Tripura High Court
Divisional Manager vs Smt. Anjali Shib on 16 August, 2024
HIGH COURT OF TRIPURA
AGARTALA
MAC APP No.39 of 2024
Divisional Manager,
Shriram General Insurance Company Limited,
E-8, EPIP, Sitapura Industrial Area,
Jaipur, Rajasthan, PIN: 302022,
(Insurer of the vehicle bearing Registration
Number TR- 01S-1822, Bolero Truck)
----Appellant (s)
Versus
1. Smt. Anjali Shib,
Wife of Late Samarendra Shib
2. Sri Sajal Shib,
Son of Late Samarendra Shib
3. Sri Pinku Shib,
Son of Late Samarendra Shib
4. Sri Mitan Shib,
Son of Late Samarendra Shib
-All are residents of village: Jangalia,
P.O. & P.S. Bishalgarh, PIN:799 102,
District: Sepahijala , Tripura
5. Smt. Rupali Shib,
Wife of Sri Sanjit Debnath,
Daughter of Late Samarendra Shib,
Resident of village:Konaban,
P.S. Bishalgarh, PIN 799102,
District: Sepajijala, Tripura
---- Claimant-Respondents (s)
6. Sri Tahed Miah,
Son of Late Mati Miah,
Resident of village: Routhkhola,
P.S. Bishalgarh, PIN 799102,
District: Sepajijala, Tripura,
(Owner of the vehicle bearing
Registration No.TR-01S-1822 Bolero Truck)
---- Owner-Respondents (s)
For Appellant(s) : Mr. K. De, Adv.
For Respondent(s) : Mr. D. Deb, Adv.
Mr. S. Sarkar, Adv.
Date of Hearing : 09.08.2024
Date of delivery of
Judgment and Order : 16.08.2024
Whether fit for
Reporting : YES/NO
HON‟BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
This appeal is preferred challenging the judgment and
award dated 19.09.2023 delivered by Learned Motor
Accident Claims Tribunal No.2, West Tripura, Agartala in
connection with Case No.TS(MAC) 86 of 2014.
02. Heard Learned counsel Mr. K. De appearing for
the appellant and Learned counsel Mr. D. Deb and Learned
counsel Mr. S. Sarkar appearing for the claimant-
respondents. None appeared on behalf of the owner-
respondent.
03. In course of hearing of argument Learned
counsel appearing for the appellant submitted that the
claimant-respondents initially filed one claim petition before
the Learned Motor Accident Claims Tribunal which was
numbered as TS(MAC) 86 of 2014 and after conclusion of
proceeding by judgment and award dated 31.01.2018
allowed the claim petition of the claimant-petitioner but
Learned Tribunal fastened the liability of payment of
compensation upon the owner of the vehicle. Challenging
that judgment the owner respondents preferred an appeal
before the High court and this High Court by judgment
dated 26.03.2019 in MAC APP No.68 of 2018 along with
CO(FA) No.5 of 2018 disposed of the appeal with certain
observations in para No.10 of the said judgment remanded
back the matter and thereafter the matter was taken before
the Learned MAC Tribunal No.2. Learned MAC Tribunal after
hearing both the parties and taking evidence on record
allowed the petition but enhanced the amount of award and
fastened the liability of payment of compensation to the
present appellant i.e. insurance company and challenging
that judgment/award this present appeal is preferred by the
appellant. It was further submitted that the accident
occurred on 11.10.2013 and accordingly the victim
petitioner Samarendra Shib filed the claim petition on the
ground of sustaining injury which was allowed by the then
Tribunal but during pendency of the case the original
petitioner expired and his legal heirs were joined as
substituted claimant-petitioners before the Tribunal. But the
Learned Tribunal below without treating the claim petition
as a case of injury determined the amount of compensation
as a death case due to road traffic accident but his death
was not related to said accident because the accident took
place in the year 2013 but he expired during the year 2020
after elapsing of a long period for which the judgment and
award of the Learned Tribunal below suffers from infirmities
and prayed for setting aside the judgment of the Learned
Tribunal below. Learned counsel further submitted that in
determining the amount of compensation Learned Tribunal
below applied multiplier in pursuance of the judgment of the
Hon'ble Supreme Court in Sarla Verma and Others vs.
