Tripura High Court
Insurer vs Sri Tapan Debnath on 4 April, 2024
HIGH COURT OF TRIPURA
AGARTALA
MAC.APP.No.38 of 2023
The National Insurance Company Limited,
(to be represented by Divisional Manager),
Agartala, Divisional Office, 42, Akhaura Road,
P.O Agartala, District- West Tripura, Pin-799001
---- Insurer Appellant-petitioner(s)
Versus
1. Sri Tapan Debnath,
son of Late Radha Gobinda Debnath,
resident of East Howaibari, P.S. Teliamura,
District-Khowai
----Claimant-Respondent(s)
2. Sri Subal Debnath,
son of Matilal Debnath,
resident of Khejurbagan Abasan, near Ginger Hotel,
P.S. New Capital Complex, District-West Tripura,
(Owner of Tata Nano TR-01-AG-0660)
----Owner-Respondent(s)
For Appellant(s) : Mr. A.K. Deb, Adv.
For Respondent(s) : Mr. S.M. Chakraborty, Sr. Adv.
Mr. R.R. Datta, Adv.
Ms. A. Begam, Adv.
Date of Hearing : 14.03.2024
Date of Judgment
& Order : 04.04.2024
Whether fit for
reporting : YES
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
Heard Mr. A.K. Deb, Learned counsel appearing for the
Insurer-appellant as well as Mr. S.M. Chakraborty, Learned senior
counsel assisted by Mr. R.R. Datta, Learned counsel and Ms. A. Begam,
Learned counsel appearing for the claimant-respondent.
2. This is an appeal under Section 173 of the Motor Vehicles
Act is preferred challenging the award dated 30.01.2023 delivered by
Motor Accident Claims Tribunal, Court No.4, Agartala, West Tripura in
connection with Case No.T.S.(MAC)292 of 2015.
3. The subject matter of the dispute in short is that the
claimant-respondent (Tapan Debnath) filed one claim petition under
Section 166 of the M.V. Act claiming compensation of Rs.52,25,000/- for
sustaining injury by a road traffic accident on 04.05.2014. According to
the claimant, on the alleged day, the claimant-respondent was
proceeding towards Bishalgarh by riding the Motor Cycle bearing
registration No.TR-01-M-5870 along with his wife and minor son and
while they reached near Bangeswar Bridge on Khayerpur-Amtali By-pass
road then a TATA NANO vehicle bearing registration No.TR-01-AG-0660
came from the opposite direction with high speed rashly and negligently
dashed against the Motor Bike and as a result of which, the claimant-
respondent and his wife and minor son fell down on the road and
received multiple grievous injuries. Immediately, they were taken to Dr.
BRAM Hospital, Hapania where the victim Tapan Debnath was admitted
from 04.05.2014 to 21.05.2014. As the victim was not fully cured, so,
the victim had to undergo chambers of several private Doctors for better
treatment. According to the claimant-respondent, even after filing the
claim petition the victim got treatment in GBP Hospital on 19.03.2018,
21.03.2018 and 26.03.2018 and he was referred to Chennai for better
treatment. Further, according to the claimant-respondent on the issue of
accident a police case was registered vide Amtali P.S. Case No.97 of
2014 under Section 279/338 of IPC and according to him, his monthly
income was Rs.15,000/- from the business of garments. The claimant-
respondent further took the plea that due to accident, he became
disabled and was suffering from severe mental agony and pain with
sufferings. Hence, he filed the claim-petition.
4. The OP owner i.e. the respondent No.2 herein of the
offending vehicle TATA NANO bearing registration No.TR-01-AG-0660 by
filing written statement denied the facts of accident and submitted that
his vehicle was not involved in the accident and he has been falsely
implicated and further submitted that on the alleged day his vehicle was
insured with the National Insurance Company Limited i.e. the appellant
herein covering the period of alleged accident with all valid documents.
The appellant as OP No.2 also contested the case by filing written
statement denying the relevant paragraphs of the claim petition and also
took the plea that the age of the victim and monthly income of the victim
as alleged was not genuine and also took the plea that the claim petition
was subjected to strict proof.
