Tripura High Court

High Court Of Tripura vs Smt. Tarumala Debbarma on 23 May, 2022

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                   HIGH COURT OF TRIPURA
                         AGARTALA
                         MAC App. No. 43/2021
The Oriental Insurance Company Ltd.
Represented by the Divisional Manager, Agartala Division
Office, H.B. Road, (Near Sarkar Nursing Home), Agartala,
West Tripura.
                                                           ............... Appellant.
                                      Versus
1.    Smt. Tarumala Debbarma.
W/O.- Late Nripendra Debbarma.
2.     Sri Brajil Debbarma,
S/O.- Late Nripendra Debbarma.
3.      Sri Raj Debbarma,
S/O.- Late Nripendra Debbarma. All are residence of village
Bharat Sardarpara, South Padmabil, Kshirod Nagar, ADC
village, P.O.- Khowai, P.S.- Khowai, District- Khowai, Tripura.
4.     Sri Nripendra Saha,
S/O.- Sri Kali Mohan Saha, of village North Durganagar, P.S.-
Khowai, District- Khowai, Tripura. (Owner of the vehicle vide
No.- TR-01-F-1696, Truck).
                                                         ............... Respondent.

C.O(FA) No. 01/2022

1. Tarumala Debbarma, W/O lt. Nripendra Debbarma

2. Brajil Debbarma, S/o- Lt. Nripendra Debbarma

3. Raj Debbarma, S/o- Lt. Nripendra Debbarma (All are residents of village- Bharat Sardar Para, South Padmabil, Kshirod Nagar A.D.C. Village, PS- Khowai, District- Khowai Tripura) ............... Cross Objectors(Claimants). Versus

1. Sri Nripendra Saha, S/o- Kali Mohan Saha, Village- North Durganagar, P.S- Khowai, District- Khowai, Tripura (Owner of the Vehicle bearing No. TR-01-F-1696, Truck)

2. The Oriental Insurance Co. Ltd., Represented by it's Divisional Manager Agartala Branch, 44/2 Central Road, Agartala, P.S- West Agartala Dist.- West Tripura (Insurer of Vehicle No. TR-01-F-1696, Truck) ............... Respondent.

MAC App. No.43/2021 & C.O (FA) No.01/2022.

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BEFORE THE HON'BLE MR. JUSTICE S. G. CHATTOPADHYAY In MAC App. No.43/2021.

For Appellant(s) : Mr. Biswanath Majumder, Advocate. For Respondent(s) : Mr. Samarjit Bhattacharjee, Adv.

Mr. Bijan Saha, Advocate.

In C.O (FA). No.01/2022.

For Cross objector(s) : Mr. Samarjit Bhattacharjee, Adv.

Mr. Bijan Saha, Advocate.

For Respondent(s) : Mr. Biswanath Majumder, Advocate.

      Date of hearing                  : 2nd February, 2022.
      Date of Judgment & Order :             23rd May, 2022.
      Whether fit for reporting        :     Yes/No.


                        JUDGMENT AND ORDER

This is an appeal under Section 173(1) of the Motor

Vehicles Act, 1988 (M.V. Act hereunder) by the Insurance Company

against the award dated 17.09.2019 passed by the Motor Accident

Claims Tribunal (Court No.3) in Case No. TS(MAC) 40 of 2018 whereby

the Tribunal awarded a sum of compensation of Rs.15,20,000/- along

with 9% annual interest thereon to the claimants on account of death

of the Nripendra Debbarma in a road traffic accident on 23.03.2018.

[2] The original claimants have also filed cross objection

against the said award of the tribunal seeking enhancement of the

compensation.

Law and facts involved in the appeal as well as in the cross

objection being common, they are taken up together for disposal by a

common judgment.

[3] The background facts of the case are as under:

MAC App. No.43/2021 & C.O (FA) No.01/2022.

Page - 3 of 16

Sri Ramendra Debbarma of Bharat Sardar Para of Khowai

district lodged a written ejahar with the Officer-in-Charge of Khowai

police station on 23.03.2018 alleging, inter alia, that at about 5.30

p.m on the day his younger brother Nripendra Debbarma was speaking

to some of his neighbours in front of the house of Nirmal Debbarma on

his way back home from Padmabil Bazar. At that time, the offending

truck bearing registration No.TR-01-F-1696 hit Nripendra Debbarma.

As a result, he was thrown off the road and he sustained fatal injuries.