Delhi Transport Corporation and Another reported in
(2009) 6 SCC 121 and also relied upon another citation in
National Insurance Company Limited vs. Pranay Sethi
and Others reported in (2017) 16 SCC 680. Referring
both the cases Learned counsel for the appellant submitted
that in both the cases multiplier and future prospects were
taken into consideration considering the death of the
deceased. But here in the case at hand the victim sustained
injury for which he became permanently disabled, but
ignoring the principles of law laid down by the Hon'ble Apex
Court in the aforesaid cases Learned Tribunal below
determined the amount of compensation for death which
was not tenable in the eye of law and referring another
citation of the Hon'ble Supreme Court of India in United
India Insurance Company Limited vs. Satinder Kaur
alias Satwinder Kaur reported in (2021) 11 SCC 780
Learned counsel for the appellant further submitted that
loss of estate would be determined in pursuance of the
judgment of the Hon'ble Apex Court. But the Learned
Tribunal below also did not consider the same principle and
passed the award for which the interference of the court is
required and urged for allowing this appeal by setting aside
the judgment and award of the Learned Tribunal below.
04. On the other hand, Learned counsel for the
respondent-claimants fairly submitted that it is the admitted
position that the accident occurred in the year 2013 and due
to accident the victim became permanently disabled but
later on in connection with the injury during the year 2020
the victim succumbed to his injury for which the Learned
Tribunal below rightly decided the issues and allowed the
claim petition and reasonably determined the amount of
compensation for which there is no scope at this stage to
interfere with the award of the Learned Tribunal below and
Learned counsel for the respondents in support of his
contention also relied upon one judgment of this High Court
in Hari Mohan Das and Ors. vs. Panchadeep Travels
and Ors. reported in (2016) 1 TLR 818 and submitted
that in view of the principle of the aforesaid judgment the
claimants are entitled to get compensation treating the case
as death due to road traffic accident. So there was no
infirmity or perversity in the judgment of the Learned
Tribunal below and in addition to that Learned counsel for
the respondents also referred two other citations of the
Hon'ble Apex Court in United India Insurance Co. Ltd.
vs. Syed Mahaboob (D) by LRs. reported in AIR 2006
(NOC) 545(KANT) and North West Karnataka Road
Transport Corporation vs. Dundappa Ramappa Rakshit
& Ors. reported in AIR 2006 (NOC) 759 (UTR.) and
finally submitted that since there was no perversity in the
judgment of the Learned Tribunal below, so there is no
scope to interfere with the award of the Learned Tribunal.
So Learned counsel urged for dismissal of this appeal.
05. Now before coming to the conclusion let us
discuss about the subject matter of the claim petition. The
original claim petition was submitted by the victim
Samarendra Shib, himself with the allegation that on
11.10.2013 at about 900 hours when the claimant was
going to Bishalgarh market from his home at Jangalia and
reached nearby a grocery shop of Nakul Saha that time a
motor vehicle bearing No.TR-01S-1822 (Bolero Truck) came
from the side of Agartala towards Sonamura with high
speed being driven in a rash and negligent manner and
dashed against the original claimant who was walking to the
left side of the road and as a result the claimant fell down
on the road and sustained fracture injuries on his right leg
and other injuries on various parts of the body and became
senseless and thereafter he was taken to Bishalgarh
Hospital and wherefrom he was referred to GBP Hospital
and thereafter he was referred to SSKM Hospital, Kolkata on
15.10.2013 and the claimant went therein being escorted by
his son and other relatives on 17.10.2013 but as the bed
was not available in SSKM Hospital so he was admitted in
Bhattacharjee Orthopedics and Related Research Centre
Pvt. Ltd., Narayanpur, Kolkata and there he was treated for
more than a month but he could not recover fully and on
return he availed treatment at GBP Hospital and thus he
permanently disabled for the injuries sustained and the
Medical Board after considering his injury certified his
disability to the extent of 80%. It was also submitted by
him that due to his disability he was unable to move
properly and could not utilize the leg for operating weaving
machine and as such the claimant became income less for
the maintenance of his family members including his wife,
sons and daughter and claimed Rs.35,00,000/- as
compensation. In the said claim petition OP owner appeared
and submitted that the vehicle was duly insured with
Shriram General Insurance Co. Ltd. and the vehicle was
driven by the driver Litan Das who had valid driving license
on the date of the accident and the OP insurance company
by filing written statement submitted that the claim petition
was subjected to strict proof. Finally on conclusion of the
proceeding the First Tribunal determined the amount of
compensation to the tune of Rs.3,77,553.00/- for the
injuries sustained by the victim in vehicular accident and
fastened the liability to the owner of the vehicle bearing
No.TR-01S-1822 vide judgment and award dated
31.01.2018 as the OP owner failed to produce the relevant
documents to substantiate his defence. For the sake of
convenience, the operative portion of the judgment and
award dated 31.01.2018 in TS(MAC)86 of 2014 runs as
follows:
"10. In the result, the petition under Section 166 of the
Motor Vehicles Act is hereby allowed on contest. The
claimant is awarded a sum of Rs.3,77,553/- (Rupees
three lakh seventy seven thousand five hundred fifty
three) only as compensation for the injuries sustained by
him in a vehicular accident. Shri Tahed Miah being the
owner of the offending vehicle bearing No.TR-01-S-1822
is hereby directed to pay the said amount of
compensation to the claimant within a period of
30(thirty) days from the date of judgment. This amount
shall carry interest @ 6% (six per cent) per annum from
the date of presentation of the petition before the
Tribunal on 04.03.2014 till the payment is made."
