National Insurance Company ... vs Smt. Sabana Khatun And Ors
2022 Latest Caselaw 524 Tri

                        HIGH COURT OF TRIPURA
                              AGARTALA

                            MAC App 24 of 2020

   National Insurance Company Limited.
   Represented by Its Senior Divisional Manager,
   Agartala Division, 42, Akhaura Road, P.O. H.P.O. Agartala,
   P.S. West Agartala, Dist. West Tripura, Pin - 799001.
   (Insurer of Vehicle No.TR03-1719, Canter Truck)
                                                         -----Petitioner(s)
                                    Versus
1. Smt. Sabana Khatun and Ors.
   W/O. Lt.Saddam Hossain.

2. Sri Sayadel Hossain
   S/O. Lt. Saddam Hossain,(Respondent no 2 being minor is represented

by his mother at SI. no. 1 above)

3. Smt. Maraner Necha, W/O Mir Ahamed, (Mother of Lt. Saddam Hossain),

All are R/O Village Amjadnagar, P.S. Belonia, District South Tripura, P.O. Hrishyamukh, Pin 799156

---(Claimants/Respondents)

4. Sri Milan Paul S/O Lt.Suresh Chandra Paul, Village Ashram para, P.S. and P.O. Belonia, Dist. South Tripura, Pin 799155. (Owner of vehicle no. TR-03A-1682, Tripper)

5. Sri Suman Debnath S/O. Lt.Ruhuni Debnath, of Village Killamura, North Sonaichari, P.S. and P.O. Belonia, Dist. South Tripura, Pin 799155 (Driver of vehicle no. TR-03A-1682, Tripper)

6. The Branch Manager, Bajaj Allianj General Insurance Company Ltd. Basanta Enclave, 4th Floor, B Barua Road, Ulubari, Gauhati, Pin 781007. (Insurer of vehicle no. TR-03A-1682, Tripper)

7. Sri Dilip Debnath S/O Sri Monmohan Debnath, Vill. Jail Road, P.S. and P.O. Belonia, Dist. South Tripura, Pin 799155 (Owner of Vehicle No. TR 03-1719, Canter Truck)

8. Sri Gunamanik Tripura @ Gunamani, S/O Sri Shibu Mani Tripura, Village Mohininagar (Matai), P.O. Matai, P.S. Belonia, District South Tripura. Pin- 799155 (Owner of Vehicle No.TR 03- 1719, Canter Truck)

-----Respondent(s)

For Appellant(s) : Mr. S. Kar Bhowmik, Sr. Adv.

Mr. A. Bhattacharjee, Adv.

   For Respondent(s)                   : Mr. S. Bhattacharjee, Adv.
                                         Mr. K. De. Adv.
                                         Mr. K. Nath, Adv.
   Date of hearing                     : 18.04.2022
   Date of pronouncement               : 19.05.2022
   Whether fit for reporting           : No.

               HON'BLE MR. JUSTICE T. AMARNATH GOUD

                               Judgment & Order

This is an appeal under Section 173 of the Motor Vehicles

Act, 1988, as amended till date, against the Award dated 28.11.18

passed by the Ld. Member, Motor Accident Claims Tribunal, South

Tripura, Belonia, in case No.T.S.(MAC) 35 of 2014 whereby the

Appellant (O.P No6) National Insurance Co. Ltd has been directed to

pay an award amounting to Rs.18,84,400/- (Rupees eighteen lakhs

eighty four thousand and four hundred) with 7% interest from

21.03.2014 till payment is made.

[2] For the sake of brevity the parties are referred to as in the

cause title of T.S.(MAC) 35 of 2014. The case of the petitioner, as

revealed from the claim petition, in short, is that on 19.07.2012 in the

morning the deceased Saddam Hossein started his journey by TR-03-

1719 (Canter Truck) for going to his place of work with other labourers.

But when the said vehicle reached at Jharjhari at about 8.30 p.m. the

deceased and another labour of the vehicle namely Prabir Choudhury

fell down on the road from the said vehicle due to rash and negligent

driving by the driver of vehicle No.TR-03-1719 (Canter Truck). Due to

the accident the deceased sustained bleeding injury on his head. At that

time, another vehicle bearing No. TR-03A-1682 (Tripper) which was

coming from opposite direction took the injured and deceased for

shifting them to hospital, but unfortunately when the said Tripper

vehicle reached at Triprabazar at about 0900 hours the said Tripper

vehicle met an accident. Subsequently, Fire Service vehicle shifted them

to Belonia hospital, but the attending doctor declared him brought dead.

Hence, a compensation of Rs.13,56,500/- was prayed before the

tribunal.

