High Court Of Tripura vs Sri Biswajit Debbarma
2021 Latest Caselaw 1152 Tri

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                       HIGH COURT OF TRIPURA
                             AGARTALA
                         MAC App No. 24/2021
The Oriental Insurance Company Ltd.
Represented by the Divisional Manager, Agartala Division
Office, H.G.B. Road, (Near Sarkar Nursing Home),
Agartala, West Tripura.
                                                  ............... Appellant.
                                 Versus
1.    Sri Biswajit Debbarma.
S/O.- Sri Lahiram Debbarma,

2.    Sri Lahiram Debbarma,
S/O.- Late Chandra Kr. Debbarma,
Both are resident of Shyamalibazar, Back side of Fire
Service Station, P.S.- NCC, Agartala, District- West
Tripura.
                                      ............... Claimant-Respondent(s).

3. Sri Promod Paul, S/O.- Late Prafullya Kr. Paul, of village and P.O.- Santirbazar, Avanga, District- Dhalai, Tripura, Pin- 799286. --(Attorney)--.

4. Sri Amar Paul, S/O.- Sri Promod Paul, of village and P.O.- Santirbazar, Avanga, District- Dhalai, Tripura, Pin- 799286. (Owner of the vehicle No.- TR-04-B-0534, Alto Car).

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

5. Smt. Manalaxmi Debbarma, D/O.- Sri Lahiram Debbarma,

6. Sri Ram Charan Debbarma, S/O.- Sri Lahiram Debbarma,

7. Sri Naba Kumar Debbarma, S/O.- Sri Lahiram Debbarma,

8. Sri Purna Chandra Debbarma, S/O.- Sri Lahiram Debbarma,

9. Smt. Biramala Debbarma, D/O.- Sri Lahiram Debbarma, (Sl. No.- 5 to 9 are permanent residents of Srirampur, Durga Chowmohani Block, Manikbhandar, Kamalpur, Dhalai, Tripura Pin- 799287).

............... Proforma-Respondent(s).

MAC App. No.24/2021.

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BEFORE THE HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY For Appellant(s) : Mr. B. Majumder, Advocate. For Respondent(s) : Mr. T. D. Majumder, Sr. Advocate.

Mr. S. Roy, Advocate.

Mr. Samar Das, Advocate.

      Date of hearing              :   24th September, 2021.

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

      Whether fit for reporting    :   NO.


                        JUDGMENT AND ORDER

The Oriental Insurance Company Limited, being appellant,

has filed this appeal under Section 173(1) of the Motor Vehicles Act, 1988

challenging the legality and propriety of the judgment and award dated

21.01.2021 passed by the Motor Accident Claims Tribunal (Tribunal No.5)

of West Tripura Judicial District, Agartala in TS(MAC) 83 of 2018 whereby

the learned Tribunal awarded a sum of Rs.15,29,000/- as compensation

along with 6% annual interest to the claimants owing to the death of

Smti. Dhanapati Debbarma in a road traffic accident which occurred on

28.01.2018 at Halahali in Dhalai Judicial District.

[2] The factual context of the case is as under:

Smti. Dhanapati Debbarma, mother of claimant-respondent

No.1 and wife of claimant-respondent No.2 was travelling to Halahali from

her home on a Tom-Tom (a three wheeler run on battery) from Manik

Bhander for treatment of her claimant-husband, Lahiram Debbarma. On

the way, the offending vehicle (Maruti Alto car) bearing registration

No.TR-04-B-0534 hit their Tom-Tom from the opposite direction. As a

MAC App. No.24/2021.

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result, deceased Dhanapati and her husband Lahiram Debbarma slipped

from the vehicle and received fatal injuries. They were rescued by the

local people and taken to BSM Hospital at Kamalpur. The deceased was

referred to Kulai Hospital and from there to the A.G.M.C and G.B.P

Hospital at Agartala where she succumbed to her injuries on the following

day.

[3] On 01.02.2018 Sri Biswajit Debbarma, son of the deceased

lodged a written complaint with the Officer-in-Charge of Kamalpur police

station alleging that on 28.01.2018 at about 3.30 p.m. when his mother

Dhanpati Debbarma accompanied by his father Lahiram Debbarma was

going from Manikbhander to Halahali on a Tom-Tom, the offending

vehicle hit the Tom-Tom from opposite direction, as a result of which his

parents received injuries and subsequently his mother succumbed to her

injuries at A.G.M.C and G.B.P Hospital at Agartala on 29.01.2018. He

alleged that the accident occurred due to rash and negligent driving of

the offending vehicle. About three days delay in lodging the FIR, he

explained that since he was busy in the treatment and post death ritual of

his late mother he could not lodged the FIR immediately.

