Tripura High Court
Insurer vs Smt. Sadhana Debnath on 5 October, 2023
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HIGH COURT OF TRIPURA
AGARTALA
MAC APP NO.07 OF 2023
The National Insurance Company Ltd.,
(To be represented by Senior Divisional Manager),
Agartala Divisional Office, 42, Akaura Road,
P.O.- Agartala, District- West Tripura, Pin-799001.
......... Insurer Appellant(s)
Vs.
1. Smt. Sadhana Debnath,
W/o. Late Rabindra Kumar Debnath.
2. Smti. Gita Debnath,
W/o. Late Manoranjan Debnath,
D/o- Late Rabindra Kumar Debnath.
3. Sri Haripada Debnath,
S/o. Late Manoranjan Debnath.
Sl. Nos. 1 to 3 are Residents of- Krishnanagar,
Majalispur, Ranirbazar, P.S.- Ranirbazar,
District - West Tripura.
4. Smt. Usha Rani Debnath,
W/o. Late Dilip Debnath,
Resident of Briddanagar, Majalispur, Ranirbazar,
P.S.- Ranirbazar, District- West Tripura.
5. Smti Bhabani Debnath,
W/o Gopal Debnath,
D/o- Late Rabindra Kumar Debnath,
Resident of Old Agartala, Champamura,
P.S.- Jirania, District- West Tripura.
......... Claimant Respondent(s).
6. Sri Prettyrose Debbarma,
S/o. Sri Ranjit Debbama,
Resident of Kumar Sadha Para, Champamura,
P.S.- Jirania, District- West Tripura,
Owner of Motor Bike No.TR.01-AH-6460.
........Owner Respondent(s)
For the Appellant(s) : Mr. A.K. Deb, Advocate.
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For the Respondent(s) : Mr. D. Debnath, Advocate.
CO(FA) NO.6 OF 2023
1. Smt. Sadhana Debnath,
W/o. Late Rabindra Kumar Debnath.
2. Smti. Gita Debnath,
W/o. Late Manoranjan Debnath,
D/o- Late Rabindra Kumar Debnath.
3. Sri Haripada Debnath,
S/o, Late Manoranjan Debnath.
Sl. Nos. 1 to 3 are Residents of- Krishna Nagar,
Majalispur, Ranirbazar, P.S.- Ranirbazar,
District - West Tripura.
4. Smt. Usha Rani Debnath,
W/o. Late Dilip Debnath,
D/o Lt. Rabindra Kumar Debnath.
5. Smti Bhabani Debnath,
W/o Gopal Debnath,
D/o- Late Rabindra Kumar Debnath,
......... Claimant Respondent/Cross Objector(s)
Vs.
1. The National Insurance Company Ltd.,
Represented by Senior Divisional Manager,
Agartala Divisional Office, 42, Akaura Road,
P.O.- Agartala, District- West Tripura, Pin-799001.
......... Insurer-Appellant-Respondent(s)
2. Sri Prettyrose Debbarma,
S/o. Sri Ranjit Debbama,
Resident of Kumar Sadha Para, Champamura,
P.S.- Jirania, District- West Tripura,
Owner of Motor Bike No.TR.01-AH-6460.
........Owner Respondent(s)
For the Appellant(s) : Mr. D. Debnath, Advocate.
Page 3 of 12
For the Respondent(s) : Mr. A.K. Deb, Advocate.
Date of hearing and delivery of
Judgment & Order : 05.10.2023.
Whether fit for reporting : YES.
HON'BLE MR JUSTICE T. AMARNATH GOUD
JUDGMENT AND ORDER(ORAL)
The present appeal has been filed under Section 173
of the M.V. Act against Award dated 14.09.2022 passed in
T.S.(MAC)75 of 2019 by Member, Motor Accident Claims Tribunal,
Court No.1, Agartala, West Tripura for modifying the impugned
Award towards just and proper compensation and the instant
cross-objection has been filed by the claimant-respondents No.1 to
5 against the appeal herein filed by the Insurer Appellant for
modification and enhancement of the award dated 14.09.2022.
Both the instant appeal and cross objection are heard
together and taken up for final disposal by this common Judgment
and Order.