[3] O.P. No.1, Sri Milan Paul, the registered owner of the

offending vehicle bearing No. TR-03A-1682 in his joint written

statement with O.P. No. 2 & 3 i.e. the drivers of the offending vehicles

bearing No. TR-03-1719 and TR-03A-1682 stated that when the

deceased had been traveling by vehicle No. TR-03-1719, at Jharjhari

the back side dala of the vehicle suddenly opened and Saddam Hossein

fell down on the carpet area of the road and died on spot. He was being

shifted to hospital by vehicle No. TR-03A-1682, but unfortunately that

vehicle also met an accident and ultimately Fire Service vehicle shifted

the deceased to Belonia hospital. He also pleaded that the vehicle was

driven by O.P. No.2 i.e. Gunamanik Tripura @ Gunamani having valid

driving licence and the vehicle was duly insured. He further pleaded that

the vehicle No. TR-03-1719 was taken from Dilip Debnath, the O.P. No.

5 and this vehicle was duly insured with the National Insurance

Company Ltd. covering the date of accident.

[4] O.P. No.4, the Bajaj Allianz General Insurance Company

Ltd. in written statement pleaded inter alia that, the vehicle No. TR-

03A-1682 was either not involved in the accident or was not responsible

for the death of Saddam Hossein.

[5] O.P. No.5, Sri Dilip Debnath pleaded inter alia that, Saddam

Hossein while traveling by vehicle No. TR-03-1719 fell down from the

vehicle as the wooden plank of the back side suddenly opened.

[6] O.P. No.6, the National Insurance Co. Ltd. by filing his

written statement besides raising the usual pleas and denying the

material particulars as raised in the claim petition have specifically

pleaded that the compensation, as claimed by the petitioners, is

excessive, exorbitant, exaggerated and without any basis.

[7] In the light of the pleadings, following issues were framed

by the tribunal to settle the claim:

(i) Whether on 19.07.12 Saddam Hossein was started his journey by one Canter Truck bearing No. TR-03-1719 and when the said vehicle reached at Jharjhari due to rash drive of the driver Saddam Hossein and another labour fell down on the road from the said vehicle and blood was pausing from the head of Saddam Hossein. At that time, another vehicle bearing No.TR-03A-1682 (Tripper) which was coming from opposite direction took the injured and Saddam Hossein for shifting them at Belonia Hospital, but unfortunately when the said Tripper vehicle reached at Triprabaza the said Tipper vehicle met an accident and Saddam Hossein also sustained more injury on his body and as a result he is died?

(ii) Whether the accident took place due to rash and negligent driving of the drivers of TR-03-1719 (Canter Truck) and TR-03A-1682 (Tripper)?

(iii) Whether the petitioners are entitled to get compensation for the death of deceased Saddam Hossein and if so, what will be the compensation and who will make payment of compensation?

[8] To establish the claim, one of the petitioners namely Smt.

Sabana Khatun filed her affidavit-in-chief as PW-1 and also exhibited

certain documents viz; certified copy of FIR, marked as Exbt.1, P.M.

examination report of the deceased, marked Exbt.2, certified copy of

charge sheet, marked Exbt.3 and Voter Identity Card of deceased

Saddam Hossein, marked Exbt.4.

[9] Sri Milan Paul also examined himself as OPW-1 and

exhibited certain documents viz, photocopy of driving licence of Suman

Debnath, marked Exbt.A, copy of registration certificate of vehicle No.

TR-03A-1682, marked Exbt.B, copy of registration certificate of vehicle

No. TR-03-1719, marked Exbt. C, the policy of insurance in the name of

Dilip Debnath in respect of vehicle No. TR-03-1719, marked Exbt.D and

the driving licence of Gunamani Tripura, marked Exbt. E.

[10] For the sake of convenience and brevity, all the issues were

taken up together for discussion and decision by the tribunal. The

claimant-petitioners by their pleading and on oath evidence have

proved the fact of accident. It appears that on 19.07.2012 an FIR

lodged with the Officer In-charge of Belonia P.S., a case Vide BLN P.S.

Case No.31/12 was registered under sections 279/338/304(A) of IPC

against the driver of the vehicle bearing No.TR-03-1682. But the I/O on

completion of investigation being prima facie satisfied filed charge sheet

against the driver of the offending vehicle bearing No.TR-03-1719 under

Sec. 279/338/304(A) IPC and also filed charge sheet against the driver

of another offending vehicle bearing No.TR-03A-1682 under Sec.

279/338 IPC. Soon after the accident the victim was taken to Belonia

hospital and the attending doctor declared him dead. Thus, the

claimant-petitioners have proved that Saddam Hossein died in vehicular

accident. As such, the claimant-petitioners No.1, 2 & 3 being wife, son

and mother respectively of the victim are entitled to compensation.

