Tripura High Court

The General Manager vs Sri Abhishek Debbarma Son Of Sri ... on 4 May, 2022

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              HIGH COURT OF TRIPURA
                    AGARTALA
              MAC App. No.22 of 2022
The General Manager, SBI General Insurance Company
Ltd., 2nd Floor, Laxmi Darshan Building, Ulubari (Opposite
Bora Services) G.S. Road, Guwahati- 781007. (insurer of
offending vehicle bearing registration No.TR-01-X-1775
(Tata ACE))
                                       -----Petitioner(s)

                          Versus

1.Sri Abhishek Debbarma son of Sri Shanti Debbarma
Resident  of   village  -   Ram     Krishna    Para  P.O.
Bodhjungnagar, PS - Lefunga, District - West Tripura

2.Sri Nani Gopal Das, son of Lt. Atul Chandra Das
Resident of Badharghat, near Kalimata Sangha PS -
Amtali, District -West Tripura, (Owner of TR-01-
X1775(Tata ACE))

3.Smti Radha Rani Debbarma, wife of Sri Shanti
Debbarma, Resident of village - Ram Krishna Para Near
Ram Krishna Para J.B. School P.O. Bodhjungnagar, PS -
Lefunga, District - West Tripura.

4.The Branch Manager, Reliance General Insurance
Company Limited, Anil Plaza, 5th Floor, beside IDBI
Building, G.S. Road, ABC, Guwahati, Assam (Insurer of
Scotty bearing registration No. TR-01-X-6286-Honda
Scotty).

5.The Branch Manager, The Reliance Insurance
Company Limited, Netaji Choumuhani, Agartala, Opposite
Big Bazar, PS- West Agartala, P.O. Agartala, District - West
Tripura, Pin- 799001(Insurer of Scotty bearing registration
No. TR.01-X-6286- Honda Scotty).
                                     -----Respondent(s)

BEFORE HON'BLE MR. JUSTICE S.G.CHATTOPADHYAY For the Petitioner(s) : Mr. P.K.Ghosh, Adv.

For the Respondent(s) : Mr. G.S.Das, Adv.

                Date of Hearing               : 27.04.2021
                Date of Judgment              : 04.05.2022

                Whether fit for reporting     : Yes/No   
                                JUDGMENT&ORDER

                [1]         This is an appeal under Section 173(1) of

the Motor Vehicles Act, 1988 (the MV Act, hereunder)

by the Insurance company against the award dated

03.02.2022 passed by the Motor Accidents Claims

Tribunal (Court no.5), West Tripura, Agartala in T.S

MAC 141 of 2018 whereby the learned Tribunal has

awarded a sum of Rs.21,45,360/-(Rupees Twenty-one

Lakh Forty-five thousand Three hundred and sixty)

along with 8% annual interest thereon to claimant

Abhishek Debbarma (Respondent No.1 herein) who

has sustained permanent disability to the extent of

80% from the road traffic accident which occurred on

MAC App.22 / 2022

25.08.2015 at Durga Chowdhury para under Bodhjung

Nagar Police Station.

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

Claimant petitioner Abhishek Debbarma

(Respondent No.1)was going to Banikya Chowmuhani

from Agartala at about 3.30 PM on 25.08.2015 on the

'Scooty' bearing registration No. TR-01-X-6286, which

was being driven by his friend Manab Debbarma.

Claimant was the pillion rider on the said vehicle along

with Sahil Debbarma, brother of Manab Debbarma

who was driving the 'Scooty'. When they reached

Durga chowdhury para on the way to Banikya

Chowmuhani, the offending vehicle bearing

registration no.TR-01-X-1775(TATA ACE) hit their

'Scooty' from the opposite direction at an excessive

speed. As a result, the claimant and another pillion

rider Sahil Debbarma received multiple fractures.

Manab Debbarma died at the spot and other two

MAC App.22 / 2022

injured including the claimant were taken to AGMC and

GBP hospital in a fire service vehicle.