06. The claimant himself preferred appeal before this
High court which was numbered as MAC APP 68 of 2018 and
in the said appeal cross objection was filed by the OP owner
which was numbered as CO(FA) No.5 of 2018. This High
Court by judgment dated 26.03.2019 disposed of both the
appeals with the following observation in para-10 of the said
judgment/award. For the sake of convenience I would like
to refer herein below the operative portion of the order
which runs as follows:
"10. As such, as prayed for, present appeal is disposed of
on the following mutually agreed terms:
(a) Impugned award dated 31st January, 2018
passed by learned Member, Motor Accident Claims
Tribunal No.1, West Tripura, Agartala in Case No.
Title Suit(M.A.C) 86 of 2014 titled as Sri
Samarendra Shib vs. Tahed Miah & Anr. on a
limited point is remanded back to the Tribunal for
consideration afresh;
(b) The owner shall positively pay the amount in
terms of the impugned award dated 31st January,
2018 within a period of 4(four) weeks from 1st
April, 2019. Needless to add, if ultimately the
liability is held to be that of the insurer, the
amount already paid by the owner shall be
reimbursed.
(c) Parties undertake to appear before the Tribunal
on 30th April, 2019, on which date, a date shall be
fixed by the Tribunal, enabling the owner to lead
evidence in support of his claim, if so required and
desired;
(d) Not more than two opportunities shall be
afforded to each one of the parties for such
purpose;
(e) Parties undertake to fully cooperate and not
take any unnecessary adjournments;
(f) Save and except, for official witnesses, at their
own cost and responsibility, parties shall produce
their entire evidence on such date as may be fixed
by the Tribunal;
(g) Hearing is expedited and it is expected of the
Tribunal to decide the matter within a period of six
months from the date of receipt of the order;
(h) Liberty is reserved to the parties to place on
record original documents before the Tribunal;
(i) Original documents, if any, filed here be
returned to the parties;
(j) The Registry is directed to „forthwith‟ remit the
records to the Tribunal. Also send a copy of the
order to the Tribunal.
(k) This Court has not expressed any opinion on
merits of the case;
(l) All issues are left open."
07. After that the Learned Tribunal below in
pursuance of the direction of the High Court heard both the
sides and decided the case on following two points:(i) On
the point of enhancement of compensation and (ii) point of
liability. Finally the second Tribunal as per direction of the
High Court proceeded to complete the proceeding and by
judgment and award dated 19.09.2023 again allowed the
claim petition of the claimant-petitioners who were
substituted in the place of original claimant as his legal
heirs. The operative portion of the judgment/award runs as
follows:
"31. The instant application under Section-166 of the
Motor Vehicles Act, 1988 filed by the claimant-petitioners
is hereby partly allowed and a sum of Rs.13,08,098.00
(Rupees Thirteen Lakh Eight Thousand Ninety Eight) only
is awarded in favour of claimant-petitioners as
compensation for the death of late Samarendra Shib, in a
Road Traffic Accident, as aforesaid, and thus whole
amount of compensation shall be paid by OP No.2, the
Sriram General Insurance Co. Ltd., within a period of one
month. The aforesaid amount shall carry interest @ 7.5%
per annum to be paid from the date of death of deceased
claimant, i.e., from 04.02.2020 till the date of payment,
as awarded by the Hon‟ble High Court of Tripura in "Hari
Mohan Das"(supra).
32. The claimant petitioners shall be equally entitled to
the awarded amount i.e., Rs.13,08,098.00 and in the
event of deposit of the awarded amount with interest,
Rs.1,00,000.00 each shall be released in favour of each of
the claimant-petitioners out of their respective shares, in
their respective bank accounts and the rest amount shall
be kept in fixed deposit schemes in any Nationalized Bank
for five years in their name separately as per their
share."
Challenging this judgment the insurance
company has preferred this appeal.
