United India Insurance Company ... vs Smt. Laxmi Sena Sinha
2022 Latest Caselaw 1084 Tri

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                    HIGH COURT OF TRIPURA
                      _A_G_A_R_T_A_L_A_
                       Mac App No.27 of 2021
United India Insurance Company Limited, to be represented by the
Divisional Manager, GRS Tower R.M.S Chowmuhani, Agartala, Tripura
(West) Pin-799001.
                                             ......Appellant(s)
                           VERSUS
1. Smt. Laxmi Sena Sinha, wife of late Laxmi Sinha.
2. Tripati Sinha, daughter of Laxmi Sinha
Both are resident of East Radha Kishorepur, P.O. Narendranagar, P.S.
Damcherra, District- North Tripura.
                                                    ......Respondent(s)

3. Shri Ranu Bhusan Das, son of late Radhika Ranjan Das, resident of Chandipur, P.O. Chandipur, P.S. Kailashaher, District- North Tripura, Pin- 799277.

                                               ...... Owner Respondent(s)
For Appellant(s)         :      Mr. S.D. Choudhury, Advocate.
For Respondent(s)        :      Mr. Samarjit Bhattacharjee, Advocate.

            HON'BLE THE CHIEF JUSTICE (ACTING)

Date of hearing and Judgment : 16th December, 2022.

JUDGMENT & ORDER(ORAL)

Heard Mr. S.D Choudhury, learned counsel appearing for the

appellant-insurance company and also heard Mr. Samarjit Bhattacharjee,

learned counsel appearing for the respondents.

[2] The present appeal is directed against the award dated

16.03.2021 passed by the learned Member, Motor Accident Claims

Tribunal, North Tripura, Dharmanagar in T.S(MAC) No. 42 of 2018

whereby the Tribunal awarded compensation of Rs.39,13,140/- in favour of

the claimants with interest @ 6% per annum from the date of filing of the

claim petition.

[3] Mr. S.D Choudhury, learned counsel appearing for the

appellant-insurance company has prayed for the following relief :

"(i) Admit the appeal;

(ii) Call for the record bearing case no. T.S.(MAC) 42 of 2018 from the learned Tribunal (G. Sarkar), Dharmanagar, North Tripura;

(iii) Issue notice upon the respondents as to why the impugned judgment shall not be set aside, cancelled, quashed;

(iv) After hearing be kind enough to set aside, quash, cancel, modify the impugned judgment dated 16.03.2021 passed in T.S.(MAC) 42 of 2018 by the learned Tribunal, Dharmanagar, North Tripura. During the pendency of the appeal be kind enough to stay further proceeding arising out of the impugned judgment passed in T.S(MAC) No.42 of 2018."

[4] It is alleged that in an accident which took place at Gandhi

tilla near Shibmandir on Damcherra-Dharmanagar road dated 15.09.2018,

deceased Sudip Sinha was injured and died as a result of the injury

sustained by the accident. He was 22 years old at the time of accident and

was employed in the police department as constable. A claim petition was

filed by the mother, sister of the deceased claiming compensation. In the

claim petition, it was alleged that the accident took place on 15.09.2018

due to rash and negligence driving of the driver of the offending vehicle.

Initially, FIR was registered against the vehicle bearing registration

No.TR-02-4192 (Cruiser).

[5] In the claim petition it was also alleged that the accident had

taken place with said vehicle bearing registration No.TR-02-4192

(Cruiser). It would be pertinent to mention that the FIR was lodged by the

complainant, namely, Joydwip Chakraborty and in that FIR it was stated

that the deceased was travelling with him in the said vehicle. He stated

that the deceased Sudip Sinha suddenly fell down from the vehicle due to

tremble and he was sitting backside of the vehicle. In the FIR, it was

mentioned as follows :