The speeding vehicle also hit two other women who were there. All the

injured persons including Nripendra Debbarma were rescued by the

local residents and they were immediately taken to Khowai District

Hospital where Nripendra Debbarma was declared brought dead. The

injured women were admitted in hospital for treatment. After the

accident, the agitated mob set the offending vehicle on fire.

[4] Based on the FIR of the brother of the deceased, Khowai

P.S Case No.044 of 2018 under Sections 279, 338 and 304A IPC was

registered and investigation was taken up.

[5] Soon after the accident was reported to the police station,

the Officer-in-charge sent the accident information report to the

jurisdictional Motor Accident Claims Tribunal, Khowai. After conducting

investigation, the Investigating Officer laid charge sheet against the

accused driver of the offending vehicle namely, Litan Das for having

committed offence punishable under Sections 279, 338, 337 and 304A

MAC App. No.43/2021 & C.O (FA) No.01/2022.

Page - 4 of 16

IPC read with Section 184 M. V. Act. In the post mortem examination

report (Exbt.3) the autopsy surgeon opined as under:

"Acute trauma and brain hemorrhage and hemorrhage from multiple sites with crush injuries at pelvic region and multiple fractures and shock arising out of the injuries is the cause of death.

Time since death is in between 16 to 20 hours."

[6] Smt. Tarumala Debbarma, wife of the deceased and his

two sons namely, Brajil Debbarma and Raj Debbarma filed a petition

under Section 166 M. V. Act at the Tribunal claiming compensation of

a sum of Rs.40,00,000/- on account of the death of Nripendra

Debbarma in the said road traffic accident. The claimants asserted in

their claim petition that on the date of accident deceased was 45

years' old and he had a monthly income of about Rs.25,000/- from his

poultry business.

[7] The owner of the offending vehicle was impleaded as

respondent No.1 and Oriental Insurance Company Limited, Agartala

was impleaded as respondent No.2 in the claim petition.

[8] The respondents filed separate written statement. In his

written statement, the owner claimed that accident occurred due to

mechanical fault in the vehicle which was beyond the control of the

driver. The respondent asserted that despite regular checking of the

vehicle the driver did not notice such mechanical fault in the vehicle as

a result of which the accident took place. He claimed that his vehicle

was insured with the Oriental Insurance Company Limited and the

MAC App. No.43/2021 & C.O (FA) No.01/2022.

Page - 5 of 16

policy was alive on the date of occurrence. The respondent owner,

therefore, pleaded that liability arising out of the accident for paying

compensation would be borne by the insurer.

[9] The Insurance Company in the written statement filed on

24.09.2019 claimed that liability of the insurer would be subject to

production of valid documents of the vehicle and an operative

insurance policy. The respondent Insurance Company further claimed

that compensation claimed by the claimants were exorbitant and

disproportionate to the income of the deceased.

[10] In the course of trial Smt. Tarumala Debbarma, wife of the

deceased examined herself as PW-1. Smt. Swarani Debbarma who

witnessed the accident was examined as PW-2 and one Prafullya

Debbarma who issued the income certificate (Exbt.11) as the Vice

Chairman of Bharat Sardar Para ADC village was examined as PW-3.

[11] Besides adducing the oral evidence of the witnesses the

claimants also submitted the essential documents including the FIR,

certified copy of the post mortem certificate of the deceased, certified

copy of the charge sheet, survival certificate, birth certificate of the

deceased (Exbt.5), his Aadhar card and birth certificates of the

children of the deceased. The said documents were also admitted into

evidence on the side of the claimants.

[12] No oral evidence was adduced on behalf of the

respondents. However, the following documents were admitted into

evidence on admission on respondents' side. MAC App. No.43/2021 & C.O (FA) No.01/2022.

                                      Page - 6 of 16

              (i)       Registration certificate of the offending vehicle; (Exbt.A)
              (ii)      Insurance policy of the offending vehicle; (Exbt.A(ii)
              (iii)     Pollution Certificate; (Exbt.B)
              (iv)      Fitness Certificate; (Exbt.D)
              (v)       Route permit; (Exbt.E)
              (vi)      Driving licence of the accused; (Exbt.F)


[13]          In view of the assertions and denials of the parties

appearing from their pleadings and the documents adduced on their

behalf the trial Court framed the following issues in the suit:

(i) Whether the claim petition filed under Section 166 M. V. Act was maintainable.

(ii) Whether Nripendra Debbarma died in a road traffic accident on 23.03.2018.

(iii) Whether the said accident occurred due to rash and negligent driving of the offending vehicle.

(iv) Whether the claimant petitioners were entitled to compensation and if so, what would be a reasonable and fair amount of compensation.

(v) Whether the parties were entitled to any other relief.