[3] At around 9.35 P.M on the same day Sahil

Debbarma, an eye witness, lodged a written FIR with

the Officer in charge of Bodhjung nagar P.S. alleging,

inter alia, that while overtaking a school bus ahead of

it, the offending vehicle hit the 'Scooty' face to face in

which informant Sahil Debbarma was travelling as a

pillion rider along with the claimant. The informant

categorically stated in his FIR that the accident

occurred as a result of rash and negligent driving of

the offending vehicle.

[4] Based on the FIR, Bodhjungnagar P.S. case

No.2015 BJN 023 under Sections 279,338,304A IPC

and Sections 184 and 177 MV Act was registered and

the case was taken up for investigation. On completion

of investigation, the Investigating Officer submitted

charge-sheet against accused Nanigopal Das, driver of

MAC App.22 / 2022

the offending vehicle for commission of offence

punishable under Sections 379,338 and 304A IPC. The

investigation revealed that at the material time first

informant Sahil Debbarma was travelling from Circuit

House, Agartala to Banikya Chowmuhani on the

'Scooty' of his younger brother Manab Debbarma.

Claimant was the friend of his brother Manab

Debbarma. His brother Manab Debbarma was driving

the 'Scooty' on which he and claimant Abhishek

Debbarma were pillion riders. On the way the

offending vehicle overtook the school bus of

DONBOSCO school in a turning point and hit the

'Scooty'. As a result, Manab Debbarma who was

driving the 'Scooty' died at the spot. Sahil Debbarma

and claimant Abhishek Debbarma who were pillion

riders received fatal injuries in different parts of their

body. The driver of the DONBOSCO school bus

identified the offending vehicle. Local people informed

Bodhjungnagar Fire Service station and the injured as

MAC App.22 / 2022

well as the deceased driver of the 'Scooty' were

immediately shifted to AGMC and GBP hospital in a

Fire-Service vehicle. During investigation, charges for

offence punishable under Sections 379, 338 and 304A

IPC read with Section 184, 187 and 177 MV Act were

proved against the owner driver of the offending

vehicle for which charge-sheet was laid against him.

[5] Abhishek Debbarma claimed compensation

of a sum of Rs.26,80,000/-(Rupees Twenty-Six Lakh

Eighty Thousand) by filing a petition under Section

166 of the MV Act at the MACT(Court No.5),West

Tripura Agartala. He claimed that as a result of the

accident he sustained permanent disability and

became unable to carry out his occupation as a day

labourer. Besides, he incurred a huge expenditure for

treatment. In his petition the claimant impleaded the

accused owner driver of the offending vehicle and the

insurer of the offending vehicle a respondents.

MAC App.22 / 2022

[6] After notice was served on the respondents,

accused driver of the offending vehicle submitted a

separate written statement claiming that he never

drove his vehicle carelessly. Though he admitted the

accident, he denied his liability in the said accident.

[7] The SBI General Insurance company (the

Appellant, herein) also filed a separate written

statement contending that liability of the insurance

company in paying compensation would arise only if

the claimant succeeds in proving that the accident

occurred due to rash and negligent driving of the

offending vehicle and the said vehicle had valid

documents and there was no breach of the policy of

the insurance on the part of the owner of the offending

vehicle. The appellant insurance company also pleaded

at the Tribunal that claim of the petitioner was

exorbitant and against the settled principles of law.

MAC App.22 / 2022

[8] Smt. Radharani Debbarma, registered owner

of the 'Scooty' in which the claimant was travelling

also filed a separate written statement claiming that

her 'Scooty' was duly registered with Reliance General

Insurance Company Ltd. She claimed that the

insurance policy was in operation on the date of the

occurrence and liability of compensation, if any, would

be borne by the insurer.