2. The brief fact of this case is that on 12.03.2019 one
Rabindra Kumar Debnath, since deceased, was coming to his
house from Old Agartala on foot keeping left side of the road. At
about 13.45 hrs., when he reached near Khayerpur Bazar Tri-
junction, a motorbike bearing registration No.TR-01-AH-6460
being driven rashly and negligently suddenly dashed him. As a
result, he fell on the road and sustained grievous injuries on his
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person. After the accident, he was shifted to AGMC & GBP
Hospital, and got him admitted there. But during treatment, he
succumbed to his injuries.
Concerning the said accident, a police case was
registered with the Bodhjungnagar Police Station vide
Bodhjungnagar P.S. Case No.15 of 2019 under Sections 279/304-
A of I.P.C. It is also stated that the deceased was a pensioner
having a monthly pension of Rs.15,000/- and at the time of the
accident, he was aged 75 years. The claimants being the legal
heirs of the deceased claimed compensation at Rs.39,70,000/- in
total.
3. The owner-respondent of the motorbike by filing
written statement categorically denied the accident and at the
same time he stated that his motorbike was duly insured with the
Noticee, National Insurance Company Ltd., during the period from
16.08.2018 to 15.08.2019 and as such, if any, compensation is
awarded, that should be paid by the insurer of the motorbike.
4. O.P. No.2, National Insurance Company Ltd. in their
written statement stated that the petition is not maintainable for
non-joinder and mis-joinder of necessary and proper parties. The
Insurance Company also denied and disputed all the averments
made in the claim petition such as FIR, ejahar, charge sheet, age,
income, documents relating to medical treatment, and other
documents except whatever was specifically admitted by them.
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The Insurance Company also denied and disputed the valid
registration, fitness, route permit, and driving licence of the driver
at the relevant date and time of the accident. It is also stated by
them that the insurance is a contractual obligation between the
insurer and the insured and if any breach of contract by the
insured is there, the insured himself would be liable to indemnify
the claimant if any award is given by the Tribunal.
5. Based on pleadings and documents of the parties,
the following issues were framed:-
(1) Did deceased Rabindra Kr. Debnath die due to road traffic accident
occurred on 12.03.2019 at about 13.45 hrs. Khayerpur market tri-
junction under Bodhjungnagar P.S. out of use of vehicle bearing
registration No.TR-01-AH-6460 (Motor-cycle) due to rash and negligent
driving of its driver?
(2) Are the petitioners entitled to get compensation? If so, to what
amount and who is/are liable to pay the same ?
(3) To what other reliefs are the parties entitled ?
6. During the hearing, claimant No.1 Smti. Sadhana
Debnath examined herself as PW-1 and the following documents
such as certified copy of FIR of Bodhjungnagar P.S. Case
No.15/2019 in 2 sheets (Exbt.1), certified copy of ejahar
(Exbt.2), two seizure lists (Exbt.3 & 3/1), certified copy of the
post mortem report of Rabindra Kr. Debnath in 4 sheets
(Exbt.4), certified copy of charge sheet in 7 sheets (Exbt.5),
photocopy of the pension payment order book of the deceased
(Exbt.6) and vehicle screen reports in 2 sheets (Exbt.7 & 7/1)
were taken into evidence on her behalf. The photocopy of the
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Pension Payment Order book was marked exhibit on comparison
with the original. She also examined another witness namely, Sri
Dipankar Das as PW2. No oral or documentary evidence has been
adduced either by the O.P. or the Noticee Insurance Co., in
support of their case.
7. After hearing the parties and perusing the evidence
on record, the learned Tribunal passed the impugned award dated
14.09.2022 in the following manner:-
"
ORDER
It is, therefore, held that the petitioners are entitled to
get compensation of Rs.6,97,755/- (Rupees six lakh ninety seven thousand
seven hundred fifty five) only with interest @ 6%, per annum,
from01.04.2019 i.e. from the date of filing of the claim petition till the date
of actual payment. The Noticee, National Insurance Co. Ltd., Agartala
Branch is directed to make payment of compensation with interest within
30 days from today.
