Tripura High Court

Smt. Suruchi Bhattacharjee vs Smt. Tripti Paul on 24 November, 2021

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                       HIGH COURT OF TRIPURA
                             AGARTALA
                         MAC App No. 03/2020
1.    Smt. Suruchi Bhattacharjee.
Mother of late Prajoy Bhattacharjee, resident of
Tuichindrai, P.O. - Hawaibari, P.S.- Teliamura, District-
Khowai, Tripura.

2.    Smt. Rama Bhattacharjee,
wife of late Prajoy Bhattacharjee, resident of
Tuichindrai, P.O. Hawaibari, P.S.- Teliamura, District -
Khowai Tripura.

3.    Smt. Susmita Bhattacharjee (minor),
daughter of late Prajoy Bhattacharjee, resident of
Tuichindrai, P.O.- Hawaibari, P.S.- Teliamura, District-
Khowai Tripura

4.    Sri. Prakash Bhattacharjee (minor),
son of late Prajoy Bhattacharjee, resident of
Tuichindrai, P.O.- Hawaibari, P.S.- Teliamura, District-
Khowai Tripura, (Claimant petitioners no. 3 and 4
being minors are represented by their mother i.e.
claimant petitioner no. 2)
                                                       ............... Appellant.

                                   Versus

1.    Smt. Tripti Paul.
wife of Sri Bipad Paul, resident of Gokulpur, Udaipur,
P.S. -R.K.Pur, District- Gomati Tripura, (earlier owner
of the offending vehicle bearing registration no. TR-03-
C-0569, Maruti Van)

2.     M/S General Insurance Company Limited,
Agartala Branch, located at 2nd Floor, Teensanghi
Akhaura Road, Krishnanagar, P.S.- West Agartala,
District -West Tripura (insurer of the offending vehicle
bearing registration no. TR-03-C-0569- Maruti Van vide
policy    no.   3362/00621714/000/00,       valid  upto
04.05.2012)

3.    Sri Maran Chandra Das,
son of late Jagadish Chandra Das, resident Of East
Gokulpur, Udaipur, P.S.- R.K,Pur, District -Gomati
Tripura, (present owner of the vehicle bearing
registration no. TR-03-C-0569- Maruti Van)

                                                  ............... Respondent(s).

MAC App. No.03/2020.

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BEFORE THE HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY For Appellant(s) : Mr. A. Nandi, Advocate.

For Respondent(s) : Mr. Mr. P. K. Ghosh, Advocate.

Mr. R. G. Chakraborty, Advocate.

Mr. S.K. Patari, Advocate.

      Date of hearing              :   15th September, 2021.

      Date of Judgment & Order :       24th November, 2021.

      Whether fit for reporting    :   NO.


                        JUDGMENT AND ORDER

This appeal under Section 173(1) of the Motor Vehicles Act,

1988, is directed against the judgment and award dated 3.5.2019 passed

by the learned Member, Motor Accident Claims Tribunal No.3, West

Tripura Judicial District, Agartala in TS (MAC) No. 260 of 2012.

[2] The case, in brief is that, on 06.02.2012 at about 7 „O‟ clock

in the evening, the deceased who is the son of appellant No.1, husband of

appellant No.2 and father of appellants No. 3 and 4 was walking along the

Assam Agartala road at a place called Howaibari within the jurisdiction of

Teliamura police station. At that time the offending Maruti Van bearing

registration No.TR-03-C-0569 came in a rash and negligent manner and

knocked him down from behind. As a result of the accident, the deceased

sustained grievous injuries and he was hospitalized. He was admitted in

A.G.M.C and G.B.P Hospital at Agartala where he was confined to bed for

about three months from 06.02.2012 to 04.05.2012. During the period,

he had undergone multiple surgeries. After his discharge from hospital,

the District Disability Medical Board certified that he suffered from 85%

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permanent locomotor disability. He filed a claim petition at the Tribunal

claiming compensation of a sum of Rs.10,00,000/- under Section 166

M.V. Act. During the pendency of his claim petition, he succumbed to his

injuries on 12.06.2014. As a result of the death of the claimant, his

mother, wife and his minor daughter and son were impleaded as

claimants.