[9] In the written statement filed by the

Reliance General Insurance Company (Respondent

No.4) it was asserted in paragraph 12 of the written

statement as under:

"12.That, with regard to the contention made by the claimant petitioner in Column no.22 the answering OP No.4 the Insurance Company want to state that the accident occurred solely due to the negligence of TATA Ace vehicle bearing Registration No.TR-01-X-1775, which came with high speed and dashed the Scooty. Hence, the insurer of vehicle No.TR-01-X-1775 is totally responsible to pay the compensation if any awarded and OP NO.4 is not at all responsible."

MAC App.22 / 2022

[10] During trial the tribunal framed the following

issues:

(i)Whether the claim petition is maintainable in its present form and nature

(ii)Whether the claimant sustained injuries due to rash and negligent driving of the offending vehicle bearing registration No.TR-

01-X-1775 and if so, whether he was entitled to compensation as prayed for.

(iii)Who shall be held liable to pay such compensation.

[11] In order to establish his claim, claimant

examined himself as PW-1 and Dr. Dipti Bikash Roy

who issued the disability certificate in favour of the

claimant as PW-2. Apart from adducing the ocular

testimony of these two witnesses, claimant produced

his discharge certificate from hospital, USG report, CT

Scan report, medical prescriptions and other medical

documents, the disability certificate issued by the

District Disability Medical Board, his voter ID card, the

MAC App.22 / 2022

FIR, injury report and charge-sheet which were taken

into evidence and marked as Exhibit 1-Exhibit 9.

[12] On the side of the respondents accused

driver was examined as OPW-1 and Dr. Dipti Bikash

Roy as OPW-2. This apart, the insurance certificate of

the offending vehicle, driving license of its driver and

other documents of the vehicle were taken into

evidence and marked as Exhibit A - Exhibit E.

[13] On appreciation of evidence the Tribunal

decided the first issue with regard to the

maintainability of the petition in favour of the

claimant. While dwelling on issue No.2 with regard to

the entitlement of the claimant to compensation,

Tribunal held that the accident occurred as a result of

rash and negligent driving of the offending vehicle and

the claimant sustained 80% permanent disability from

the said accident and as such he was entitled to

compensation.

MAC App.22 / 2022

[14] On the basis of the evidence adduced by the

claimant, Tribunal held that the claimant was 15 years

old at the time of occurrence and the Tribunal worked

out his monthly income at Rs.6,400/-. Having

appreciated the disability certificate dated 29.08.2018

[Exbt.7] issued by the District Disability Medical Board

and the evidence adduced by Dr.Dipti Bikash Roy, one

of the members of the said Board, Tribunal came to

the conclusion that 80% Locomotor disability certified

by the District Disability Medical Board actually

amounted to 100% functional disability for a day

labourer because the claimant suffered from stiffness

of his right knee joint and ankle joint with shortening

of his right leg to the extent of 4 inches with wasting

of muscle and PW Dr. Dipti Bikash Roy apprised the

court in his evidence that a person with such disability

cannot perform any work as a day labourer and

therefore, the functional disability in such case would

be 100%.

MAC App.22 / 2022

[15] Since the claimant was below 40 years of

age, and he was a self employed person Tribunal

made an addition of 40% of the said monthly income

of the claimant towards his future prospect and the

total monthly income of the claimant was worked out

to be 6,400+2,560=Rs.8,960/-. In view of his age,

Tribunal applied multiplier 18 in terms of the judgment

of the Apex Court in SARLA VERMA (SMT) AND OTHERS

Versus DELHI TRANSPORT CORPORATION AND ANOTHER

reported in (2009) 6 SCC 121 and his annual income

was worked out to be 8,960x12x18=Rs.19,35,360/-.

With this amount Tribunal added 20,000 for actual

medical expenses incurred by the claimant. The

claimant was further awarded Rs.50,000/- for pain and

sufferings, Rs.50,000/- for future medical treatment

and another sum of Rs.50,000/- for loss of expectation

of life. Claimant was also awarded a further sum of

Rs.40,000/- for loss of amenities and the Tribunal thus

MAC App.22 / 2022

worked out the total compensation under various

pecuniary and non pecuniary heads as under:

                       Sl. No.                Head                      Amount

                         01       For loss of income                =Rs.19,35,360/-

                         02       For actual medical expenses       =Rs.20,000/-

                         03       For pain and sufferings           =Rs.50,000/-

                         04       For future medical treatment      =Rs.50,000/-

                         05       For loss of expectation of life   =Rs.50,000/-

                         06       For loss of amenities             =Rs.40,000/-

                                 Total amount of compensation       =Rs.21,45,360/-

8% annual interest was awarded on this

amount.