5. On the pleadings of the parties, Learned tribunal below
framed the following issues :
"(1) Whether the claimant Sri Tapan Debnath sustained
bodily injury in a vehicular accident which alleged to have
been occurred on 04.05.2014 on Khayerpur-Amtali Road near
Bangeswar bridge, due to rash and negligent driving of
vehicle bearing registration No.TR-01-AG-0660 (TATA NANO)
by its driver.
(2) Whether the claimant is entitled to compensation as
prayed for. If so, up to what extent and who will be held
liable to pay the same."
6. To substantiate the claim petition, the claimant-petitioner
adduced both oral and documentary evidence on record.
"Name of the witnesses of the claimant-petitioner:
PW-1- Tapan Debnath
PW-2- Sri Ratan Debnath
PW-3- Dr. Anupam Debnath
PW-4- Dr. Dipti Bikash Roy (Locomotor Specialist)
Exhibits of the claimant-petitioner :
1. Certified copy of FIR and ejahar-Ext.1 series;
2. Certified copy of charge sheet-Ext.2 series;
3. Discharge certificate of TMC Hospital-Ext.3;
4. Discharge summary of Apollo Hospital, Chennai-Ext.4
series;
5. Certified copy of injury report-Ext.5;
6. Original referral certificate-Ext.6 series;
7. Original medical reports-Ext.7 series;
8. Original prescriptions-Ext.8 series;
9. Original cash memos and paid bills-Ext.9 series;
10. Original air tickets and boards cards-Ext.10 series;
11. Original family income certificate-Ext.11;
12. Disablement certificate-Ext.12;
13. Registration certificate of shop of Tapan Debnath-Ext.13;
14. B.Sc. mark sheet of Tapan Debnath-Ext.14;
15. Admit Card of Tapan Debnath-Ext.15;"
Inspite of allowing opportunities, the OP did not adduce any
evidence both oral/documentary.
7. Finally, on conclusion of the enquiry, the Learned tribunal
below passed the award/judgment on 30.01.2023. The operative portion
of the said judgment runs as follows :
"In the result, the application under Section 166 of the M.V.
Act, 1988 filed by the claimant, Sri Tapan Debnath is allowed
on contest.
The claimant is entitled to a sum of Rs.30,33,941/-
(Rupees thirty lakhs thirty three thousand nine hundred and
forty one) only as compensation in this case.
O.P. No.2, the National Insurance Co. Ltd. being
insurer of the offending vehicle bearing No.TR-01-AG-0660
shall pay the said amount of compensation to the claimant
within a period of 30(thirty) days from the date of award in
terms of Section 168(3) of the Act.
The amount of compensation shall carry interest @
9% per annum from the date of presentation of the claim
petition before the Tribunal on 22.12.2015 till realization.
The O.P. insurance company shall give notice of the deposit
of the compensation amount to the claimant and shall also
file a compliance report with this Tribunal within 15 days of
the deposit.
Out of the total amount of compensation, 30% be invested
by purchasing Fixed Deposit certificate from any Nationalized
Bank at least for the next 5 years with a liberty to the
claimant petitioner to withdraw the monthly interest from his
own account and no loan or advance or pre-mature
withdrawal shall be allowed without prior sanction of this
Tribunal."
8. At the time of hearing, Mr. A.K. Deb, Learned counsel
appearing for the Insurer-appellant first of all submitted that the award
awarded by the tribunal was excessive and the Learned tribunal below
did not appreciate the evidence on record properly, nor appreciated the
principles of citations referred by the Hon'ble Supreme Court and
awarded excessive amount. He further referred para-10.7 of the award
and submitted that the Learned tribunal below without any basis
determined the loss of income per month @ Rs.12,000/- in absence of
any cogent documentary evidence on record. Further, he submitted that
in view of the judgment of Hon'ble Supreme Court there was no scope to
award 25% of monthly income as future prospects. Thus, came to an
erroneous finding.
