Sri Babulal Chakraborty vs Sri Paltu Saha
2023 Latest Caselaw 796 Tri

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                       HIGH COURT OF TRIPURA
                             AGARTALA
                       MAC APP. NO.81 OF 2022

   1. Sri Babulal Chakraborty,
   S/o. Late Chhaya Kanta Chakraborty,

   2. Sri Kishan Acharjee,
   S/o. Sri Madhu Acharjee,
   (Being minor represented by his natural guardian i.e. Appellant
   No.1)

   Both are resident of village-Jangalia, Bishalgarh
   P.S.- Bishalgarh, Dist- Sepahijala.
                                                 ......... Appellant(s)
                    Vs.
   1. Sri Paltu Saha,
   S/o Late Dinabandhu Saha,
   Village- Bishalgarh Madhyabazar
   P.S.- Bishalgarh, Dist- Sepahijala Tripura
   (Owner of TR 01 2777- Commandar Jeep)

   2. The Divisional Manager,
   The Oriental Insurance Company Ltd.,
   HGB Road, Agartala, Near Sarkar Nursing Home,
   P.S. West Agartala, Dist- West Tripura
   (Insurer of TR-01-2777 Commander Jeep)

                                            ........Respondent(s)

For the Appellant(s) : Mr. P.S. Roy, Advocate.

For the Respondent(s) : Mr. B. Majumder, Advocate.

Mr. S. Bhattacharjee, Advocate.

Date of hearing and delivery of Judgment & Order : 25.09.2023.

Whether fit for reporting : YES.

HON'BLE MR JUSTICE T. AMARNATH GOUD JUDGMENT AND ORDER(ORAL)

This present appeal has been filed under Section

173 of the Motor Vehicle Act, 1988 against the Judgment and

Award dated 06.04.2022 passed by the learned Motor Accident

Claims Tribunal, Sepahijala District, Bishalgarh, in the case

No.T.S(MAC)06 of 2018.

2. The brief fact of this case is that on 17.09.2016

at about 11.15 p.m., one Mamata Chakraborty (Acharjee) boarded

a Commander Jeep bearing No. TR-01-2777 from Brajapur with a

view to reach her residence at Jangalia. When the commander jeep

reached at Jangalia near Maa Kali Indane Agency on Agartala-

Bishalgarh Road at about 11.30/12.00 p.m., near a curb, suddenly

the Commander Jeep turned over on the road. As such, said

Mamata Chakraborty (Acharjee) sustained grievous multiple

injuries on various parts of her body. Immediately the injured was

taken to Bishalgarh Hospital for treatment from where, seeing her

serious condition, she was referred to Dr. BRAM Hospital, Hapania,

and from there she was shifted to GBP Hospital where she took

admission. She was treated there till 20.09.2016 when she died at

the said hospital at about 14.15 hours.

3. It was stated that the said accident occurred

due to high speed, rash, and negligent driving of the driver of the

offending Commander Jeep. It has been asserted that the

deceased Mamata Chakraborty (Acharjee) was only 25 years old

at the time of the accident/death and she was a Milk Seller by

profession and she used to rear 5 cows. The claimant appellants

are totally dependent upon the income of the deceased.

4. On 04.01.2018, the claimant-appellants filed a

claim petition under Section 144 of the Motor Vehicle Act, 1988

before the learned Motor Accident Claims Tribunal, West Tripura

Agartala claiming compensation of Rs.42,95,000/- along with 15%

interest from the date of the accident.

5. The learned Tribunal after hearing the parties

and perusing the evidence passed the Judgment and Award dated

06.04.2022 awarding Rs.17,04,000/- only in favour of the claimant

appellants along with 6% per annum from the date of presentation

of the claim petition and shifted the liability of the paying the said

compensation to the owner of the offending vehicle and directed

the owner to make payment of the said amount to the claimant

appellants within a period of 30 days from the date of filing the

claim petition till the date of actual payment.

6. Being aggrieved by and dissatisfied with the

impugned Judgment and Award dated 06.04.2022 passed by the

learned Motor Accident Claims Tribunal, Bishalgarh, Tripura, the

claimant-Appellants have preferred this appeal to set aside the

impugned Judgment and Award passed in case

No.T.S(MAC)06/2018 and enhance the quantum of compensation

awarded by the learned Tribunal below.

7. Heard Mr. P.S. Roy, learned counsel appearing

for the claimant-appellants as well as Mr. Biswanath Majumder,

learned counsel appearing for respondent No.2 i.e. the respondent-

Insurance Company and Mr. S. Bhattacharjee, learned counsel

appearing for respondent No.1 i.e., the owner-respondent.

8. Mr. P.S. Roy, learned counsel appearing for the

claimant-appellants submits that considering of Rs.8,000/- per

month as the monthly income of the deceased is on the lower side

and the same needs to be enhanced to Rs.10,000/- per month as

the deceased was doing milk business and earning about

Rs.10,000/- per month. Learned counsel appearing for the

appellants further contended that as the insurance policy of the

offending vehicle is valid, the liability of paying the compensation

is to be fastened on the respondent insurance company. The

interest of 6% given by the Tribunal below is on the lower side and

this ought to have been enhanced. Further, for personal expenses

of the deceased, the Tribunal below has deducted 2/3rd of the

monthly income but the learned Tribunal below ought to have

deducted 1/3rd as personal expenses. Stating thus, learned counsel

urged to allow this appeal by enhancing the compensation

accordingly by modifying the impugned Judgment.

9 On the other hand, Mr. Biswanath Majumder,

learned counsel appearing for the respondent-Insurance Company

submits that they have filed written statement and have not lead

evidence and the arguments were advanced before the learned

Tribunal below and the same proceeded ex-parte against the

Insurance Company. In this present appeal, they have not filed

any cross objection or any other pleadings.

