New India Assurance Company ... vs Smti. Ashru Rani Debbarma
2023 Latest Caselaw 108 Tri

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                    HIGH COURT OF TRIPURA
                      _A_G_A_R_T_A_L_A_
                      MAC. APP. No.92 of 2022
New India Assurance Company Limited, Agartala Division, 4 Mantribari
Road, P.S. West Agartala, District-West Tripura, represented by its
Divisional Manager (Insurer of the vehicle bearing No.NL-01-L-5403,
Truck).
                                                 ......Appellant(s)
                            VERSUS
1. Smti. Ashru Rani Debbarma, W/O. Late Ashok Kumar Dangshu.
2. Miss Suari Dangshu, D/O. Late Ashok Kumar Dangshu.
3. Miss. Gratel Dangshu, D/O. Late Ashok Kumar Dangshu.
4. Smti. Manju Dangshu, W/O. Late Prabhat Dangshu.
All are residing at Village-Binanda Debbarma Para, North Dhumachara,
P.O. Dhumachara, P.S. Dhumachara, District-Dhalai Tripura.
                                             ......Claimant-Respondent(s)

5. Sri Pinki Roy, S/O. Hiran Chandra Roy, resident of Jatindra Das Para, West Karamchera, P.O. Masli, P.S. Manu, District-Dhalai Tripura.

                                                  .....Owner-Respondent(s)
For Appellant(s)         :     Mr. G.S. Das, Advocate.
For Respondent(s)        :     Mr. S. Bhattacharjee, Advocate.

            HON'BLE THE CHIEF JUSTICE (ACTING)

Date of hearing and Judgment : 24th January, 2023.

JUDGMENT & ORDER(ORAL)

Heard Mr. G.S. Das, learned counsel appearing for the

appellant-insurance company and also heard Mr. S. Bhattacharjee, learned

counsel appearing for the claimant-respondents.

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

04.08.2022 passed by the learned Member, Motor Accident Claims

Tribunal, Dhalai Judicial District, Ambassa in T.S(MAC) No.10 of 2021

whereby the Tribunal awarded compensation of Rs.91,35,152/- in favour of

the claimants with interest @ 9% per annum from the date of filing of the

claim petition.

[3] It was alleged that on 12.07.2021 in a motor vehicle accident

at Magazine Para Ashram School, Ambassa on Assam-Agartala road,

Ashok Kr. Dangshu succumbed to his injuries sustained by him in the

accident. When they reached at Magazine Para Ashram School on

Assam-Agartala road, one 12 wheeler truck bearing registration No.NL-

01-L-5403 was coming from opposite direction and suddenly dashed the

motorbike of the deceased and fell him down under the back wheel of the

right side of the truck. It was alleged that the offending vehicle(truck) was

driven at high speed and in rash and negligent manner. Immediately after

the accident the deceased was taken to Kulai District Hospital for

postmortem. Immediately after the accident the dead body was handed

over to the family members of the deceased. At the time of accident, the

deceased was 43 years of age and was employed as Physical Instructor

under the State Government.

[4] The claimants, in their claim petition, averred that the

accident occurred due to rash and negligent driving of the driver of the

offending vehicle bearing registration No.NL-01-L-5403. In this

connection, a specific case vide Ambassa P.S Case No.33 of 2021 under

Sections 279/304(II) of IPC and Section 184 of MV Act and Section 3 of

the Prevention of Damage to Public Property Act was also registered.

They further stated that at the time of accident the deceased was a

Physical Instructor under the State Government and was posted at

Eklavya Model Residential School, Kumarghat and his salary was

Rs.54,732/- per month and subsequently claimed compensation of

Rs.99,54,976/- with interest.

[5] The opposite party, owner of the offending vehicle filed

written statement inter alia contending that he was the registered owner

of the said offending vehicle and at the time of accident it was insured

with the New India Assurance Company Limited. Subsequently, he urged

for fixing the liability on its insurer to pay the compensation. The

insurance company, on the other hand, apart from denying the averments

made in the claim petition inter alia contended that there was no cause of

action to file the instant suit and prayed for dismissal of the same.

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

following issues were framed :

(i) Is the Suit Maintainable in its present form and nature?

(ii) Whether the husband of the claimant-petitioner namely, Ashok Kumar Dangshu (now deceased) met with an accident on 12.07.2021 at 6 am at Magazine Paa near Ashram School on Assam-Agartala road under Ambassa Police Station while going towards Kumarghat by riding his motorcycle bearing No.TR04- 9974 (Hero Achiever) due to rash and negligent driving of the twelve wheeler Truck bearing registration No. NL-01-L-5403 by its driver?

(iii) Whether the claimant-petitioners are entitled to get any compensation and if so, what should be the quantum of compensation?

(iv) Who is liable to pay the compensation?

(v) What other relief or reliefs the parties to this suit are entitled to get?

[7] To establish the claim, the claimants examined two witnesses

including the petitioner as P.W.1 and Shri Pintu Debbarma as P.W.2 and

exhibited the documents in support of his claim. On the other hand, the

opposite party had examined himself as OPW-1 and also exhibited the

documents.