08. I have heard both the sides at length and also
gone through the judgment of the Learned Tribunal below
very carefully and also perused the citation referred by the
parties for determining the matters in controversy, now let
us refer the judgment of this High Court in Hari Mohan
Das and Ors. vs. Panchadeep Travels and Ors. reported
in (2016) 1 TLR 818. In para numbers 7, 8, 9, 10, 11 and
12, this High Court observed as under:
"7.The principle of actio personalis moritur cum persona is
a principle applicable to personal injury cases. The literal
meaning of this Latin phrase is that an action for personal
injuries dies with the person injured. It is contended on
behalf of the respondents that the legal representatives
cannot be permitted to continue this action on behalf of the
deceased and are not entitled to any compensation. On the
other hand, on behalf of the legal representatives it is
contended that they are entitled to claim the full
compensation payable to the injured who is now dead. No
doubt, as per this principle, an action for injuries whether
physical or otherwise does not survive if the person injured
dies. However, Section 306 of the Indian Succession Act
saves the right even in such cases to a limited extent.
Section 306 of the said Act reads as follows:
306. Demands and rights of action of, or against
decease survive to and against executor or
administrator. - All demands whatsoever and all rights
to prosecute or defend any action or special
proceedings existing in favour of or against a person at
the time of his decease, survive to and against his
executors or administrators; except causes of action
for defamation, assault, as defined in the Indian Penal
Code, or other personal injuries not causing the death
of the party; and except also cases where, after the
death of the party, the relief sought could not be
enjoyed or granting it would be nugatory.
8. A bare perusal of the aforesaid provision shows that all
demands and rights whatsoever existing in favour or
against a person at the time of his death survive to his
executors, administrators and heirs. However, an
exception has been carved out, that actions for
defamation, assault as defined in I.P.C. or other personal
injuries not causing death of a party do not survive. Loss
to the estate suffered by his legal heirs is not covered
under the exception to this action and therefore any loss
to the estate can be recovered by the legal heirs. Section
306 has modified the principle of "actio personalis
moritur cum persona" to this limited extent and the legal
heirs/representatives of injured can continue an action
initiated by an injured person in respect to the loss to the
estate.
9. A Division Bench of the High Court of Himachal
Pradesh in Narinder Kaur and others vs. State of H.P. and
others, [1991 ACJ 767], held as follows :
8. We have heard the learned counsel for the
parties and gone through the records. The principle
of action personalis moritur cum persona relates
only to the personal or bodily injuries and not to
the loss caused to the estate of the deceased by
the tortfeasor. In its applicability, the principle
stands considerably modified by the provisions of
section 306 of the Indian Succession Act, which
clearly lays down that all demands whatsoever and
all rights to prosecute or defend any action or
special proceedings existing in favour of or against
a person at the time of his death survive except
causes of action for defamation, assault and other
personal injuries not causing death of the party
etc. which come to an end with the death of
injured. The loss to the estate is thus not covered
by the exceptions contained in section 306 of the
Indian Succession Act. While taking this view, we
are fortified by the decisions of the Supreme Court
in Melepurath Sankunni Ezhuthassan v. Thekittil
Geopalankutty Nair, 1986 ACJ 440 (SC) and M.
Veerapa v. Evelyn Sequeira, AIR 1988 SC 506. The
claimants as legal representatives of the original
claimant were, as such, entitled to be substituted
in his place with a view to continue the
proceedings in the case and to have a decision on
the claim in respect of the loss caused to the estate
of the deceased.
10. As Judge of the High Court of Himachal Pradesh I
have taken the same view in Ram Ashari and others vs.
H.R.T.C. and another, [IV (2005) ACC 379], wherein it
was held as follows:
6. It is well settled law that an action in torts for
claim of compensation for damages on account of
injuries suffered by an injured is a right personal
to the injured. This right cannot be continued by
the legal heirs or legal representatives. It is no
doubt true that the legal heirs or the legal
representatives can continue the proceedings in so
far as they relate to the loss to the estate such as
medical expenses, amount spent on treatment etc.
However, the claim with regard to the pain and
suffering, future loss of income and such related
matters is an action which is personal to the
injured alone and cannot be continued after his
death unless it is proved that the death is the
result of the injuries suffered in the accident.
11. A Full Bench of the Madhya Pradesh High Court in
Bhagwati Bai and another vs. Bablu and others, [2007
ACJ 682], has taken an identical view in the matter. The
Full Bench after considering the entire law on the subject
held as follows:
15. In the result, we are of the considered opinion
that a claim for personal injury filed under Section
166 of the Motor Vehicle Act, 1988 would abate on
the death of the claimant and would not survive to
his legal representatives except as regards the claim
for pecuniary loss to the estate of the claimant ......"