In the claim petition it is found that there were 5
claimants and they are the wife, son and married daughters of the
deceased. As such, out of the awarded amount of compensation inclusive
of interest, the petitioner no.1 will get 40% and remaining petitioners i.e.
petitioner nos.2, 3, 4 and 5 will get 15% each."
8. Being aggrieved and dissatisfied with the impugned
Award, National Insurance Company Ltd.O.P. No.2 has preferred
this present appeal to modify the quantum of the award dated
14.09.2022 towards "just and proper compensation" after setting
aside the impugned award passed in T.S. (MAC)75 of 2019. Vice
versa the present cross objection has been filed by the claimant-
respondents No.1 to 5 against the appeal herein filed by the
Insurer Appellant for modification and enhancement of the award
dated 14.09.2022.
9. Heard Mr. A.K. Deb, learned counsel appearing for the
Insurance Company as well as Mr. D. Debnath, learned counsel
appearing for the claimants.
10. Mr. A.K. Deb, learned counsel appearing for the
appellant-Insurance Company submitted that as per the principle
held by the Hon'ble Apex Court in Sarla Verma(Smt.) and ors.
Vs. Delhi Transport Corporation and anr., reported in (2009)
6 SCC 121, multiplier 5(five) is allowed up to the age schedule of
66 years to 70 years. The same has been reiterated by the Hon'ble
Apex Court in the Judgment passed in National Insurance
Company Ltd. Vs. Pranay Sethi and ors., reported in (2017)
16 SCC 680. But the learned Tribunal wrongly allowed multiplier 5
in the present case where according to the Tribunal itself, the age
of the deceased was 78 years at the time of the death. So the
claimant-respondents are not entitled to get the benefit of
multiplier with regard to the annual income of the deceased.
Mr. Deb, learned counsel also submits that except the
claimant-respondent No.1, i.e., the wife of the deceased, other
claimants i.e., the 3(three) daughters and 1(one) son of the
deceased cannot be considered as dependent on the income of the
deceased who was aged 78 years. Moreover, the son and
daughters of the deceased are all major and married and not
dependent on the income of the deceased. Further claimants have
not made any prayer in the claim petition that son and daughters
herein are dependants. So, in the present case, the wife of the
deceased i.e., the claimant-respondent No.1 being the only
dependent, the deduction towards personal and living expenses of
the deceased should be 1/3rd instead of 1/4th.
Mr. Deb, learned counsel further submits that the
income of the deceased has also been wrongly assessed at
Rs.5,774/-, since from the Pension Payment Order, it is revealed
that the net pension of the deceased was only Rs.2,555/-.
11. On the other hand, Mr. D. Debnath, learned counsel
appearing for the claimant-respondents submits that in terms of
column(4) of the tabular chart given in Sarla Verma(supra),
multiplier 5 is applicable for the age group above 65 years.
According to the Hon'ble Apex Court, the table given in the said
Judgment should be followed as the table is the schedule.
On the point of dependency, learned counsel further
submits that all the claimants were dependent on the income of
the deceased and from the pension amount, the deceased used to
support all the claimants.
Further learned counsel appearing for the claimant-
respondents submits that he has filed the cross objection because
there are 5 numbers of Claimant Petitioners/Cross Objectors and
each one of Cross Objectors were/are entitled to receive
consortium, but the learned Tribunal did not determine the amount
of consortium while passing the award. In terms of the Hon'ble
Apex Court Judgment passed in Magma General Insurance
Company Ltd. Vs. Nanu Ram alias Chuhru Ram and ors.,
reported in (2018) 18 SCC 130, the claimants herein are entitled
to the amount of consortium.
12. Heard both sides and perused the evidence on record.
CONCLUSION
13. According to the Pension Payment Order book, on the
date of the accident, the age of the deceased was 78 years. So, in
terms of the multiplier as made applicable under the table decided
at Column No.(4) in Sarla Verma(supra), multiplier 5 is to be
applied for the age group of 65 years and above, the same is taken
on record. Accordingly, the first point of argument of Mr. Deb,
learned counsel appearing for the appellant-Insurance Company is
answered in favour of the claimants. Here the argument of Mr.