[8] The learned Tribunal after framing the issues and appreciating

the evidence on record, awarded a sum of Rs.91,35,152/- along with

interest at the rate of 9% per annum as compensation to the claimant. Since

the deceased was a Government servant, he assessed the income of the

deceased at Rs.54,732/- per month. 30% of the above was added towards

future prospect i.e. Rs.16,420/- (rounded off). Therefore, the amount

worked out to Rs.71,152/-. 1/4th of the amount was deducted as personal

and living expenses of the deceased i.e. Rs.(71,152 - 17,788) = Rs.53,364/.

After applying the multiplier of 14 as per the judgment of the Hon'ble

Supreme Court in case of Sarla Verma (Smt.) and others versus Delhi

Transport Corporation and another reported in (2009) 6 SCC 121 the

compensation worked out to Rs.(53,364 x 12 x 14) = Rs.89,65,152/- only.

For loss of consortium, an amount of Rs.40,000/- was awarded, for loss of

estate an amount of Rs.15,000/-, an amount Rs.15,000/- was awarded for

funeral expenses, and for loss of love and affection, an amount of

Rs.1,00,000/- was awarded by the Tribunal. Thus, the total compensation

awarded by the Tribunal worked out to Rs.(89,65,152 + 40,000 + 15,000 +

15,000 + 1,00,000) = Rs.91,35,152/-.

[9] The Tribunal while dealing with the question of liability

observed that though the owner of the offending vehicle claimed that his

vehicle was insured with the New India Assurance Company Limited and

although in support of his claim he proved the policy of insurance,

however, the learned Tribunal observed that it was not the case of the

insurance company that his vehicle was not insured with them. It was,

therefore, held that the insurance company being the insurer of the

offending vehicle was liable to satisfy the award. The operative portion of

the judgment is reproduced hereunder :

"(i) Resultantly the application under Section 166 of the Motor Vehicles Act, 1988 filed by the claimant-petitioners is allowed on contest.

(ii) Claimant petitioners are entitled to get the award of Rs.91,35,152 only with 9% simple interest per annum from the date of registration of claim i.e. w.e.f. 03.09.2021 till the date of realization thereof.

(iii) The petitioner No.1 exclusively shall be entitled to get the amount of Rs.40,000/- as consortium, the petitioners No.2 and 3 exclusively shall also be entitled to get the amount of Rs.1,00,000/- (Rs.50,000/- each) as awarded under the head loss of love and affection. The claimant petitioners No.1, 2, 3 & 4 shall have equal share on the rest amount."

[10] Mr. G.S Das, learned counsel appearing for the appellant-

insurance company contends that the learned Tribunal awarded the

compensation towards the loss of contribution as per salary certificate of

the deceased without deducting the professional tax of Rs.208/- per month

which would approximately amount to Rs.35,000/- all through and the

same ought to have been deducted at the time of assessment of

compensation. He further contends that the learned Tribunal has illegally

awarded interest @ 9% per annum on the awarded amount which is

excessive considering the prevailing rate of interest and as such, the rate of

interest may be reduced.

[11] On the other hand, Mr. S. Bhattacharjee, learned counsel for

the claimant-respondents has strongly opposed the appeal contending that

the learned Tribunal did not commit any error in passing the award. The

rate of interest awarded by the learned Tribunal does not call for any

interference. The learned Tribunal passed the award after appreciating the

evidence on record. Accordingly, he prays for dismissal of the appeal filed

by the appellant-insurance company.

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

this Court is of the considered view that the interest awarded by the

Tribunal @ 9% per annum is on the higher side and also the learned

Tribunal did not take into account the professional tax of the claimant of

Rs.208/- per month which ought to have been deducted at the time of

assessment of compensation. Accordingly, the interest awarded by the

learned Tribunal is reduced from 9% to 7.5% per annum which this Court

is uniformly fixing in all such matters. Since the claimant submitted salary

certificate before the Tribunal which shows the Profession tax of Rs.208/-

per month, the same shall be deducted from the total amount of

compensation. Accordingly, insofar as the professional tax @ Rs.208/- per

month is concerned which would approximately amount to Rs.35,000/- all

through, is reduced from the awarded amount and the modified amount of

compensation is assessed at Rs.(91,35,152 - 35,000)=Rs.91,00,152/-.

[13] Accordingly, the award of the learned Tribunal is modified

and the claimants are entitled to receive Rs.91,00,152/- along with 7.5%

from the date of filing of the claim petition till deposit/payment of the

awarded amount. The insurance company shall deposit the awarded amount

of compensation to the account of the Registrar General, High Court of

Tripura within a period of 2(two) months from today and on such deposit

the claimants are at liberty to withdraw the same as per procedure

unconditionally. The rest of the directions/orders passed by the learned

Tribunal will remain the same.

[14] In view of the above, the appeal of the insurance company is

partly allowed and disposed of to the extent as indicated above.

[15] Send down the lower court records forthwith.

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

CHIEF JUSTICE (ACTING)

Pulak/Dipesh