It is, therefore, obvious that the legal representatives
of the deceased can continue the action but only in
respect of pecuniary loss to the estate of the
claimant.
It is, therefore, obvious that the legal representatives of
the deceased can continue the action but only in respect
of pecuniary loss to the estate of the claimant.
12. Legal representatives have a right to be substituted
insofar as the amount for which decree or award has
been passed, but they cannot claim enhancement for
amount of non-pecuniary losses, such as pain and
suffering etc. Therefore, the claimants can only claim
compensation with regard to the loss to the estate."
09. On perusal of the aforesaid citation it appears
that it is the settled position of law that an action in torts for
claim of compensation for damages on account of injuries
suffered by an injured is a right personal to the injured and
this right cannot be continued by the legal heirs or legal
representatives. However, the legal representatives of the
deceased can continue the action but only in respect of
pecuniary loss to the estate of the claimant. Meaning
thereby claiming compensation for pain and sufferings,
compensation for future discomfort, loss of amenities of life,
compensation for future earnings are all losses which are
personal to the injured and the same cannot be inherited by
the legal heirs of the injured. The legal heirs of the injured
can only claim for compensation with regard to the loss of
estate and loss of estate would include expenditure on
medicines, treatment, diet, attendant, doctor's fee etc.
including some income and future prospects which would
have caused reasonable accretion to the instinct but for the
certain expenditure which had to be met from and depleted
the estate of the injures, subsequently deceased. Learned
Tribunal below in determining the amount of compensation
also relied upon the judgment of The Oriental Insurance
Co. Ltd. vs. Khalon @ Jasmail Singh Khalon. In para-14
and 15 of the judgment dated 19.09.2023 the Learned
Tribunal observed as under:
"14. In "The Oriental Insurance Co. Ltd. vs., Khalon @
Jasmail Singh Khalon" it was observed by the Hon‟ble
Apex court that while the claim for personal injuries may
not have survived after the death of injured unrelated to
the accident or injuries, during pendency of the appeal,
but the claim for loss of estate was available to and could
be pursued by the legal representatives of the deceased.
It was also observed that loss of estate would include
expenditure on medicines, treatment, diet, attendant,
Doctor‟s fee etc. including income and future prospects
which would have caused reasonable accretion to the
estate but for sudden expenditure which have to be met
from and depleted the estate of the injured, subsequently
deceased.
15. In Harimohan Das and other vs. Panchadeep Travels
and others (2016) vol. I TLR 818 the Hon‟ble High Court
of Tripura observed that the legal representatives have a
right to be substituted in so far as the amount for which
decree or award has been passed but they cannot claim
enhancement for amount of non-pecuniary losses such as
pain and sufferings etc. and therefore, the claimants can
only claim compensation with regard to the loss to the
estate."
10. Finally Learned Tribunal below determined the
total amount of compensation to the tune of Rs.16,85,651/-
but deducted the amount of compensation already paid to
the claimant in pursuance of the first judgment of the
Tribunal amounting to Rs.3,77,553/-. So after deduction the
Learned Tribunal below determined the amount of
compensation to the tune of Rs.13,08,098/- with 7.5%
interest p.a. from the date of death of the deceased i.e.
w.e.f. 04.02.2020 to till the date of payment in pursuance
of the judgment of Hari Mohan Das (supra). As relied upon
by the appellant the principle of other citations are equally
applicable in this case.
11. After hearing both the sides and after going
through the aforesaid citations referred by the parties it
appears that there was no perversity in the judgment of the
Learned Tribunal below and it appears that in the present
appeal the appellant has failed to drawn the attention of the
court any perversity to interfere with the judgment of the
Learned Tribunal below.
12. In the result, the appeal filed by the appellant
stands dismissed being devoid of merit. But considering the
facts and circumstances of the case no order is passed as to
costs. The judgment and award dated 19.09.2023 delivered
by Learned Motor Accident Claims Tribunal No.2, West
Tripura, Agartala in connection with Case No.T.S.(MAC) 86
of 2014 is hereby upheld and accordingly it is affirmed. The
appellant insurance company be asked to deposit the award
amount to the Tribunal below within a period of six weeks
from the date of receipt of copy of the judgment. No
interference is made in regard to disbursal of amount as
ordered by the Tribunal by the said judgment dated
19.09.2023.
Send down the LCRs along with a copy of this
judgment. A copy of this judgment be supplied free of cost
to the Learned counsel for the parties.
Pending application, if any, stands disposed of.
JUDGE
MOUMITA Digitally signed by
MOUMITA DATTA
DATTA Date: 2024.08.17
16:58:49 +05'30'
Moumita