[16] Tribunal also decided the 3rd issue in favour

of the claimant and held that the appellant insurance

company was liable to pay the compensation because

the insurance policy of the offending vehicle was in

operation on the date of the occurrence. Tribunal

therefore, directed the appellant insurance company to

pay the whole amount of compensation within 30 days

along with 8% annual interest thereon.

MAC App.22 / 2022

[17] Aggrieved with the award passed by the

Tribunal, the insurance company has challenged the

said award mainly on the following grounds:

(i) The claimant has failed to establish that the

accident occurred due to rash and negligent driving of

the offending vehicle

(ii)Tribunal reached an erroneous conclusion that the

accident occurred due to rash and negligent driving of

the offending vehicle merely on the basis of charge

sheet submitted by the Investigating agency.

(iii)Tribunal has worked out and awarded an exorbitant

amount of compensation against the settled principles.

(iv)The Tribunal did not take into consideration the

fact that the offending vehicle did not have valid

documents on the date of the accident.

(v)Tribunal erred in holding that claimant used to earn

money only at the age of 15.

MAC App.22 / 2022

(vi) Tribunal failed to appreciate the fact that the

charge of rash and negligent driving could not be

established in the course of the criminal trial against

the accused driver as a result of which he was

acquitted of the criminal case.

(vii) Tribunal failed to appreciate that deceased driver

of the 'Scooty' had taken 02 pillion riders on his

'Scooty' including the claimant and his brother Sahil

Debbarma which amounted to violation of the policy

condition of the 'Scooty' and the accident occurred due

to such negligence of the driver of the 'Scooty' who

died at the spot in the said accident.

(viii) The District Disability Medical Board did not

assess the disability of the claimant properly.

[18] Appearing for the appellant insurance

company, Mr. P.K.Ghosh, learned counsel has

vehemently argued that the Tribunal has awarded an

exorbitant amount of compensation without taking into

MAC App.22 / 2022

consideration the settled parameters for assessment of

compensation in such cases. The Counsel has argued

that no compensation can be awarded in a case under

Section 166 MV Act unless rash and negligent driving

is proved against the driver of the offending vehicle.

According to Mr. Ghosh, learned counsel, in the

criminal trial held against the driver of the offending

vehicle [Respondent No.2 herein] the driver was

exonerated from the charges of rash and negligent

driving and therefore, the Tribunal has erroneously

held that the said accident occurred due to rash and

negligent driving. Counsel has further argued that

Tribunal should not have assessed the monthly income

of the claimant at Rs.6,400/- because at the time of

the accident he was only 15 years of age and

therefore, he did not have any earning capacity at this

tender age of him. Counsel has also argued that the

'Scooty' had 02 pillion riders in violation of the Act and

the policy condition of the 'Scooty' and present

MAC App.22 / 2022

claimant being one of those pillion riders of the vehicle

is not entitled to any compensation on the grounds

aforesaid. Mr.Ghosh, learned counsel of the insurance

company has urged this court for allowing the appeal.

[19] Learned counsel appearing for the

respondent claimant on the other hand has argued

that the standard of proof required in a criminal case

is different from the standard of proof required in

deciding a claim petition. Counsel has argued that the

claimant has adduced the evidence of eye witness to

prove that the accident occurred when the offending

vehicle was overtaking the school bus at a turning

point of the road which clearly proves that careless

driving of the offending vehicle was responsible for the

accident.