[11] Exbt.4, the Voter Identity Card of the victim shows that his

age is 18 as on 01.01.2012. As such, on the date of accident and death

i.e. 19.07.2012 he was 18 years old. As such, from the judgment of

Hon'ble Supreme Court in Smt. Sarala Verma and Ors. Vrs. Delhi

Transport Corporation and Anr.; reported in 2009 AIR SCW 4992

multiplier 18 is adopted. The victim was self employed and in fact a

daily labour. Considering his age the tribunal assessed his daily income

as Rs.300/-. As such, his monthly income is Rs.9,000/-. Hence,

Rs.9,000/- x 12 = Rs. 1,08,000/- x 18 = Rs.19,44,000/-. Here the

tribunal profitably referred the judgment of Hon'ble Supreme Court in

National Insurance Co. Ltd. Vrs. Pranay Sethi delivered on 31.10.2017

wherein Hon'ble Supreme Court was pleased to conclude that self

employed persons or fixed salary, below the age of 40 years, is also

entitled to 40% as loss of prospective income in case of death in motor

vehicle accident. Therefore, Rs.19,44,000/- x 40% = Rs.7,77,600/-.

Therefore, Rs.19,44,000/- + Rs.7,77,600/- = Rs.27,21,600/-. The

victim has a wife, mother and one minor son, as such 1/3rd of the award

has to be deducted as his own living expenses had he been alive. As

such, Rs.27,21,600/- (-) 1/3rd i.e. Rs.18,14,400/- which the claimant-

petitioners are entitled to receive as compensation. Further, following

the judgment of Hon'ble Supreme Court in Pranay Sethi (supra), the

petitioner No.1, Sabana Khatun being the wife of deceased Saddam

Hossein is also entitled to Rs.40,000/- for loss of consortium and the

claimant-petitioners are also entitled to Rs.15,000/- for funeral

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

petitioners are entitled to Rs.18,84,400/- with interest @ 7% per

annum from the date of filing of the case from 21.03.2014 till the date

of actual payment.

[12] From the pleading and evidence, the tribunal was of the

opinion that it is clear that Saddam Hossein as labour of the vehicle was

traveling by vehicle No. TR-03-1719 fell down from the vehicle and died

at spot. However, subsequently when he was being shifted to hospital

by vehicle No. TR-03A-1682, unfortunately that vehicle also met an

accident and at last Saddam Hossein was shifted to hospital by a vehicle

of Fire Service Department and attending doctor declared him brought

dead. Meaning thereby, the subsequent accident involving vehicle No.

TR-03A-1682 is not responsible for the death of Saddam Hossein.

Therefore, the first accident involving vehicle No. TR-03-1719 is

responsible for the death of Saddam Hossein. Therefore, the registered

owner Sri Dilip Debnath is liable to pay the compensation to the legal

representatives of Saddam Hossein.

[13] O.P. No.1 has proved registration certificate of vehicle No.

TR-03-1719, marked Exbt. C, the policy of insurance in the name of

Dilip Debnath in respect of vehicle No. TR-03-1719 covering the date of

accident, marked Exbt.D and the driving licence of Gunamani Tripura,

marked Exbt. E. In fact, the vehicle was duly insured with the National

Insurance Company Ltd. As such, the National Insurance Company Ltd.

shall indemnify the owner and pay the compensation to the claimant-

petitioners.

[14] Further the tribunal held that the claimant-petitioner No.1

being the wife of the deceased shall get Rs.10,40,000/- out of the total

amount of compensation and 60% of her share shall be kept in fixed

deposit for five years in any nationalized bank with liberty to withdraw

the monthly interest. And the rest amount shall be received by

claimant- petitioners No.2 & 3 i.e. the son and mother of the deceased

in equal share. Since the petitioner No.2 is a minor, his entire share

shall be kept in fixed deposit in any nationalized bank till attaining his

majority. However, petitioner No.1 being the mother of petitioner No.2

is at liberty to withdraw the monthly interest from the fixed deposit of

petitioner No.2 to maintain him properly. And 50% of share of the

petitioner No.3 shall be kept in fixed deposit for five years in any

nationalized bank with liberty that she can withdraw the monthly

interest to maintain the family. All the issues are decided accordingly.

[15] Finally by the award dated 28.11.2018, the tribunal has

observed in the following manner:

In the result, the O.P., National Insurance Company Ltd. shall pay the amount of compensation for Rs.18,84,400/- with interest @ 7% per annum from 21.03.2014 till the date of actual payment.

[16] Aggrieved by the order dated 28.11.2018, the O.P National

Insurance Company Ltd. (the appellant herein) has approached this

court challenging the awarded dated 28.11.2018.

[17]       Heard counsel for the parties.

[18]       Mr. S. Kar Bhowmik, learned senior counsel for the

appellant has contended that as per Ext.3 the registration certificate of

the vehicle No.TR-03-1719 (Canter Truck) was valid upto 04.09.2005.

