Tripura High Court
The Oriental Insurance Company ... vs Smt. Sudhipa Das @ Sudipa Das on 29 September, 2021
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HIGH COURT OF TRIPURA
AGARTALA
MAC App. No. 26/2021
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. Smt. Sudhipa Das @ Sudipa Das,
Daughter of Sri Niranjan Das of village
Jagaharimura, Near Kalibari, P.S- East Agartala,
District : West Tripura.
............... Claimant-Respondent.
2. Sri Suman Das,
Son of Sri Niranjan Das of village
Jagaharimura, Near Kalibari, P.S- East Agartala,
District : West Tripura.
(Owner of the vehicle No. TR-010J-9364, Bajaj Pulser)
............... Respondent.
BEFORE
THE HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY
For Appellant(s) : Mr. Biswanath Majumder, Adv.
For Respondent(s) : Mr. Alik Das, Adv.
Date of hearing : 31st August, 2021.
Date of Judgment & Order : 29th September, 2021.
Whether fit for reporting : NO.
JUDGMENT AND ORDER
By means of filing this appeal under Section 173(1) of the
Motor Vehicles Act, 1988 the appellant Insurance Company has
challenged the award dated 27.01.2021 passed by the Motor Accident
Claims Tribunal (Court No.2), West Tripura, Agartala awarding
compensation of a sum of Rs. 10,00,000/- (Rupees ten lakhs) with 9%
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annual interest to Smti Sudipa Das (respondent No.1 herein) for the
injury and loss suffered by her in a road traffic accident which occurred
on 19.08.2014 at Agartala. Said compensation was awarded by the
Tribunal under the following heads:
Sl. Amount
Heads
No.
1. For cost of treatment Rs. 5,00,000/-
2. For transportation Charges Rs. 1,00,000/-
3. For pain and suffering Rs. 2,00,000/-
4. For mental shock and agony Rs. 2,00,000/-
Total : Rs.10,00,000/-
Tribunal also awarded 9% annual interest on the said amount
from the date of presentation of claim petition before the Tribunal till
disbursement of compensation.
[2] Appeal has been filed by the insurance company mainly on
the following grounds:
(i) Tribunal did not take care of the settled principles for
determination of compensation payable to claimant
respondent No.1.
(ii) Tribunal did not appreciate the evidence particularly
cross examination of the claimant and thereby arrived at an
erroneous finding with regard to the liability of the appellant
insurance company.
(iii) The Tribunal erroneously allowed the claim only on the
basis of a G.D Entry.
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(iv) No FIR was lodged after the accident and no police
investigation was done. Tribunal's award is thus grossly
erroneous and liable to be set aside.
(v) The Tribunal did not consider the fact that the claimant
respondent was a pillion rider on the motor bike of his brother
and the accident occurred due to rash and negligent driving of
the said motor bike. It being a case of contributory negligence
owner of the motor bike is liable to pay compensation.
(vi) Tribunal did not scrutinize the medical reports, bills and
prescriptions while granting an exorbitant amount of
Rs.5,00,000/- towards the cost of treatment of the claimant
and the Tribunal did not also consider the fact that some of
those bills related to treatment prior to the accident.
[3] Heard Mr. Biswanath Majumder, learned advocate appearing
for the appellant insurance company and also heard Mr. Alik Das, learned
advocate appearing for the claimant respondent. Counsel have made
detailed submissions with regard to their respective claims.
[4] The bare facts which are essential to appreciate the challenge
are as under:
Claimant, Ms. Sudipa Das was going to Tripura University at
Surjya Mani Nagar from her home at Jagaharimura on 19/08/2014,
morning on a Bajaj Pulser motorbike bearing registration No.TR-01-J-
9364 driven by her brother. The bike was being driven by her brother
rashly and negligently. As a result, when a street dog appeared in front of
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the bike, his brother could not control the speeding bike and as a result,
both of them slipped from the bike and the claimant received fatal head
injuries whereas her brother was saved who received some minor
injuries. They were rescued and brought to IGM Hospital at Agartala by
the local people. From there, the claimant was taken to AGMC and G.B.P
Hospital. She was then brought to ILS Hospital on the same day. From
ILS Hospital she was taken to a super speciality hospital in Kolkata where
she received treatment as an indoor patient from 20.08.2014 to
13.09.2014. She had undergone a brain surgery in the said hospital at
Kolkata. Two months after her discharge from the said hospital, she again
fell ill and got admitted in the hospital on 23.11.2014. She was
discharged on 27.11.2014. As a result of the accident, she developed
speech disorder. She, therefore, filed a claim petition under Section 166
M.V Act at the Tribunal claiming compensation of a sum of
Rs.79,40,000/-. She impleaded her brother, Suman Das, owner of the
offending motor bike as respondent No.1 and the insurance company as
respondent No. 2.
