computation. The
established income means the income minus the tax
component."
[19] Therefore, with the addition of said 10%, his monthly
income comes to Rs.8800/- and his annual income comes to Rs.8800/-
x 12 = Rs.1,05,600/- which will be multiplied by 11. After applying
multiplier 11 the total amount of dependency comes to Rs.1,05,600/-
x11 = Rs.11,61,600/-. The deceased was married and the number of his
dependent family members was 4 including his mother, wife and 2
children In terms of Sarala Verma(supra) where the deceased is married
th
and members of his dependent family members is 4 to 6, ¼ of the
total amount of dependency would be deducted towards personal and
living expenses. After such deduction, the dependency in this case
comes to Rs.11,61,600 - 2,90,400/- = Rs. 8,71,200/-.
[20] Under the conventional heads the Tribunal has awarded
Rs.40,000/- for loss of consortium, Rs.15,000/- for loss of estate and
Rs.15,000/- for funeral expenses. In Pranay Shethy(supra), the Apex
MAC App.10/2021
Court held that in death cases compensation is awarded only under 3
conventional heads viz. loss of estate, loss of consortium and funeral
expenses and reasonable figure under such conventional heads would
be 15000/-, 40,000/- and 15,000/- respectively.
[21] The deceased has left behind his mother, wife and 2 sons.
Therefore, the following amount is awarded for loss of consortium:
i) Spousal consortium = Rs.40,000/-
ii)Parental consortium = Rs.40,000/- x 2=80,000/-
(for two sons)
[22] In the light of the above, the appellants are awarded
compensation as follows:
Loss of dependency =Rs.8,71,200/-
Funeral expenses =Rs.15,000/-
Loss of estate =Rs.15,000/-
Loss of spousal consortium = Rs.40,000/-
Loss of parental consortium
for two sons Rs.40,000/- x 2
= 80,000/-
Total Rs.10,21,000/-
The amount will carry 7% interest from the date of filing
of the claim petition.
[23] Other than the amount awarded for loss of consortium to the
wife and sons of the deceased, rest amount of compensation will be
divided into 4 equal share for the mother, wife and two sons of the
MAC App.10/2021
deceased. Sons' share will be kept in a fixed deposit in a nationalized
bank for a period of 5(five) years. Premature withdrawal from the fixed
deposit can be made only with the approval of the Tribunal under
exceptional circumstances like illness, education etc. of the children.
Share of the mother and wife will, however, be released in their favour.
[24] The Insurance Company will deposit the whole amount
before the tribunal after deducting the amount already deposited by
them within a period of 6 weeks from today.
The appeal is disposed of in terms of the above.
JUDGE
Saikat Sarma, P.A
MAC App.10/2021