That as such on 19.07.2012 which is the date of accident the vehicle did

not have any valid registration for which the appellant insurance

company is not liable to pay the compensation. Mr. Bhowmik, learned

senior counsel further submits that the award of Rs.18,84,400/-

(Rupees eighteen lakhs eighty four thousand and four hundred)

favouring the claimants is not only exorbitant but perverse, since the

same is beyond evidence. He further added that the income of the

deceased has been wrongly calculated and multiplier wrongly applied

calling for interference of this court. Mr. Bhowmik, learned senior

counsel further submitted that there is no independent witness or eye

witness who proved the accident/vis a vis rash and negligent driving of

the driver of the vehicle No. TR03-1719 (Canter Truck) for which the

appellant insurance company is not liable to pay the compensation.

[19] On the contrary, Mr. S. Bhattacharjee, learned counsel

appearing for the claimant-respondents vehemently opposed such

contention as advanced by Mr. S. Kar Bhowmik, learned senior counsel

for the appellant. Mr. Bhattacharjee, counsel for the claimant

respondents the award dated 28.11.2018 as passed by the Motor

Accident Claims Tribunal, South Tripura is just and proper and needs no

interference by this court.

[20] It is a specific case of the investigation officer as well as the

evidence in respect of the support of the claimants as pursuant to the

accident, he suffered a grievous head injury which led to the bleeding

profusely. Eventually, the victim succumbed to his injury. But to take a

chance his body was shifted to hospital in another vehicle which also

met with an accident.

[21] In the claim petition before the tribunal, the tribunal has

considered the reasonable monthly salary @ Rs.9000/- per month. But

the fact remains that the claimant indicated Rs.6000/- per month as his

income in the claim petition. No doubt granting compensation under

Motor Vehicle Accident cases should be generous and at the same time

it should be liberal. Moreover, for the benefit of the claimants, just

compensation should be awarded. Since the claimant themselves

indicated the salary at Rs.6000/- per month, it is not proper for the

court to enhance the basic income from Rs.6000/- Rs.9000/-. No doubt

in the absence of filing proof of income certificate as a notional income,

the apex court in several matters has fixed the notional income @

Rs.10000. But here is a case where the claimant has specifically

indicated income as Rs.6000/-.

[22] Hence, this court has no hesitation to confine the monthly

income as Rs.6000/-. Accordingly Rs.9000/- is reduced to Rs.6000/-.

Therefore the calculation of the compensation by the claimant-

respondent would stand as follows:

[23] The monthly income is fixed Rs.6,000/- by this court.

Hence, Rs.6,000/- x 12 = Rs. 72,000/- x 18 = Rs.12,96,000/-.

Referring the judgment of Hon'ble Supreme Court in National Insurance

Co. Ltd. Vrs. Pranay Sethi delivered on 31.10.2017 wherein Hon'ble

Supreme Court was pleased to conclude that self employed persons or

fixed salary, below the age of 40 years, is also entitled to 40% as loss

of prospective income in case of death in motor vehicle accident.

Therefore, Rs.12,96,000/- x 40% = Rs.5,18,400/-. Therefore,

Rs.12,96,000/- + Rs.5,18,400/- = Rs.18,14,400/-. The victim has a

wife, mother and one minor son, as such 1/3rd of the award has to be

deducted as his own living expenses had he been alive. As such,

Rs.18,14,400/- (-) 1/3rd i.e. Rs.12,09,600/- which the claimant-

petitioners are entitled to receive as compensation. Further, following

the judgment of Hon'ble Supreme Court in Pranay Sethi (supra), the

petitioner No.1, Sabana Khatun being the wife of deceased Saddam

Hossein is also entitled to Rs.40,000/- for loss of consortium and the

claimant-petitioners are also entitled to Rs.15,000/- for funeral

expenses and Rs.15,000/- for loss of estate. Further, following Magma

General Insurance Company Limited vs Nanu Ram reported in (2018)

18 SCC 130 the mother and the son (each) are entitled to get

Rs.50,000/- under the head of loss of love and affection. Thus, in total

the claimant-petitioners are entitled to Rs. Rs.13,79,600/- with interest

@ 7% per annum from the date of filing of the case from 21.03.2014 till

the date of actual payment.

[24] With the above observation and modification of the order of

the learned tribunal as indicted above, the present appeal is allowed in

part and thus disposed of and as a sequel, interlocutory applications, if

any, shall stand closed.

[25] It is needless to mention that the insurance company is at

liberty to withdraw the statutory amount of Rs.25,000/- (Rupees

Twenty Five thousand) only which has been deposited at the time of

filing the appeal as per procedure. Accordingly, the registry shall

redeposit the same to the respective account.5

JUDGE

Dipak