9. Learned counsel for the Insurer-appellant further submitted
that in para-10.8 of the award Learned tribunal awarded Rs.50,000/-
towards future medical expenses without any basis. He has also
submitted that the rate of interest as awarded by the Learned tribunal
below @ 9% p.a. was beyond the principles of natural justice as because
considering the present market rate of interest as per the RBI Guidelines
the said percentage of interest as imposed by the Learned tribunal was
too high and urged for reconsideration of the rate of interest. Further, he
has submitted that the prayer submitted by the claimant-petitioner under
Order 41 Rule 27 cannot be accepted at this stage because the claimant-
petitioner in the case at hand could not adduce any cogent evidence that
he became permanently disabled and prayed for dismissal of the petition
filed by the claimant-petitioner.
10. Per contra, Mr. S.M. Chakraborty, Learned senior counsel
appearing for the claimant-respondent submitted that after considering
both oral/documentary evidence on record Learned tribunal below rightly
awarded the compensation in favour of the claimant-petitioner for which
there is no scope to interfere with the award passed by the tribunal
below. Learned senior counsel further submitted that all though, the
claimant-petitioner initially submitted a certificate issued by the District
Disability Board showing 60% disablement which was for a period of five
years with Locomotor Disability but on 12.09.2023 another certificate
has been issued wherein the rate of disability has been shown as 70%.
11. Learned senior counsel further submitted that although for a
certain period, the claimant-petitioner was admitted in Dr. BRAM
Hospital, Hapania but after discharging from the hospital, he had to
attend the chamber of different private Doctors and not only that, he
went to Chennai for further better treatment. As the claimant-petitioner
became permanently disabled due to Trochentric fracture of RT side,
femur, Intra Capsular (fracture) neck of femur (garden v), pelvis and Hip
joint by the said RTA, which amounts to destruction or permanent
impairing of the power of any member or joints, within the definition of
permanent disablement as provided in Section 142(b) of the MV Act. So,
Learned senior counsel urged for dismissal of the appeal by allowing the
prayer for adducing additional evidence under Order 41 Rule 27 which
the claimant-petitioner earlier could not submit.
12. Admittedly, in this case, there is no dispute on record in
respect of sustaining injury by the petitioner on 04.05.2014 by the
offending TATA NANO vehicle of the owner bearing registration No.TR-
01-AG-0660. The appellant-Insurance Company and also the OP owner
by the trend of cross-examination could not discard the evidence of the
claimant-petitioner that no such accident took place on the alleged day.
Now, here in this appeal, the claimant-petitioner did not submit any
cross-objection nor file any cross-appeal for enhancement of the award
of tribunal dated 30.01.2023.
13. Learned counsel for the appellant at the time of hearing also
did not dispute that fact of accident. He only confined his arguments to
the quantum of award awarded by the tribunal by referring the relevant
paras of the award. In support of his contention, Learned counsel for the
claimant relied upon one judgment of Hon'ble Supreme Court in Raj
Kumar versus Ajay Kumar and Another reported in (2011) 1 SCC
343. In that judgment, the Hon'ble Supreme Court has discussed about
the procedure as to how the tribunal should consider the case of
permanent disablement. For better reference, the said judgment is
extracted hereunder :
"9. The percentage of permanent disability is expressed by
the Doctors with reference to the whole body, or more often
than not, with reference to a particular limb. When a
disability certificate states that the injured has suffered
permanent disability to an extent of 45% of the left lower
limb, it is not the same as 45% permanent disability with
reference to the whole body. The extent of disability of a
limb (or part of the body) expressed in terms of a percentage
of the total functions of that limb, obviously cannot be
assumed to be the extent of disability of the whole body. If
there is 60% permanent disability of the right hand and 80%
permanent disability of left leg, it does not mean that the
extent of permanent disability with reference to the whole
body is 140% (that is 80% plus 60%). If different parts of
the body have suffered different percentages of disabilities,
the sum total thereof expressed in terms of the permanent
disability with reference to the whole body, cannot obviously
exceed 100%.
10. Where the claimant suffers a permanent disability as a
result of injuries, the assessment of compensation under the
head of loss of future earnings, would depend upon the
effect and impact of such permanent disability on his earning
capacity. The Tribunal should not mechanically apply the
percentage of permanent disability as the percentage of
economic loss or loss of earning capacity. In most of the
cases, the percentage of economic loss, that is, percentage of
loss of earning capacity, arising from a permanent disability
will be different from the percentage of permanent disability.