[3] After the accident, wife of the deceased lodged FIR with the

Officer-in-Charge of Teliamura Police Station on 04.05.2012 which was

registered as Teliamura P.S Case No.50 of 2021 under Sections 279 and

338 IPC and the case was investigated by the police. Before the injured

died, police submitted final report for want of evidence. Concluding part

of the final report of the investigating officer is as under:

"Hence I do not think wise to drag the matter pending for more. Hence I do hereby submit Final Report, vide TLM PS FR No.17/12 dtd.31-08-12 u/s 279/338 IPC. The fact is true but wanting evidence in C/w the case. With a view to the case may be re-opened if the evidence comes in near future and thus obliged.

[4] While contesting the claim at the Tribunal the insurance

company (respondent No.2) took up usual defence stating that the claim

was exorbitant and the onus of proving the claim was strictly put on the

claimants.

[5] Respondent No.3, owner of the offending vehicle, also

claimed that the claim of compensation was exorbitant which was not

even supported by any document. The respondent also pleaded that

actual owner of the vehicle on the date of occurrence was Smti. Tripti MAC App. No.03/2020.

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Paul (respondent No.1) because he purchased the vehicle from Smt.

Tripti Paul on 20.3.2012 and on 06.02.2012 when the accident occurred

Tripti Paul (respondent No.1) was the owner of the vehicle. The

respondent therefore, denied his liability.

[6] Said Smt. Tripti Paul who was impleaded as respondent No.1

at the Tribunal. Notice of the case was issued to her but she did not file

any written response. In this regard, the tribunal had made the following

observation in paragraph-4 of its award.

"4. Initially the OP NO. 1 Smt Tripti Paul appeared before this Tribunal by executing one Vokalatnama in favour of Mr.Pramod Sahu, learned Advocate and by filing petition prayed for time to present her written statement but ultimately, the OP NO. 1 did not cooperate with her engaged learned counsel for which on 02.06.2015 Mr. P. Sahu, learned Advocate filed one petition expressing his intention to retire from this case and ultimately the said petition was accepted by this Tribunal vide order dated 13.07.2015. Thereafter, the claimant petitioners were directed to take necessary

Smt Tripti Paul but in spite of several opportunities the claimant petitioners did not file any requisite for issuance of notice to the OP NO. 1. Accordingly, this Tribunal by passing an order on 11.09.2017 closed the case against the OP NO. 1."

[7] On the basis of the pleadings of the parties, the learned

Tribunal had framed the following issues:

"(i) Whether claimant Prajoy Bhattacharjee sustained bodily injury in a vehicular accident which occurred on 06.02.2012 at Howaibari due to rash and negligent driving of the

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offending vehicle bearing registration No.TR- 03-C-0569.

(ii) Whether the claimant was entitled to compensation as prayed for. If so, up to what extent and who would be held liable to pay the compensation."

[8] After the injured claimant died of injuries during pendency of

the claim petition, the Tribunal did not recast the issues.

[9] During the trial claimants examined Smt. Rama

Bhattachajree, wife of the deceased as PW-1 and Dr. Dipti Bikash Roy, a

locomotor specialist of the District Disability Medical Board of West

Tripura as PW-2 and produced various documents including the death

certificate of the deceased, his disability certificate which was issued by

the District Disability Medical Board before his death, survival certificate

of the claimants etc. No evidence, oral or documentary was produced on

behalf of the respondents. They however, cross-examined the witnesses

of the claimants.

[10] Having appreciated the facts and circumstances of the case

and the evidence on record Tribunal held that the accident occurred due

to rash and negligent driving of the vehicle and Prajoy Bhattacharjee,

died of the injuries sustained by him in the said accident. The tribunal had

assessed monthly income of the deceased at Rs.5000/- and since the

deceased was stated to be 47 years of age at the time of his death,

multiplier 13 was applied in terms of the judgment of the Apex Court in

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the case of Sarla Verma(Smt.) and others Vrs. Delhi Transport

Corporation and Another: reported in (2009) 6 SCC 121 and loss of

dependency was thus worked out at Rs.5000 X 12 X13 = Rs.7,80,000/-.