He further submits that the case was originally filed

under Section 166 of the M.V. Act but later, it was converted under

Section 163A of the M.V. Act, and thereafter, the liability of paying

compensation has been fastened on the owner of the vehicle and

the amount has been fixed and in no way the respondent-

insurance company is liable to pay the compensation. He also

pointed out that the owner of the vehicle has produced the driving

license for marking it as an exhibit but the driver of the vehicle has

not produced the same. Further, he contended that the driver of

the offending vehicle was none other but the husband of the

deceased who was driving the vehicle and the deceased was

accompanying him in the said vehicle and prayed to dismiss the

appeal.

10. Mr. S. Bhattacharjee, learned counsel appearing

for the owner of the vehicle i.e. respondent No.1 submits that the

owner has not expressly given the said vehicle to the driver for

using the vehicle on the fateful day. He used the vehicle for his

personal purpose and deceased is the wife of the driver i.e., Sri

Madhu Acharjee. However, he claims that the accident has taken

place due to the rash and negligent driving of the driver of the

vehicle who is not party to the proceeding, and the liability of

paying the compensation should not be fastened on him and prays

to dismiss the appeal.

11. Heard both sides and perused the evidence on

record.

12. The learned counsel appearing for the appellants

pleads before this Court that the first appellant is the father of the

deceased and the 2nd appellant is the 6(six) years old minor son of

the deceased. Then on the strength of the evidence, it is submitted

that P.W.-1 is the claimant and P.W.-2 is the eye witness. Both of

them together has filed an identical examination-in-chief before

the Tribunal below indicating that the deceased had 5(five) cows

and used to earn Rs.10,000/- per month by way of milk vending.

On the point of deduction on personal expenses, learned counsel

appearing for the appellants submits that the Court below has

deducted 2/3rd instead of 1/3rd following the Judgment of the

Hon'ble Apex Court reported in (2009) 6 SCC 121 titled as Smt.

Sarla Verma & Ors vs Delhi Transport Corp.& Anr. He further

claimed that the liability fastened by the Tribunal below ought to

have been on the respondent-Insurance Company not on the

owner-respondent. Finally 6% interest awarded on the

compensation according to the claimant-appellants is on the lesser

side and it could be on the higher side.

13. On fair perusal of the Judgment of the Court

below, this Court feels that nowhere neither in the pleadings nor

in the evidence, the P.W.-1/appellant No.1 justified his claim that

he is dependent on his daughter i.e., the deceased herein and he

has no other means to survive. He has not stated in his pleadings

that since how long he is staying with his daughter and whether

he has any other family members to look after him and about his

source of income. He has not produced any evidence to prove

that he is entitled to claim the compensation. Further, appellant

No.1 has not placed any documentary evidence before the

Court(s) to say that he has filed the claim petition as he is legally

authorized to represent the minor child (claimant appellant No.2)

before the Court as natural guardian. It is settled law that either

the natural parents i.e., mother or father of the minor child would

represent the minor child or in the event, that the mother or

father of the minor child are not there, any competent person

contemplated under the Act or by virtue of order obtained from

the competent Court, a person would be authorized to represent

the minor child. The appellant-claimant No.1 has not placed any

such record before the Court.

In so far as parental consortium with regard to love

and affection is concerned, in terms of Hon'ble Apex Court

Judgment reported in (2018) 18 SCC 130 titled as Magma

General Insurance Company Ltd. Vs. Nanu Ram Alias

Chuhru Ram and ors, the father of the deceased is only entitled

to a sum of Rs.40,000/- only. In this matter, if the claim is to

decided in favour of claimant No.1, as he failed to establish the

dependency, he would be entitled to only Rs.40,000/-. It is to be

noted that the legal heir who is supposed to be the husband of

the deceased is expected to file the appeal seeking claim but for

the reasons best known the husband of the deceased has not

preferred any claim or appeal nor he is made a party to the claim

indicating that he was the driver. This Court draws an adverse

inference that in order to avoid the complication, the concerned

parties might have been advised not be bring him on record either

in the capacity of the appellant-claimant or in the capacity of the

respondent.

14. However, this Court finds that the Court below

has not gone into these issues and has straight away awarded the

compensation amount. Since this appeal is filed by the claimants

and no such appeal is preferred by the insurance company and

also the owner of the vehicle, this appeal could be dismissed

without going into the aspect of enhancement. But when it came to

the knowledge of this Court that the impugned Judgment and

Award passed by the learned Tribunal below is per incuriam, and

this Court is of the view that the same needs and requires re-

consideration.

15. Hence in view of the above and for the reasons

stated herein, this Court is inclined to take a decision that the

matter needs reconsideration before the learned Tribunal below.

16. Accordingly, the present appeal claiming

enhancement is dismissed, and also the impugned award dated

06.04.2022 passed by the learned Tribunal below in awarding

compensation is liable to be quashed and set aside and the matter

needs to be remanded back for reconsideration to the learned

Tribunal below in view of the rare circumstance as stated herein

above.

17. Further with regard to entitlement of their

respective claims and shares, if required, the learned Tribunal

below shall give an opportunity to both sides to adduce their

evidence and after hearing both sides shall pass an order afresh.

Claims under M.V. Act is a beneficial legislation but it cannot be a

bonanza and an unauthorized person cannot claim any

compensation and an authorized person cannot claim more than

what is settled by the Hon'ble Apex Court.

18. Accordingly, the impugned award dated

06.04.2022 passed by the Court below is set aside and the present

appeal is also dismissed and the matter is remanded back to the

Court below for fresh adjudication.

19. 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: 2023.09.27 SINGHA 14:46:56 +05'30'