Some Tribunals wrongly assume that in all cases, a particular
extent (percentage) of permanent disability would result in a
corresponding loss of earning capacity, and consequently, if
the evidence produced show 45% as the permanent
disability, will hold that there is 45% loss of future earning
capacity. In most of the cases, equating the extent
(percentage) of loss of earning capacity to the extent
(percentage) of permanent disability will result in award of
either too low or too high a compensation.
11. What requires to be assessed by the Tribunal is the effect
of the permanently disability on the earning capacity of the
injured; and after assessing the loss of earning capacity in
terms of a percentage of the income, it has to be quantified
in terns of money, to arrive at the future loss of earnings (by
applying the standard multiplier method used to determine
loss of dependency). We may however note that in some
cases, on appreciation of evidence and assessment, the
Tribunal may find that percentage of loss of earning capacity
as a result of the permanent disability, is approximately the
same as the percentage of permanent disability in which
case, of course, the Tribunal will adopt the said percentage
for determination of compensation (see for example, the
decisions of this court in Arvind Kumar Mishra v. New India
Assurance Co. Ltd. : (2010) 10 SCC 254 and Yadava Kumar v.
National Insurance Co. Ltd. : (2010) 10 SCC 341
12. Therefore, the Tribunal has to first decide whether there
is any permanent disability and if so the extent of such
permanent disability. This means that the tribunal should
consider and decide with reference to the evidence:
(i) whether the disablement is permanent or
temporary;
(ii) if the disablement is permanent, whether it is
permanent total disablement or permanent partial
disablement,
(iii) if the disablement percentage is expressed
with reference to any specific limb, then the effect
of such disablement of the limb on the functioning
of the entire body, that is the permanent disability
suffered by the person.
If the Tribunal concludes that there is no permanent
disability then there is no question of proceeding further and
determining the loss of future earning capacity. But if the
Tribunal concludes that there is permanent disability then it
will proceed to ascertain its extent. After the Tribunal
ascertains the actual extent of permanent disability of the
claimant based on the medical evidence, it has to determine
whether such permanent disability has affected or will affect
his earning capacity."
14. In addition to that, he also relied upon another citation of
the Hon'ble Supreme Court of India in Bajaj Allianz General
Insurance Company Private Ltd. versus Union of India in Writ
Petition(s) (Civil) No.534 of 2020 wherein in para-(iv) the Hon'ble
apex Court has observed as under :
"(iv) As far as the aspect of the issuance of certificate on
disability of victims is concerned, it is reiterated that the
guidelines laid down by this Court in Raj Kumar v. Ajay
Kumar and Anr. : (2011) 1 SCC 343 mandatorily must be
followed by the MACTs, in respect of loss of income due to
injury/disablement. The District Medical Board is also
directed to follow the guidelines issued by the Ministry of
Social Justice and Empowerment, Government of India vide
Gazette Notification S. No.61, dated 05.01.2018, for issuance
of disability Certificate in order to bring Pan India uniformity.
The consequence is that the MACT would ascertain that
permanent disability certificate issued by the District Medical
Board or body authorized by it is in accordance with the
Gazette Notification alone. Once the certificate is issued in
this manner, the same can be marked for purposes of being
taken into consideration as evidence without the necessity of
summoning the concerned witness to give formal proof of
the documents unless there is some reason for suspicion on
the document."
Relying upon the same, Learned counsel submitted that the
learned tribunal did not follow the proper procedure and guidelines of the
Hon'ble Supreme Court of India in determining the amount of
compensation.
15. From the award, it appears that the Learned tribunal below
in determining the monthly income of the claimant-petitioner came to an
observation that the monthly income of the claimant-petitioner as the
owner of the garment shop would not be less than Rs.12,000/- per
month i.e. the Learned tribunal below determined the monthly income @
Rs.400/- per day for 30 days which in my considered view Learned
tribunal below determined the same without application of proper mind.
Even if it is assumed that he was a garment shop owner but in this
regard, the petitioner could not adduce any valid documentary evidence
on record. Learned tribunal below determined his daily income as
Rs.400/- per day and if it is so, the Learned tribunal below also taken
into consideration the holidays in determining the monthly income. Thus,
Learned tribunal below committed error in calculating the monthly
income of the claimant-petitioner which in my considered view would be
appropriate if it is taken into consideration @ Rs.10,000/- per month i.e.