Since the deceased was married and he had dependent family members,

/3rd of the said amount i.e., Rs.2,60,000/- was deducted towards

personal and living expenses of the deceased and, as such, the actual

loss of dependency was worked out at Rs.7,80,000 - 2,60,000 =

Rs.5,20,000/-. With the said amount Tribunal added Rs.40,000/- as loss

of consortium to the wife, Rs.25,000/- for funeral expenses and

Rs.10,000/- for loss of estate and the total compensation was computed

as under:

Sl.

                                Heads                  Amount
              No.
               1.      Loss of dependency            Rs.5,20,000/-
               2.      Loss of consortium to wife Rs.      40,000/-
               3.      For funeral expenses          Rs.   25,000/-
               4.      Loss of estate                Rs.   10,000/-
                                        Total:       Rs.5,95,000/-

Tribunal also awarded 6% annual interest on the said amount

from the date of presentation of the claim petition till disbursement.

[11] Challenging the said award, Mr. A. Nandi, learned counsel

appearing for the claimants has vehemently argued that Tribunal did not

follow the settled principle in determining the compensation. Counsel

submits that Tribunal did not also give any compensation towards future

prospect of the deceased. Moreover, the Tribunal assessed the monthly

income of the deceased at a meagre sum of Rs.5000/- which was quite MAC App. No.03/2020.

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unjust and unreasonable because even the monthly income of an

unskilled day labourer was more than that amount. Counsel therefore,

urges the Court to award a just and appropriate amount of compensation

to the claimants.

[12] Mr. P. K. Ghosh, learned counsel appearing for the

respondent insurance company on the other hand argues that the present

petition was filed by the deceased himself for compensation for personal

injury suffered by him. Since he died natural death during pendency of

the case, the case stood abated after his death and the claimant

appellants were not entitled to any compensation arising out of such

death. In support of his contention, counsel has relied on the decision of

Gauhati High Court in Sipra Bhowmik & another Vrs. Soumendra Ch.

Saha & others: reported in 2012 (2)GLT 766. Mr. Ghosh, learned

counsel also submits that even otherwise the Tribunal awarded

compensation more than the claimant deserved and there is no reason to

interfere with the award of the Tribunal.

[13] In so far as the first contention of the counsel of the

respondent insurance company is concerned, the contention is not

acceptable because it is clearly held by the Tribunal after appreciation of

evidence that Prajoy Bhattacharjee died of the injuries received from the

accident. In the aforesaid decision of Gauhati High Court which has been

relied on by the counsel of the respondent insurance company, the only

question which arose before the Court was whether in a case where the

claimant petitioner who claimed compensation under the M.V. Act for

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personal injury suffered by him, died during pendency of the claim, not in

consequence the injury suffered by him due to motor vehicle accident,

but for some other cause, his successors/legal representatives continue

with the claim case for compensation. This court decided the issue in the

negative and held that in such cases the suit would stand abetted and the

appellant would have no right to proceed. In the given case there is no

challenge to the decision of the Tribunal that deceased who brought the

claim at the Tribunal under Section 166 M.V. Act for personal injury

suffered by him died in consequence of the injuries suffered by him in the

accident. In these circumstances, the respondent insurer cannot derive

any benefit from the said judgment of this High Court.

[14] We may now proceed to examine as to whether the

compensation awarded by the Tribunal is just and appropriate. A duty is

cast on every Tribunal to award a just and reasonable compensation in

such cases by adopting equitable principles and reasonable approach for

determination of compensation. In this regard, in case of Yadava Kumar

Vs. Divisional Manager, National Insurance Company Ltd. & Anr.

reported in (2010) 10 SCC 341, the Hon‟ble Apex Court has held as

under:

"15. It goes without saying that in matters of determination of compensation both the tribunal and the court are statutorily charged with a responsibility of fixing a "just compensation". It is obviously true that determination of a just compensation cannot be equated to a bonanza. At the same time the concept of "just compensation"

obviously suggests application of fair and equitable principles and a reasonable approach on the part of the tribunals and courts. This reasonableness on the part of the tribunal and the court must be on a large peripheral field. Both the courts and the tribunals in the matter of this MAC App. No.03/2020.