[5] The appellant insurance company filed written statement of
defence at the Tribunal wherein the insurance company pleaded that it
would not be liable to pay any compensation to the claimant unless the
original insurance policy of the offending vehicle and a valid driving
licence of respondent No.1 were produced by the claimant. It was further
pleaded by the appellant insurance company that the amount of
compensation claimed by the claimant petitioner was exorbitant and
baseless.
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[6] The owner of the motor bike (respondent No.1) in his written
statement of defence admitted the accident and claimed that his motor
bike skidded on the road when he tried to save a dog which suddenly
appeared in front of his bike near Sarkar Nursing Home at Agartala. As a
result, they slipped from the bike and his sister received fatal injuries in
her head. He claimed that his vehicle was insured with the appellant
insurance company and he had a valid driving licence and all other
documents of his motor bike were also valid. He supported the claim of
his sister.
[7] In the course of trial, Tribunal framed the following issues:
(i) Whether the claimant received any injury from the road
traffic accident which allegedly occurred on 19/08/2014 at
about 9.30 am as a result of rash and negligent driving of
motor bike bearing registration No. TR-01-J-9364?
(ii) Whether the claimant was entitled to any compensation
for the injury suffered by her and if so, what would be a fair
amount of compensation?
(iii) Whether the claimant was entitled to any other relief?
[8] In support of her claim, claimant respondent adduced her oral
evidence as PW-1 and produced documentary evidence which were
exhibited and marked as Exbts.1 - 10. The respondent owner also
appeared as OPW-1 and produced the registration certificate of his motor
bike, its insurance policy, his driving licence and tax token of his motor
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bike which were marked and exhibited as Exhibits A,B,C and D
respectively.
[9] On appreciation of evidence Tribunal held that the accident
occurred as a result of rash and negligent driving of the motor bike in
which the claimant received fatal injuries. She received treatment in
various hospitals within and outside the State and incurred huge medical
expenses which was supported by proper bills and receipts. The Tribunal
also held that she suffered from enormous pain and sufferings as a result
of the accident and she also received serious mental shock and agony due
to brain surgery for which Tribunal granted compensation to her.
[10] In the course of his arguments Mr. Biswanath Majumder,
learned counsel of the appellant has mainly contended that the Tribunal
should not have granted compensation to the claimant only on the basis
of a G.D. Entry made at the police station. Counsel contends that no FIR
was lodged and no investigation was done to ascertain as to whether the
accident occurred as a result of negligent driving of the offending vehicle.
Therefore, Tribunal should not have passed an award of compensation in
favour of the claimant respondent. Counsel for the appellant has relied on
the decision dated 24.07.2018 of the Gauhati High Court in W.P(C)
No.5328 of 2017 (ICICI Lombard General Insurance Company Ltd.
Vrs. The State of Assam and others) when the High Court while
considering a similar issue examined various decisions of the Apex Court
and directed the Director General of Police, Assam to issue general
instructions to all police stations in the State of Assam to register FIRs
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after making GD Entry on receipt of information relating to road accident
and thereafter submit Accident Information Report (AIR) to the
jurisdictional Tribunal within 30(thirty) days of registration of FIR. With
regard to the pending claim petition on the basis of a G.D entry, the
Gauhati High Court observed as under:
"19. In so far the claim cases already pending before the
Tribunals, which have been registered on the basis of
GD Entries, Court is of the view that having regard to
the beneficial nature of the legislation, i.e., the Act, it
would be wholly inequitable to direct remand of those
claim petitions to the concerned police stations. As
discussed above, under Sections 168 and 169 of the Act,
the Tribunal has got ample powers to verify the
genuineness of the claims. That apart, insurance
companies, like the petitioner in the present case, have
also enough opportunities in such proceedings to point
out before the Tribunals, in case there is any collusion or
in case any false claim is made. It is the duty which is
vested in the insurance companies and it is expected
that having regard to the beneficial objective of the
statute, insurance companies will discharge their duties
in the true spirit of the Act, so that genuine claim
petitions are not frustrated and are disposed of at the
earliest, giving at least some solace to the victims of
road accidents and family members of deceased."