[14] It was argued on behalf of the claimants that the eye

witness version proved that the accident occurred due to rash and

negligent driving of the offending vehicle. Counsel appearing for the

claimants also argued before the Tribunal that involvement of the

vehicle in the alleged accident was proved beyond reasonable shadow

of doubt because after the accident, the vehicle was detained and the

agitated mob set the vehicle on fire. Counsel of the petitioner also

MAC App. No.43/2021 & C.O (FA) No.01/2022.

Page - 7 of 16

argued that income of the deceased was proved by documentary

evidence (Exbt.11). Therefore, the claim of compensation was well

founded.

[15] Counsel appearing for the respondents mainly argued

before the Tribunal that negligence was not proved and moreover,

the claim of compensation was unreasonable and exorbitant because

the income of the deceased could not proved by the claimants by

adducing convincing evidence.

[16] The Tribunal on appreciation of evidence came to the

conclusion that the claim petition was perfectly in order which was

maintainable in law. The Tribunal also held that the claimant

succeeded in proving the fact that Nripendra Debbarma died in a road

traffic accident on 23.03.2018 and the accident occurred due to rash

and negligent driving of the offending vehicle.

[17] About the income of the deceased, tribunal did not accept

the claim of the petitioner that the deceased had a monthly income of

Rs.25,000/-. Tribunal guessed his monthly income at Rs.9,000/- as a

skilled labourer. Since he was 45 years old at the time of his death as

per his birth certificate (Exbt.5), the Tribunal in terms of the

Constitutional Bench Judgment of the Apex Court in National

Insurance Company Limited Vrs. Pranay Sethi and others;

reported in (2017) 16 SCC 680 made an addition of 25% of his

monthly income towards future prospect and worked out his annual

income at Rs.9000/- + Rs.2250/- (25% of Rs.9,000/-) x 12

MAC App. No.43/2021 & C.O (FA) No.01/2022.

Page - 8 of 16

=Rs.1,35,000/-. Since the deceased was 45 years of age the Tribunal

in terms of the table laid down by the Apex Court in its judgment in

the case of Sarla Verma(Smt.) and others Vrs. Delhi Transport

Corporation and Another: reported in (2009) 6 SCC 121 applied

multiplier 14 and worked out the compensation for loss of income at

Rs.1,35,000 X 14 =Rs.18,90,000/-. Since the number of dependant

family members of the deceased at the time of his death was three,

Tribunal in terms of the law enunciated by the Apex Court in the case

of Sarla Verma(supra) deducted 1/3rd from the said amount of

(Rs.18,90,000 ÷ 3) Rs.6,30,000/- and after such deduction total

amount of compensation payable to the claimants for loss of income

came to be Rs.18,90,000 - 6,30,000 = Rs. 12,60,000/-.

[18] With this amount Tribunal added Rs.30,000/- for cost of

medicines and transportation, Rs.15,000/- for loss of estate,

Rs.40,000/- for loss of consortium for the surviving wife, Rs.25,000/-

for funeral expenses, Rs.50,000/- for loss of care and guidance and

Rs.1,00,000/- for loss of love and affection and, as such, Tribunal

assessed total amount of compensation at Rs.15,20,000/-. The

following table would demonstrate the various pecuniary and non-

pecuniary heads under which compensation was granted by the

Tribunal.

               Sl.                                        Amount
                             Heads
               No.
                1. Loss of income                   Rs.12,60,000/-
                2.   Cost of medicines and          Rs.     30,000/-
                     transportation.
                3.   Loss of estate                 Rs.     15,000/-

MAC App. No.43/2021 & C.O (FA) No.01/2022.

Page - 9 of 16

4. Loss of consortium for wife Rs. 40,000/-

                5.    Funeral expenses               Rs.     25,000/-
                6.    Loss of care and guidance      Rs.     50,000/-
                7.    Loss of love and affection     Rs. 1,00,000/-
                                         Total:      Rs.15,20,000/-

On this amount, Tribunal granted interest at the rate of

9% per annum from the date of filing of the claim petition till

disbursement.

[19] After the present appeal was filed, the claimant

petitioners also filed a cross-objection against the impugned award

which has been registered as C.O(FA) No.01 of 2022.

[20] I have also heard the counsel for the parties in the cross

objection. They made similar submissions.

[21] In MAC App. No.43 of 2021 the appellant insurance

company has challenged the impugned award mainly on the following

grounds:

(i) Tribunal has worked out the compensation payable to the claimants against the settled principles of law.