[4] Kamalpur P.S Case No.18 of 2018 under Sections 279, 338

and 304A IPC was registered on the basis of the FIR lodged by the son of

the deceased and investigation was taken up. After investigation police

submitted Charge Sheet No.86 of 2018 dated 31.10.2018 against the

driver of the offending vehicle for having committed offence punishable

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under Sections 279, 338 and 304A IPC and Sections 184, 187 and 190(ii)

M.V. Act, 1988.

[5] Biswajit Debbarma, son of the deceased and his father

Lahiram Debbarma filed an application under Section 166 of the Motor

Vehicles Act, 1988 before the Tribunal claiming compensation of a sum of

Rs40,00,000/- for the death of Smt. Dhanapati Debbarma in a road traffic

accident due to rash and negligent driving of the offending vehicle. In the

course of trial two daughters and three other sons of the deceased were

also added as proforma respondents in the claim petition.

[6] The proforma respondents who were the daughters and sons

of the deceased also submitted a written statement contending that the

deceased was survived by two daughters and four sons. But except the

claimant son namely, Biswajit Debbarma and their claimant father,

Lahiram Debbarma none of them was dependent of their mother. They

were living separately along with their own family.

[7] The respondent-insurance company (appellant herein)

contested the claim by filing written objection. It was mainly pleaded by

the insurance company that the compensation claimed by the applicant

was exorbitant. It was also pleaded that the insurance company would

not be liable to pay any compensation unless a valid insurance policy was

produced and its currency was proved by the owner of the offending

vehicle.

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[8] By filing separate written objection, owner of the offending

vehicle claimed that his vehicle was insured with the oriental insurance

company limited (respondent No.3) and the insurance policy was in force

at the time of the accident. The owner also claimed that the accused

driver had a valid driving licence at the time of accident and registration

of the vehicle and all other documents were in operation. Therefore, the

insurance company was liable to pay the compensation.

[9] In the course of trial, claimant respondent, Biswajit Debbarma

examined himself as PW-1 and their neighbour Shyamal Debbarma as

PW-2. On behalf of the respondents, owner of the offending vehicle was

examined as OPW-1. The certificate of registration of vehicle, insurance

policy of the vehicle, tax token, driving licence of the driver of the

offending vehicle and the power of attorney were exhibited and marked

as Exbt.- A, B, C, D and E respectively.

[10] The Motor Accident Claims Tribunal after considering oral and

documentary evidence on record arrived at the conclusion that the

accident occurred due to rash and negligent driving of the offending

vehicle, as a result of which Smt. Dhanapati Debbarma died. Tribunal

held that on the date of occurrence the insuance policy (Exbt. B) was in

force and, therefore, directed the insurance company to pay

compensation of a sum of Rs.15.29,000 with 6% annual interest from the

date of presentation of the claim petition till realisation.

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[11] The appellant insurance company has challenged the said

award of the Tribunal mainly on the following grounds:

(i) Tribunal did not follow the settled principles of determination of compensation.

(ii) Tribunal did not appreciate the fact that the deceased had no income at all and none of the claimants were her dependants.

(iii) Tribunal did not also consider the fact that the owner of the offending vehicle committed breach of the conditions of the insurance policy because the driver did not have a valid driving licence at the time of the occurrence.

(iv) The Tribunal committed error by holding that the deceased had a monthly income of Rs.15,000/- without any documentary support.

[12] Heard Mr. B. Majumder, learned advocate appearing for the

appellant insurance company and Mr. T. D. Majumder, learned Sr.

advocate appearing along with Mr. S. Roy, learned advocate for the

claimant-respondents and also heard Mr. Samar Das, learned advocate

appearing for the owner of the offending vehicle.

[13] It has been argued by Mr. B. Majumder, learned counsel of

the appellant-insurance company that without any documentary proof

Tribunal erroneously assessed the monthly income of the deceased at Rs.

15,000/-. Counsel submits that admittedly the deceased was 59 years old

but the Tribunal erroneously applied multiplier 11 which is applicable for

the age group of 51 to 55 years. Counsel submits that at the age of 59 it

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was not possible for the deceased to earn Rs.15,000/- per month,

particularly when she had no fixed income. It is also contended by Mr.

Majumder, learned counsel that /3rd deduction towards personal and

living expenses was also completely erroneous because admittedly the

deceased was survived by her husband and four sons and two daughters.

Counsel therefore, urges for recomputation of amount of compensation as

per settled procedure.

[14] Mr. T. D. Majumder, learned Sr. advocate on the other hand

contend that there is no illegality in the award granted by the Tribunal

and therefore, the award does not call for any interference in appeal.