[11] Mr. Biswanath Majumder, learned counsel of the appellant
further submitted that apart from the facts that the claim petition was
erroneously entertained and an unreasonable amount of compensation
was granted, tribunal awarded an exorbitant rate of interest. Learned
counsel under the premises aforesaid urges for setting aside the award of
the Tribunal.
[12] Mr. Alik Das, learned counsel appearing for the claimant
respondent opposes the contentions of the counsel of the appellant.
Counsel submits that a motor accident claim case is in the nature of a
civil suit and the standard of proof required in such case is the
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preponderance of probability. Counsel has relied on the decision of this
High Court in Rampati Chakma Vrs. Sunil kumar Ram and Ors.
reported in (2016)2TLR 975 wherein it was held by this High Court
that motor accident claim case is in the nature of a civil suit and
certainly not a criminal case. In paragraph-9 of the said judgment a
decision of the Madhya Pradesh High Court in R.P. Gautam Vrs. R.N.
M Singh and Another: reported in AIR 2008 MP 68 was referred to
wherein the Madhya Pradesh High Court has held as under:
"13. It is settled proposition of law that every civil case
is decided on it's own facts and evidence without
influencing the papers and decision of the criminal case.
In such premises registration of the offence and police
investigation is not a condition precedent for awarding
the claim. Besides this due to one reason or another if
the first information report of vehicular accident is not
lodged with the police or the same was given at later
stage and police neither registered the offence nor
investigated the same, it does not mean that right of the
victim for compensation who suffered the vehicular
accident is washed away. The victim remains entitled for
compensation on proving the facts and circumstances
regarding such accident and factum of injuries sustained
by him, he could not be deprived from such right,
provided by the Motor Vehicles Act, although such
compensation may be awarded only on proving all
relevant facts with all probabilities."
[13] Counsel submits that in the given case also, the accident was
reported to police immediately after the occurrence and the said
information was recorded in the general diary of the police station vide
West Agartala P.S G.D Entry No.887 dated 8.2.2015 (Exbt. 8). While
lodging the information with the officer-in-charge of West Agartala P.S,
claimant furnished the details of the occurrence and requested a police
investigation in the matter. Counsel submits that for inaction of police,
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her claim cannot be defeated. Counsel urges the Court to dismiss the
appeal.
[14] I have carefully perused the submissions of the counsel made
at the Bar. Perused the award of the Tribunal and the oral and
documentary evidence on the basis of which said award has been passed
by the Tribunal. With regard to the submission of the counsel of the
appellant that Tribunal earred in entertaining the claim simply on the
basis of a G.D. Entry, I find no merit in the said contention of the counsel
of the appellant. It would appear from the factual narrative of the
information furnished by the claimant at the police station that she gave
full details of the occurrence. It would be apposite to reproduce the said
information lodged by the claimant at the police station which is as
under:
"To
The Officer-in-charge,
West Agartala P.S,
Agartala, West Tripura.
Sub : Prayer for enquiry regarding the Road
Traffic Accident which took place on
19.8.2014 at about 09.00 a.m. in front of
Sarkar Nursing Home on HGB Road,
arising out of use of motor cycle bearing
Regn.No.TR01-J-9364(Bajaj Palsar).
Sir,
With reference to the above, I am to inform you
that on 19.8.2014 in the morning I was on way to Battala
by boarding in the motor cycle of my brother Sri Suman
Das from our residence through the HGB Road at about
09.00 a.m. and reached in front of B. R. Sarkar Nursing
Home, at that time all on a sudden , a street dog came in
front of our bike. My brother tired to control the bike but
due to speed he was not in a position to control the
motor bike. Due to sudden pulling of break both of us fell
down from the bike on the road. I received severe head
injury and my brother received simple injury. I became
senseless. The local people along with my brother shifted
me to IGM Hospital and from there, to GBP Hospital and
admitted there as an indoor patient on the same day.
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Then I was shifted to ILS Hospital. Thereafter considering
the gravity of the injury, I was shifted to Kolkata on
20.8.2014 and admitted in Medica Super Specialty
Hospital till 13.9.2014. I came back to Agartala on
13.9.2014. I have again visited the Medica Super
Specialty Hospital and admitted there as an indoor
patient on and from 23.11.2014 to 27.11.2014.Till today
my treatment is going on.
So, I am requesting you kindly make necessary
investigation and oblige me thereby.
Dated, 08.02.2015.
Yours faithfully
Sd/-
(Sudipa Das)
D/o Sri Niranjan Das,
Jagaharimura,
P.O. Agartala College,
Agartala, West Tripura."