"With due respect & humble submission I am an inhabitant of Damcherra beg to inform you that today at about 11.30 hrs myself along with by younger brother has proceeding towards Damcherrra to Dharmanagar by passenger vehicle cruiser bearing No.TR-02- 4193 & while the vehicle reached at Gandhi Tilla near by Shiv Mandir at that time suddenly the vehicle started to shake tremendously. Seeking that when I asked to the driver of the vehicle about reason, he told nothing about that and continuously trying to stop the vehicle. Meanwhile one passenger I personally known him as he is the inhabitant of East Radhakishorepur namely Sri Sudip Sinha, son of Laxmi Sinha suddenly fallen down from t he vehicle due to shake who was seating back seat of the vehicle. Later near about 01 km distance from the spot the driver of the notice above vehicle put his vehicle on a slope land. On the other hand Sri Sudip Sinha fainted at that place where he was fallen down, helplessly and wounded condition. Subsequently all the passenger including me again asked the driver of the vehicle about the reason of shaking vehicle, then he reply us that due to mechanical disorder the vehicle was shake. Latter I heard from two unknown persons those who were passing through the way by a motor cycle that the said Sudip Singh was shifted to DMC hospital by a vehicle of electric department and being referred he was shifted to Dharmanagar District hospital by ambulance. But the driver of the vehicle neither he arrange to shift the wounded person to hospital for treatment nor he visit to the place where the passenger was fallen for assisting him. Just he tried to escape from that place where he put his vehicle after vehicle stopped, but somehow we the passenger of the vehicle managed to detained him. Due to rush and negligence driven by the driver of the cruiser caused the incidence. So therefore, I do hereby lodged a complaint

against then driver of the vehicle bearing No.TR-02-4193 namely Binoy Das, son of Bidhubhusan Das of South Chandipur, P.S. Kailashahar, Unakoti Tripura and also prayed for taking necessary action against him by registering a case and thus oblige thereby."

[6] The appellant appeared and contested the claim petition. It

was alleged that the accident did not occur due to the negligence of the

driver the vehicle(Cruiser) and denied all the allegations made in the

petition. It was stated that on the date of accident, the vehicle had a valid

insurance policy and further stated that the deceased Sudip Sinha

suddenly jumped into the road without giving prior indication to the

driver which resulted into grievous injuries sustained by him. According

to the respondents, the deceased was travelling in the said vehicle bearing

registration No.TR-02-4192 (Cruiser) and the accident occurred due to

the rash and negligent driving of the driver of the offending vehicle.

[7] On the basis of the pleadings and after hearing the parties, the

following issues were framed :

(i) Whether the suit is maintainable?

(ii) Whether the motor vehicle bearing registration No.TR-02-4192 (Cruiser) met with an accident on 15-09-2018 at about 11.30 hours at Gandhitilla, near Shibmandir on Damcherra-Dharmanagar road, resulting which Sudip Sinha sustained grievous injuries and injured was died due to that accident?

(iii) Whether the claimants are entitled to get compensation due to death of Sudip Sinha and if so, what should be the quantum of compensation and who shall be liable to pay the compensation?

(iv) Any other relief/reliefs as the claimants entitled to?

[8] The respondent, namely, Smt. Laxmi Sena Sinha submitted

examination-in-chief as P.W.1 and proved the documents produced by her.

On the other hand, the owner-respondent has also submitted examination-

in-chief as OPW 1, Sri Binay Das as OPW 2 and Sri Bidhan Deb as OPW 3

who were cross-examined and proved the documents produced by them.

[9] The claimant in her examination-in-chief stated in the same

tune of her claim petition that on 15-09-2018 at about 11.30 hours Sudip

Sinha fell down from the car due to rash and negligent driving of the driver

of the vehicle bearing registration No.TR-02-4192 (Cruiser) and the

learned Tribunal was also satisfied that the deceased Sudip Sinha died in a

motor vehicular accident occurred on 15.09.2018.

[10] The learned Trial Judge awarded a sum of Rs.38,83,140/- as

compensation. He further observed that since the deceased was 22 years of

age, 50% of his salary was also added as future prospects. The monthly

income of the deceased assessed by the Tribunal was Rs.35,955/-. The

learned Tribunal further relying on the judgment of Sarala Verma versus

DTC, reported in (2006) 6 SCC applied multiplier 18 in determining the

compensation and awarded total compensation of Rs.39,13,140/- in favour

of the claimants with interest @ 6% per annum from the date of filing of

the claim petition. The operative portion of the judgment reads as follows :