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exercise should be guided by principles of good conscience so that the ultimate result becomes just and equitable (see Helen C. Rebello Vs. Maharastra SRTC AIR 1998 SC 3191)"

[15] At the time of his death, the appellant was a Tea stall owner

and a Tribunal held that monthly income of a Tea stall owner would not

be less than Rs.5,000/- when the deceased died. Tribunal therefore,

assessed his annual income at Rs.60,000/- at the rate of Rs.5,000/- per

month and by applying multiplier 13 Tribunal worked out the loss of

dependency at Rs.7,80,000/-. From which /3rd was deducted for his

personal and living expenses and the actual loss of dependency was

worked out to be Rs.5,20,000/-. Approach of the Tribunal is not correct

because, the mother, wife and two school going children were his

dependant family members and none of them had any income. The whole

family depended on the income of the deceased since they had no other

source of income. Therefore, it was quite unlikely that the deceased

would be able to run his family consisting of five members with a monthly

income of Rs.5000/- only. Moreover, presumably, the monthly income of

a person having a Tea stall at the road side would not be less than

Rs.9000/-. Therefore, the Tribunal should have assessed the monthly

income of the deceased at least Rs.9000/- in absence of any document

adduced on behalf of the claimants with regard to the income of the

deceased. Since the deceased was a self employed person and he was

between the age of 40 to 50 years, an addition of 25% of his monthly

income would be made towards future prospect in terms of the decision

of the Apex Court in the case of National Insurance Company Limited

Vrs. Pranay Sethi and others; reported in (2017) 16 SCC 680 and MAC App. No.03/2020.

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thus his monthly income is worked out at Rs.9000 X 25% = 9000 + 2250

= 11250/-. Since the deceased was 47 years old at the time of his death

arising out of the accident, multiplier 13 would apply in terms of the

decision of the Apex Court in case of Sarla Verma(Supra). Applying the

multiplier 13, loss of dependency is worked out at Rs.11250 X 12 X 13 =

Rs.17,55,000/-. /4th of the said amount i.e. Rs.4,38,750/-would be

deducted towards personal and living expenses of the deceased in terms

of the decision of the Apex Court in the case of Sarla Verma(Supra)

because the number of dependent family members of the deceased was

four. After such deduction the actual loss of dependency comes to

Rs.17,55,000 - 4,38,750 = Rs.13,16,250/-.

[16] The Tribunal erroneously awarded compensation for loss of

consortium only to the wife. Old mother of the deceased and his two

minor children are also entitled to consortium at the rate of Rs.40,000/-

per head. Therefore, the claimants would be entitled to consortium of an

amount of Rs.40,000 X 4 = Rs.1,60,000/-. With this amount Rs.15,000/-

for funeral expenses and Rs.15,000/- for loss of estate would be added

and the total compensation payable to the claimants would be as under:

Sl.

                                 Heads                      Amount
                No.
                1.        Loss of dependency          Rs.13,16,250/-
                2.        Loss of consortium          Rs. 1,60,000/-
                3.        For funeral expenses        Rs.    15,000/-
                4.        Loss of estate              Rs.    15,000/-
                                           Total :    Rs.15,06,250/-




MAC App. No.03/2020.
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[17]         The said amount would carry 7% annual interest from the

date of presentation of the claim till disbursement. The insurance

company is directed to deposit the whole amount of compensation with

the interest accrued thereon with the Registry of this Court within a

period of 8 weeks from today. The claimants will be entitled to equal

share of this compensation. The whole share of the two minor children of

the deceased would be invested in a term deposit in a nationalised bank

for a period until they attain majority. Monthly income generated from

the said deposit would be spent for education and other needs of the

children. The share of the mother of the deceased would also be invested

in term deposit for a period of five years and the monthly income

generated from such investment would be deposited in the individual

bank account of the said claimant for her personal and living expenses.