(ii) Tribunal did not appreciate the fact that the autopsy surgeon recorded the age of the deceased as 48 years. Ignoring the opinion of the autopsy surgeon, Tribunal erroneously relied on the birth certificate of the deceased and came to the conclusion that deceased was 45 years of age at the time of his death.

(iii) Tribunal did not consider the fact that the claimants could not adduce any proof with regard to the income of the deceased.

MAC App. No.43/2021 & C.O (FA) No.01/2022.

Page - 10 of 16

(iv) Tribunal did not also appreciate the fact that the offending vehicle committed breach of the insurance policy by carrying passengers in violation of the permit of the vehicle.

(v) Tribunal did not consider the fact that negligence which is a sine qua non in proving a claim case could not be established by the claimant petitioners.

[22] The cross objection has been filed by the claimant

petitioners mainly on the following grounds:

(i) Tribunal arbitrarily worked out the monthly income of the deceased at Rs.9,000/- ignoring the evidence of the claimant-petitioners that deceased actually used to earn Rs.25,000/- per month.

(ii) Tribunal did not award any amount towards loss of consortium to the children of the deceased.

(iii) Tribunal awarded lesser amount for loss of love and affection which should have been Rs.3,00,000/- in terms of the decision of the Apex Court in the case of M.H. Uma Maheshwari and others Vrs. United India Insurance Company Limited and Another; reported in (2020) 6 SCC 400.

[23] Heard Mr. Biswanath Majumder, learned counsel

appearing for the appellant Insurance Company and Mr. Samarjit

Bhattacharjee appearing along with Mr. Bijan Saha, learned counsel

for the claimant-petitioners as well as for the cross-objectors.

[24] In the course of his argument, Mr. Majumder, learned

counsel has contended that the amount awarded by the Tribunal is

absolutely unreasonable which is not founded on evidence. Counsel MAC App. No.43/2021 & C.O (FA) No.01/2022.

Page - 11 of 16

contends that the claimants could not adduce any evidence in support

of the income of the deceased. According to Mr. Majumder, learned

counsel the Tribunal erroneously assessed the monthly income of the

deceased at Rs.9,000/- without evidence. Counsel has also contended

that the negligence was not proved in the case and without proving of

negligence Tribunal should not have awarded any amount of

compensation for the death of the deceased. It is further argued by

Mr. Majumder, learned counsel of the Insurance Company that

Tribunal has awarded an exorbitant amount towards interest on the

amount of compensation. Counsel urges the Court to reduce the rate

of interest awarded by the Tribunal. Mr. Majumder, learned counsel

has further contended that the compensation worked out by the

Tribunal should be revisited in appeal and it should be reduced to a

reasonable sum.

[25] Mr. Samarjit Bhattacharjee, learned counsel appearing for

the claimant petitioners on the other hand urges the Court to enhance

the amount of compensation for loss of love and affection from

Rs.1,00,000/- to Rs.3,00,000/- in view of the decision of the Apex

Court in the case of M. H. Uma Maheshwari (supra). Mr.

Bhattacharjee, learned counsel appearing for the claimant

respondents who are also the cross objectors in C.O(FA) No.01 of

2022 contends that no amount of compensation has been awarded to

the children of the deceased towards loss of consortium. Relying on

the decision of the Apex Court in case of New India Assurance

Company Limited Vrs. Somwati and other; reported in (2020) 9

MAC App. No.43/2021 & C.O (FA) No.01/2022.

Page - 12 of 16

SCC 644 counsel contends that the children of the deceased are

entitled to parental consortium which has been denied to them by the

Tribunal. Counsel therefore, urges for allowing parental consortium to

the children of the deceased.

[26] In so far as the claim of the claimant-cross objectors for

raising the compensation for loss of love and affection is concerned, it

appears that in the case of M. H. Uma Maheshwari (supra) which

has been relied on by the counsel of the petitioners as well as the

cross objectors, the Apex Court held that since the appellant was

given compensation of a sum of Rs.1,00,000/- on account of loss of

consortium she was not entitled for another one lakh for loss of love

and affection. Similarly, in the case of New India Assurance

Company Limited Vrs. Somwati (supra) which has been relied on

by the counsel of the claimants-cross objectors, the Apex Court while

observing that children of the deceased are entitled to parental

consortium held that loss of love and affection is comprehended in

loss of consortium and hence there is no justification to award

compensation towards loss of love and affection as a separate head

(Para-33 of the said judgment).

[27] Considered the submissions made by learned counsel

representing the parties and perused the entire record which has

been made available before this court.