"The claimant-petitioner has mentioned in the claim petition that the deceased was a constable of police and his salary certificate is proved as exbihit-3 from which it reveals that the monthly salary of the deceased was Rs.23,970/-. Since the deceased was 22 years 50% of his salary be added as future prospects. So, the monthly income of the deceased for the purpose of the claim case is stands at (Rs.23,970/- + Rs.11,985/-) = Rs.35,955/-. In that ratio the yearly

income of the deceased is assessed at Rs.4,31,460/-. Now since the deceased was an unmarried person and so after deducting half of his yearly income, is yearly contribution to his family is assessed at Rs.2,15,730/- which he would have contributed to his family had he been alive. Since the deceased was at the age group of 21-25 years at the time of his death as per multiplication scale in Tilak Chandra's case as clarified in Charlie's case, multiplier in this case would be

18. Since one year's family contribution of the deceased is assessed at Rs.2,15,730/- that amount should be multiplied by multiplier 18 and on calculation it comes to Rs.38,83,140/- and that amount is the actual loss of income of the legal heirs of the deceased due to the death of the deceased. So in this claim petition under the head of loss of income an amount of Rs.38,83,140/- is awarded. Furthermore, as per the guidelines of the Hon'ble Supreme Court passed on 31.10.2017 in SPECIAL LEAVE PETITION (CIVIL) NO.25590 OF 2014 between National Insurance Company Limited versus Pranay Sethi and others under the head of loss of estate and funeral expense a sum of Rs.15000/- and Rs.15000/- respectively is awarded. So in total I award (Rs.38,83,140/- + Rs.15,000/- + Rs.15,000/-) = Rs.39,13,140/-. Resultantly, the application under Section 166 of the Motor Vehicles Act, 1988 filed by the claimants is allowed on contest. Opposite Party No.2, The Branch Manager, The United India Insurance Company Limited Dharmanagar Branch, Post Office Road, Dharmanagar, North Tripura shall pay the compensation of Rs.39,13,140/- to the claimants within a period of 30 days from this day of award. This award of compensation shall carry interest at the rate of 6% per annum from the date of presentation of the claim petition before this Tribunal till the realization. Any amount of compensation, if received by the claimant on the principle of No Fault Liability as contemplated under Section 140 of the Motor Vehicles Act, 1988 shall be adjusted to the compensation so finally awarded. The awarded compensation together with interest shall be paid to the claimants by transmitting it directly to the savings bank accounts of the claimants.

[11] Mr. S.D. Choudhury, learned counsel for the appellant submits

that the learned Tribunal failed to appreciate the facts of the case and came

to an erroneous conclusion and awarded compensation to the claimants

without any cogent reason. Counsel further contends that the salary

certificate was not properly considered by the learned Tribunal which

revealed that deceased was employed in a police department and deduction

towards his income was not properly made. Accordingly, learned counsel

for the appellant-insurance company prays for setting aside the award

passed by the learned Member, Motor Accident Claims Tribunal, North

Tripura, Dharmanagar in T.S(MAC) No. 42 of 2018.

[12] On the other hand, Mr. Samarjit Bhattacharjee learned counsel

appearing for the respondents strongly opposed the appeal contending that

the learned trial Judge did not commit any error in passing the award. He

submits that since the appellant-insurance company has now come up with

a new issue which has not been raised at time of trial and there was no

discussion on that, now it is not open for the insurance company to raise a

new issue and advance the argument. He further submits that nothing

prevented the insurance company to make a request for raising additional

issues at the time of trial. Consequently, learned counsel for the

respondents prays for dismissal of the appeal filed by the appellant-

insurance company.

[13] After hearing the learned counsel for the respective parties,

this Court is of the considered view that the learned trial Judge did not

commit any error in assessing the income of the deceased. The learned

Tribunal has correctly come to the conclusion and awarded the

compensation in favour of the claimants. Accordingly, the present appeal

filed by the appellant-insurance company is dismissed and the award dated

16.03.2021 passed by the learned Member, Motor Accident Claims

Tribunal, North Tripura, Dharmanagar in T.S(MAC) No. 42 of 2018 is

affirmed. Send down the LCRs forthwith.

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

CHIEF JUSTICE (ACTING)

Dipesh