Rs.400 x 25 days per month, excluding the holidays.
16. In respect of determination, 25% as future prospects as
submitted by the Learned counsel for the appellant the Hon'ble Supreme
Court of India in Sidram versus Divisional Manager, United India
Insurance Company Limited and Another reported in (2023) 3 SCC
439 in para-31 observed as under :
"31. It is now a well settled position of law that even in
cases of permanent disablement incurred as a result of a
motor-accident, the claimant can seek, apart from
compensation for future loss of income, amounts for future
prospects as well. We have come across many orders of
different tribunals and unfortunately affirmed by different
High Courts, taking the view that the claimant is not entitled
to compensation for future prospects in accident cases
involving serious injuries resulting in permanent
disablement. That is not a correct position of law. There is no
justification to exclude the possibility of compensation for
future prospects in accident cases involving serious injuries
resulting in permanent disablement. Such a narrow reading
is illogical because it denies altogether the possibility of the
living victim progressing further in life in accident cases -
and admits such possibility of future prospects, in case of the
victim's death."
Relying upon the principle of Hon'ble Supreme Court as
mentioned above in my considered view Learned tribunal below rightly
awarded 25% of the monthly income as future prospects. So, the
submission of Learned counsel for the appellant cannot be accepted to
this point.
17. In para-66 of the aforesaid judgment (supra) the Hon'ble
apex Court further observed as under :
"66. In view of the aforesaid, we grant compensation of
Rs1,55,000/- towards medical expenses.
(4) Future medical expenses
67. At the outset, we may state that the "Future Medical
Expenses" and "Attendent Charges" would fall within the
ambit of pecuniary expenses. In Abhimanyu Partap Singh v.
Namita Sekhon : (2022) 8 SCC 489, this Court held :
"19. In view of the said legal position, the
compensation can be assessed in pecuniary heads
i.e., the loss of future earning, medical expenses
including future medical expenses, attendant
charges and also in the head of transportation
including future transportation. In the non-
pecuniary heads, the compensation can be
computed for the mental and physical pain and
sufferings in the present and in future, loss of
amenities of life including loss of marital bliss, loss
of expectancy in life, inconvenience, hardship,
discomfort, disappointment, frustration, mental
agony in life, etc."
Relying upon the aforesaid principle as laid down by the
Hon'ble apex Court, it further appears that the Learned tribunal also
rightly and reasonably awarded future medical expenses to the tune of
Rs.50,000/-. So, there is no scope to interfere with the said amount of
award as awarded by the Learned tribunal.
18. Regarding rate of interest in the aforesaid judgment in para-
34 Sub-para-15 the Hon'ble apex Court determined the rate of interest
as 9% which reads as under :
"34. *** *** *** ***
15. The Tribunal has noted that the appellant is
unable to even eat or to attend to a visit to the
toilet without the assistance of an attendant. In
this background, it would be a denial of justice to
compute the disability at 90%. The disability is
indeed total.
Having regard to the age of the appellant, the
Tribunal applied a multiplier of 18. In the
circumstances, the compensation payable to the
appellant on account of the loss of income,
including future prospects, would be Rs 18,14,400.
In addition to this amount, the appellant should be
granted an amount of Rs 2 lakhs on account of
pain, suffering and loss of amenities. The amount
awarded by the Tribunal towards medical expenses
(Rs 98,908); for extra nourishment (Rs 25,000)
and for attendant's expenses (Rs 1 lakh) is
maintained. The Tribunal has declined to award
any amount towards future treatment. The
appellant should be allowed an amount of Rs 3
lakhs towards future medical expenses. The
appellant is thus awarded a total sum of Rs
25,38,308 by way of compensation. The appellant
would be entitled to interest at the rate of 9% p.a.
on the compensation from the date of the filing of
the claim petition. The liability to pay
compensation has been fastened by the Tribunal
and by the High Court on the insurer, owner and
driver jointly and severally which is affirmed. The
amount shall be deposited before the Tribunal
within a period of 6 weeks from today and shall be
paid over to the appellant upon proper
identification."