[28] Submission of counsel of the appellant that no negligence

was proved is not acceptable because standard of proof of negligence

MAC App. No.43/2021 & C.O (FA) No.01/2022.

Page - 13 of 16

in a motor accident claim case is different from the standard of proof

required in a criminal charge of negligence. Apparently, in this case

police investigation was conducted and charge sheet was also laid

against the accused driver of the offending vehicle for rash and

negligent driving. Moreover, PW-2, Smt. Swarani Debbarma

categorically stated in her examination-in-chief that at the material

time when she was standing in front of the house of Nirmal Debbarma

along with the deceased and others, the offending vehicle appeared in

an excessive speed and hit her and others including the deceased. As

a result, all of them sustained injuries and they were taken to hospital

and on the way to hospital Nripendra Debbarma died. The PW was

taken to GBP Hospital at Agartala where she received treatment as an

indoor patient. In her cross-examination she reaffirmed the fact that

accident occurred due to rash and negligence driving of the offending

vehicle. She was cross examined on behalf of the appellant Insurance

Company. But her evidence could not be impeached to any extent.

Therefore, the contention of the counsel of the appellant that

negligence was not established by the claimants does not gain

ground. The submission of the counsel of the appellant that an

exorbitant amount of compensation has been awarded in the case is

also devoid of merit. Obviously, the Tribunal did not entertain the

claim of the claimant-petitioners that deceased used to earn

Rs.25,000/- per month since the claimants could not produce any

convincing proof of income of the deceased. Rather, the Tribunal

guessed his monthly income at Rs.9,000/- per month. Admittedly, the

MAC App. No.43/2021 & C.O (FA) No.01/2022.

Page - 14 of 16

deceased was 45 years old at the time of his death. His wife as PW-1

claimed that her husband was the only earning member of their

family and with his earning he used to maintain his wife and two

school going children. She stated that her husband had a poultry

business in Padmabil Bazar. During her cross examination, except

giving a suggestion to the PW denying the income of the deceased,

appellant Insurance Company could not embellish her evidence to any

extent. In view of such evidence, Tribunal did not commit any error in

working out the monthly income of the deceased at Rs.9,000/-. It

would appear that the Tribunal applied the correct multiplier and also

made deduction towards personal and living expenses of the

deceased in terms of the law laid down by the Apex Court in the case

of Sarla Verma(supra). Tribunal had also made addition towards

future prospect in terms of the judgment of the Apex Court in the

case of Pranay Sethi (supra) to work out the loss of income.

[29] But the tribunal should have granted compensation for

the loss of consortium to the children of the deceased. Moreover,

Tribunal seems to have awarded compensation of a sum of

Rs.25,000/- for funeral expenses. In terms of the judgment of the

Apex Court in the case of Pranay Sethi (supra), claimants will be

entitled to Rs.15,000/- for funeral expenses. Since the children of the

deceased are entitled to loss of consortium no amount of

compensation can be given to them under the head of loss of love

and affection because the Apex Court in the case of New India

Assurance Company Limited Vrs. Somwati (supra) has held that

MAC App. No.43/2021 & C.O (FA) No.01/2022.

Page - 15 of 16

"loss of love and affection" is comprehended in "loss of consortium"

and there is no justification to award compensation towards "loss of

love and affection" as a separate head.

[30] For the foregoing reasons, the amount of compensation

awarded by the Tribunal is reassessed by this court as under:

               Sl.                                           Amount
                               Heads
               No.
                1. Loss of income                      Rs.12,60,000/-
                2.   Cost of medicines and             Rs.    30,000/-
                     transportation.
                3.   Loss of estate                    Rs.    15,000/-
                4.   Funeral expenses                  Rs.    15,000/-
                5.   Loss of consortium for the wife
                     and two [email protected] Rs.40,000/-
                                                       Rs. 1,20,000/-
                     per head (Rs.40,000 x 3) =
                     Rs.1,20,000/-
                                              Total:   Rs.14,40,000/-


[31]          In view of the given facts and circumstances of the case,

this Court is not inclined to interfere with the rate of interest awarded

by the Tribunal.

[32] The appellant insurance company is directed to deposit

the whole amount of compensation of the sum of Rs.14,40,000/-

(rupees fourteen lakhs forty thousand) along with interest accrued

thereon at the rate awarded by the Tribunal within a period of

8(eight) weeks from today. Amount already paid, if any, including

statutory deposit shall be adjusted.

[33] Each of the claimants shall be entitled to equal share of

the compensation awarded. 75% share of each of the claimants shall

MAC App. No.43/2021 & C.O (FA) No.01/2022.

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