[15] The basic facts that the offending vehicle was insured with the

appellant and insurance policy was in force on the date of occurrence and

the facts that the accident occurred due to rash and negligent driving and

Smt. Dhanapati Debbarma died in the accident are not denied. Therefore,

there cannot be any controversy as to the entitlement of the legal

representatives of deceased Dhanapati Debbarma to compensation under

Section 166 of the M.V. Act, 1988. It would appear from the petition filed

by the claimants at the Tribunal that the deceased was stated to be 55

years old at the time of occurrence. Her son Biswajit Debbarma also

stated in his examination-in-chief that his mother was 55 years old while

she died. Since claimant, PW-1 deposed in his oral testimony that his

deceased mother was 55 years old and his statement was not rebutted in

cross-examination tribunal held that the deceased was of 55 years old at

the time of her death. But the documents submitted on behalf of the

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claimants speak otherwise. In the death certificate (Exbt.1) issued by the

Registrar (Birth and Death), the deceased was stated to be 59 years of

age. Certificate of the Registrar (Birth and Death) is based on records

which cannot be ignored. Tribunal who have relied on this document and

applied the multiplier of 9 instead of 11 as the deceased was in the age

group of 56 to 60 years. Moreover, there is no documentary proof as to

the monthly income of the deceased. With regard to income of the

deceased, Tribunal held as under:

"10. *******It has been asserted that the deceased was a singer by profession and she also used to weave ' Pasra' for business purpose and it used to be sold throughout north-eastern region. This fact too was not disputed by the opposite parties while cross-examining the witnesses of the claimant petitioners but, only because there was no dispute in regard to the said, Is it that, it has to be believed in absence of any supporting documents. PW- 2 stated that his daughter used to take singing classes from the deceased and he used to pay an amount of Rs. 500/- per month and that she had at least 100 students. No document or Register in this aspect, has been submitted by the claimant petitioners and in absence of such, how can it be believed that this version is true. There is no evidence of any type that the deceased used to weave 'pasra' and sell it throughout the north-eastern region. No evidence has been led to the fact that the deceased had weaving machine or there were many weavers working with her. No evidence have also been led to the fact that those pachra's were sold to any business organization or shop or to any individual throughout the north-eastern region.

When it is said that the pachra's were sold throughout the north-eastern region, it can be presumed that she was having a bulk production and it was quite famous, if it is so, then how come there is not a single drop of evidence in this aspect. Having said so, I do not find this contention of the claimant petitioners to be true.

However, taking the fact that she was a singer by profession and used to give lessons to many students on singing it can be presumed that she

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was modestly earning at least Rs. 15,000/- per month."

[16] It would appear from the above observation of the Tribunal

that Tribunal did not accept the claim that deceased was an artisan who

used to weave traditional attire of tribals. However, the Tribunal believed

that she used to earn Rs.15,000/- per month by giving tuition in singing.

Findings of the Tribunal do not appear to be logical and acceptable.

However, considering the fact that her husband was a paralytic and there

was no earning member in the family, the petitioner was under

compulsion to earn for maintaining her family. Her monthly income is

taken to be 400/- per day. Presuming that she would work for 25 days in

a month, her monthly income would come to Rs.10,000/-.

[17] In view of the above, loss of dependency would be Rs.10,000

X 12 X 9 = Rs.10,80,000/-. Since the deceased was survived by her

husband, four sons and two daughters /5th of the amount would be

deducted towards personal and living expenses of the deceased and thus

the actual loss of dependency would come to Rs.8,64,000/-(Rs.10,80,000

- 2,16,000). Since the deceased was a self employed person and she was

between the age of 50 to 60 years, an addition of 10% would be made for

future prospect in terms of the direction of the Hon'ble Supreme Court in

National Insurance Company Limited Vrs. Pranay Sethi and

others; reported in (2017) 16 SCC 680 and thus the amount would

come to Rs.8,64,000 + 86,400 = Rs.9,50,400/-. With this amount

Rs.40,000/- would be added as loss of consortium for the husband of the

deceased. Moreover, the claimants will be entitled to Rs.15,000/- for loss MAC App. No.24/2021.

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of estate and Rs.15,000/- for loss of funeral expenses. Thus, the total

amount of compensation would come to Rs.10,20,400/-. Accordingly, a

fresh computation of compensation is made which is as under:

              Sl.              Heads                      Amount
              No.
              1.       For loss of dependency       Rs.9,50,400/-
              2.       For loss of consortium       Rs.   40,000/-
              3.       Loss of estate               Rs.   15,000/-
              4.       For funeral expenses         Rs.   15,000/-
                                        Total :     Rs.10,20,400/-



[18]         The said amount of Rs.10,20,400/- will carry 7% annual

interest from the date of presentation of the claim petition at the Tribunal

until payment. The whole amount shall be distributed among the

husband, four sons and two daughters who are on record in equal share.

The appellant shall deposit the amount with the Registry of this High

Court within six weeks from today, which shall be disbursed to the

claimants by the Registry on verification of their identity. The amount

already deposited by the appellant, if any, shall be adjusted.

[19] In terms of the above, the appeal is disposed of. Pending

application(s), if any, shall also stand disposed of.

Send down the L.C record.

JUDGE

Dipankar

MAC App. No.24/2021.