Deb, learned counsel that in Sarla Verma(supra) multiplier
5(five) is allowed up to the age schedule 66 years to 70 years does
not stand because the same was said the by Hon'ble Apex Court in
the said Judgment in the context of other cases. Therefore, the
age of the deceased 78 years is considered as per table 65 years
and above and considered the case of the claimants accordingly as
there is no restriction up to 70 years. The lifespan as per table can
be beyond 70 years. Thus, the argument of the Insurance-counsel
is rejected.
14. Now on the point of deduction towards personal and
living expenses, the claim has been filed by 5(five) claimants i.e.,
the widow of the deceased and the remaining 4(four) major
married son and daughters of the deceased. So, accordingly, the
1/4th deduction which is given by the Tribunal below needs to be
modified to 1/3rd as only the widow is entitled as dependent. The
argument on this point advanced by Mr. Deb, learned counsel is
taken on record, and the same is accordingly answered and the
observation made by the Tribunal below to this effect is modified.
Accordingly, the deduction towards personal and living expenses
as per Pranay Sethi(supra) is reduced from 1/4th from 1/3rd.
15. In so far as the income of the deceased is concerned,
the deceased being a retired employee and as per his Pension
Payment Order book, the amount he was drawing was Rs.2,555/-
per month and the learned Tribunal below has considered Rs.
14,839/- per month by calculating his future DAs and other
emoluments which are entitled as per law. The same is not
disturbed and the said argument as advanced by Mr. Deb, learned
counsel is rejected and the issue is decided favour of the
claimants.
16. The present Cross objection has been filed by the
claimants who are the widow, major, and married son and
daughters of the deceased. According to this Court, all the cross
objectors are entitled to Rs.40,000/- each for loss of consortium
following the law laid down by the Hon'ble Apex Court in Magma
(supra), and the same is awarded.
17. As quoted supra, the Tribunal below awarded a total
compensation of Rs.6,97,755/- only with interest @ 6%, per
annum, from 01.04.2019 i.e. from the date of filing of the claim
petition till the date of actual payment. The break up of the said
total compensation is as follows:-
"Rs.14,839/-X 12 X 5 = Rs.8,90,340/- for loss of
dependency, after 1/4th deduction on account of personal and
living expenses of the deceased, the amount comes to
Rs.8,90,340/- - Rs.2,22,585= Rs.6,67,755/- and after adding
Rs.15,000/- each for loss of estate and on the count of funeral
expenses, the total amount is assessed at Rs.6,67,755/- +
Rs.15,000/- + Rs.15,000/- = total Rs.6,97,755/- only".
18. Now in terms of the present appeal and cross
objection as stated herein supra, the total compensation to be
awarded to the claimants herein stand as under:-
"i. Rs.8,90,340/- for loss of dependency.
ii. After the deduction of 1/3rd on account of
personal and living expenses of the deceased, the net amount
comes to Rs.8,90,340/- - Rs.2,96,780/- = Rs.5,93,560/-.
iii. After the addition of Rs. 40,000/- each for the
claimants herein in terms of loss of consortium, the amount
comes to Rs.40,000 X 5= Rs.2,00,000/- + Rs.5,93,560/- =
Rs.7,93,560/-
iv. After the addition of Rs.15,000/- each for loss of
estate and on the count of funeral expenses, the total amount
is assessed at Rs.7,93,560/- + Rs.15,000/- + Rs.15,000/- =
Rs.8,23,560/- only".
19. So, accordingly in terms of the above modification
the total award of compensation to the claimants herein is
assessed at Rs.8,23,560/- (Rupees eight lakh twenty-three
thousand five hundred sixty) only. Except for the said amount,
other direction(s) as given by the learned Tribunal below shall
remain intact.
20. Accordingly, with the above observation and
direction, the present appeal and the cross objection are allowed
to the extent indicated here-in-above. Draw the decree
accordingly.
21. As a sequel, stay if any stands vacated. Pending
application(s), if any also stands closed.
JUDGE
suhanjit
RAJKUMAR Digitally
RAJKUMAR
signed by
SUHANJIT SUHANJIT SINGHA
Date: 2023.10.10
SINGHA 12:58:53 +05'30'