So, here in the given case, in my considered view also,
Learned Tribunal below rightly awarded 9% p.a. as interest on the claim
petition.
19. Regarding permanent disablement certificate Learned
tribunal below basing upon the certificate issued by the District Disability
Board in para-10.7 clearly mentioned that as per observation of the
Medical Board on that relevant point of time he was suffering 60%
physical disability all though, later on, the same was enhanced up to
70%. Admittedly, the same could not be proved and produced earlier by
the claimant-petitioner. The appellant also in course of hearing could not
satisfy the Court to disbelieve the relevant para-10.7. So, in my
considered view the Learned tribunal below rightly determined the status
of the claimant-petitioner as the person suffering from personnel
disability.
20. In course of hearing, Learned senior counsel for the
claimant-petitioner could not highlight anything regarding the fixation of
monthly income determined by the tribunal and as already stated there
is also no any cross appeal to enhance the amount of compensation from
the side of the claimant-respondent.
21. Thus, after hearing both the sides, the total compensation
awarded be calculated as under :
"Compensation under the head pecuniary
damages:
(i) Expenses relating to treatment, hospitalization, medicines,
transportation, nourishing food and miscellaneous expenditure :
i) on vouchers tribunal awarded Rs.7,00,000/-
ii) on flight fare tribunal awarded Rs.89,941/-
iii) for purpose of local transportation inside and outside
the State of Tripura Rs.30,000/-
iv) from the vouchers exhibited as Exbt.9 series for
purpose of cost of attendance for treatment
Rs.1,50,000/-
iv) for guess work for nourishment and miscellaneous
expenses tribunal awarded Rs.50,000/-
So, the tribunal awarded total compensation under this head is
Rs.10,19,941/-.
(I) Loss of income per month = Rs.10,000 x 70% =
Rs.7,000/-
(II) 25% of above to be added as future prospect as self
employed in view of Pranay Shethi Case :- Rs.1,750/-
only
(III) Total of SL. Nos. I and II above comes to
Rs.7,000/- + Rs.1,750/- = Rs.8,750/- only.
(IV) Compensation after applying multiplier of 14:-
Rs.8,750/- x 12 x 14 = Rs.14,70,000/- only.
So, the total compensation comes to Rs14,70,000/-.
Future medical expenses awarded by tribunal - Rs.50,000/-
Compensation under Non-pecuniary damages -
Rs.2,00,000/-
Therefore, the total compensation would comes to Rs.2,50,000/-.
So, in total compensation comes to Rs.10,19,941 +
14,70,000 + 50,000 + 2,00,000 = Rs.27,39,941/-.
22. Thus, the appeal filed by the appellant is partly allowed. The
claimant is entitled to get a sum of Rs. 27,39,941/-. The appellant
petitioner i.e. the National Insurance Company Limited the OP No.2 being
the insurer of the offending vehicle bearing No. TR-01-AG-0660 shall pay
the said amount of compensation to the claimant within a period 60 days
from the date of passing of this judgment. This amount shall carry
interest @ 9% p.a. from the date of presentation of the claim-petition
i.e. w.e.f.22.12.2015 to till realization. The appellant-Insurance Company
shall give notice to the claimant within 15 days from the date of deposit
of the compensation. As observed by the tribunal by order dated
30.01.2023 30% of the compensation be invested by purchasing fixed
deposit certificate from any Nationalized Bank for next 5 years with
liberty to the claimant-petitioner to draw the monthly interest from his
own account and no loan or advance or pre-mature withdrawal shall be
allowed without prior sanction of the tribunal.
Since, the tribunal at the time of delivery of
award/judgment came to the finding that the claimant-petitioner was
suffering from permanent disability, so, this Court also after hearing both
the sides also arrived to the said finding. So, the petition filed by the
claimant-petitioner for adducing additional evidence under Order 41 Rule
27 appears to be redundant.
With this observation, the case is finally disposed of.
A copy of this judgment be supplied free of cost to the
Learned counsel for the appellant-Insurance Company and the claimant-
petitioner.
Send down the LCRs along with a copy of the judgment.
JUDGE
Date: 2024.04.06 17:04:38 +05'30'
Sabyasachi B