[15] It was the duty of the police to undertake investigation to
verify the truth of her complaint and submit an Accident Information
Report (AIR) at the Tribunal. She was not supposed to wait for an
investigation report to lodge her claim at the Tribunal. Her claim cannot
be defeated simply for the reason that there was no police investigation
in the matter. It has been settled that once the functional fact, namely,
the actual occurrence of the accident, has been established, role of the
Tribunal is to calculate compensation if the accident had taken place due
to negligence of the driver of the vehicle. In the present case driver of the
motor bike was the brother of the claimant. In her examination-in-chief
the claimant in paragraph-3 of her statement asserted as under:
"3. That the accident took place due to rash and
negligent driving by rider of the motor bike bearing
registration No. TR-01-J-9364 (Bajaj Pulser). Regarding
this, accident information was lodged with the west
Agartala P.S vide West Agartala P.S G.D.E. No.887 dated
19/08/2014."
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[16] She reiterated the fact in her cross-examination by the
appellant insurance company wherein she stated as under:
"The accident occurred due to rash and negligent driving
of rider of the motor bike."
[17] In the case of "Sunita and Others Vrs. Rajasthan State
Road Transport Corporation and others: reported in (2020) 13 SCC
486 the Apex Court held as under:
"15. In a situation of this nature, the Tribunal has
rightly taken a holistic view of the matter. It was
necessary to be borne in mind that strict proof of an
accident caused by a particular bus in a particular
manner may not be possible to be done by the
claimants. The claimants were merely to establish
their case on the touchstone of preponderance of
probability. The standard of proof beyond reasonable
doubt could not have been applied. For the said
purpose, the High Court should have taken into
consideration the respective stories set forth by both
the parties." (emphasis supplied)
The Court restated the legal position that the claimants
were merely to establish their case on the touchstone of
preponderance of probability and standard of proof
beyond reasonable doubt cannot be applied by the
Tribunal while dealing with the motor accident cases.
Even in that case, the view taken by the High Court to
reverse similar findings, recorded by the Tribunal was
set aside."
[18] The judgment of the Gauhati High Court which has been
relied upon by the counsel of the appellant does not bar a claim based on
G.D. Entry. The Court held that Tribunal has got ample power to verify
the genuineness of the claim pending before it and the insurance
companies have also enough opportunities in such proceedings to point
out the instance of collusion, if any, before the Tribunal. Genuine claims
cannot be defeated only on the ground that it was entertained on the
basis of G.D. Entry. In the given case, Tribunal verified the pleadings of
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the parties and relying on the evidence adduced by them and by applying
the standard of preponderance of probability, came to a conclusion that
the claimant suffered from serious injuries from the said accident and
awarded compensation to her. Therefore, in view of the materials
available on record and the judgment cited to (supra) I am of the view
that the claimant cannot be denied compensation simply because her
claim petition was entertained by the Tribunal on the basis of GD entry
and there was no police investigation in the case.
[19] With regard to quantum of compensation, it is apparent that
Tribunal awarded an exorbitant amount of Rs.2,00,000/- for pain and
sufferings and a further sum of Rs.2,00,000/- for shock and agony which
according to me should be reduced to Rs.2,00,000/-(rupees two lakhs) in
all for pain and sufferings. Separate compensation under the head of
shock and agony would not be appropriate. Claimant had undergone brain
surgery in hospital outside the State. Tribunal assessed treatment
expenses and transportation charges on the basis of bills submitted by
the claimant. Therefore, compensation awarded under the head of
medical expenses and transportation charges is not interfered with.
Award of 9% annual interest is exorbitant which should be reduced to
7.5%. In view of the above, the compensation payable to the victim is re-
assessed as under:
Sl. Amount
Heads
No.
1. For medical expenses Rs. 5,00,000/-
2. For transportation Charges Rs. 1,00,000/-
3. For pain and suffering Rs. 2,00,000/-
Total : Rs. 8,00,000/-
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[20] The amount of interest at the rate of 7.5% per annum shall
be paid by the appellant on the total amount of compensation from the
date of presentation of the claim at the tribunal till disbursement. The
appellant insurance company shall deposit the money with the Registry of
this High Court within a period of six weeks from today and in turn the
same shall be disbursed to the claimant by transferring the whole amount
to her individual bank account. Amount already paid, if any, shall be
adjusted.
[21] In terms of the above, the appeal stands disposed of. Pending
application(s), if any, shall also stand disposed of.
Send down the L.C record.
JUDGE
Dipankar
MAC App. No.26/2021.