[20] With regard to the income of the claimant,

learned counsel has argued that claimant had taken up

the occupation of a day labourer under duress at a

MAC App.22 / 2022

very tender age of him to maintain his family

consisting of his parents and younger brother and

sister. Counsel contended that the Tribunal rightly

assessed his monthly income at Rs.6,400/- and

granted a reasonable sum of compensation in terms of

settled principles. Counsel therefore, urged the court

to uphold the award of the Tribunal by setting aside

the appeal.

[21] Admittedly the accident occurred on

25.08.2015 in which the claimant received fatal

injuries. Undisputedly, Manab Debbarma was driving

the 'Scooty' in which the claimant was travelling as a

pillion rider. Sahil Debbarma, brother of said Manab

Debbarma lodged the FIR on the very day of the

accident and the investigation of the case was also

taken up instantly. During investigation the

involvement of the offending vehicle was discovered

and evidence collected by the investigating agency

supported the charge of rash and negligent driving

MAC App.22 / 2022

against the accused driver of the offending vehicle.

The insurance policy of the offending vehicle was

produced during trial of the case at the Tribunal which

was taken into evidence and marked as Exhibit-A1.

The said insurance policy would indicate that the

offending vehicle bearing registration No. TR-01-X-

1775 was registered with the appellant insurance

company and the policy was in operation from

30.08.2014 to 29.08.2015. As stated, the accident

occurred on 25.08.2015. Therefore, the policy was in

operation on the date of the accident. Claimant was no

doubt a 3rd party and under the said policy, legal

liability to 3rd party was covered.

[22] As per the eye witness the offending vehicle

hit the 'Scooty' when the vehicle was overtaking a

school bus on the way. As a result of which the driver

of the offending vehicle lost control and dashed

against the 'Scooty' which caused the death of Manab

Debbarma, driver of the 'Scooty' and injuries to the

MAC App.22 / 2022

claimant and the other pillion rider. In view of such

evidence Tribunal rightly held that the accident

occurred due to rash and negligent driving of the

offending vehicle.

[23] The disability certificate dated 29.08.2018

[Exbt.-7] supported by the oral evidence of Dr.Dipti

Bikash Roy,PW-2 has clearly established that the

claimant suffered from 80% disability which amounted

to 100% functional disability. Dr. Dipti Bikash Roy

[PW-2] categorically stated that it would be impossible

for a person to carry out occupation of a day labourer

with such kind of disability. His evidence could not be

impeached in cross examination. Therefore, there is no

reason to interfere with the findings of the Tribunal on

this issue.

[24] The argument of the counsel of the

insurance company that the claimant being 15 years of

age was unable to earn is totally untenable. The

Tribunal rightly assessed his monthly income and by

MAC App.22 / 2022

application of appropriate multiplier worked out his

loss of annual income.

[25] However, this court is of the view that the

rate of interest awarded by the Tribunal should be

reduced from 8% to 7% and instead of awarding

Rs.1,40,000/- separately for pain, sufferings, trauma,

loss of amenities and for loss of expectation of life, it

would be appropriate to award a sum of Rs.1,00,000/-

for pain and sufferings and loss of amenities.

Accordingly, the award made by the Tribunal is

reassessed by this court as under:

                      Sl.No.             Head                       Amount

                       01      For loss of annual income =Rs.19,35,360/-

                       02      For medical expenses           =Rs.20,000/-

                       03      For future medical             =Rs.50,000/-
                               expenses
                       04      For pain, sufferings and       =Rs.1,00,000/-
                               loss of amenities

                       Total amount of compensation            =Rs.21,05,360/-




MAC App.22 / 2022





                [26]      The claimant shall be entitled to annual

interest @ 7% on this amount of compensation from

the date of filing of the claim petition at the Tribunal

till disbursement of compensation.

[27] The appellant insurance company is directed

to deposit the whole amount of compensation along

with interest thereon within 06 weeks from today. The

amount already paid by the insurance company

including the statutory deposit shall be adjusted to the

said amount of compensation. On deposit of the

compensation by the insurance company, 70% of the

amount shall be invested in a term deposit in the

name of the claimant in a nationalized bank for a