Insurer vs Smti. Gayetri Shil
2024 Latest Caselaw 75 Tri

Tripura High Court

Insurer vs Smti. Gayetri Shil on 25 January, 2024

                   HIGH COURT OF TRIPURA
                         AGARTALA
                   MAC APP No.11 of 2023

The National Insurance Company Ltd
(To be represented by Senior Divisional Manager),
Agartala Divisional Office, 42, Akhaura Road,
P.O.-Agartala, District-West Tripura, Pin-799001.
                                       .......Insurer Appellant.
                             Versus
1. Smti. Gayetri Shil,
   W/O. Late Nani Gopal Shil.
2. Smti. Jayanti Shil,
   W/O. Bipad Bhanjan Shil,
   D/O. Late Nani Gopal Shil.
3. Shri Prasanta Kumar Shil,
   S/O. Late Nani Gopal Shil,
  - All are residents of Chandigarh, Melaghar,
    P.O. & P.S.- Melagarh, District-Sepahijala, Tripura.

4. Smti. Popi Shil,
   W/O. Shri Sajal Kumar Shil,
   D/O. Late Nani Gopal Shil, of Krishnanagar, Kadamtali,
   C/O.Dr.S.K. Dhar, P.O.-Agartala, P.S- West Agartala,
   District- West Tripura.
                                 ......Claimant-respondents.

5. Shri Suman Das, S/O. Late Surjya Kumar Das, Village- Padmadepha, Melaghar, P.O. & P.S.-Melaghar, District-Sepahijala, Tripura, Owner of TR-07-1793 (Tripper-Truck).

6. Md. Anowar Hossain, S/O. Nurul Islam, Of Dupuriaband, Ashabari Panchayat Ward No.5, P.S.- Kalamchhara, District-Sepahijala Tripura, Driver of TR-07-1793(Tripper-Truck).

.......Owner & Driver respondent.

For Appellant(s)       :     Mr. A.K. Deb, Adv,
For Respondent(s)      :     Mr. N. Chowdhury, Adv,
                             Mr. A.K. Pal, Adv,
                             Mr. Samarjit Bhattacharjee, Adv.

Date of Hearing        :     11.01.2024





Date of delivery of
Judgment and Order :       25.01.2024
Whether fit for
Reporting             :    NO

         HON'BLE MR. JUSTICE BISWAJIT PALIT

                    Judgment & Order

The National Insurance Company Limited as an

appellant has preferred this appeal under Section 173 of

M.V. Act challenging the award dated 17.11.2022 passed by

Member, Motor Accident Claims Tribunal, Sepahijala District,

Sonamura in connection with case No. T.S.(MAC) 11 of 2018

and by this appeal the appellant has prayed for modification

of the award passed by the Learned Tribunal.

02. The gist of the appeal preferred by the appellant

in short is that the respondent claimant-petitioners being the

wife, son and two daughters of the deceased Nani Gopal Shil

filed claim petition before the Learned Tribunal under Section

166 of M.V. Act claiming compensation of Rs.21,10,000/-

(Twenty one lakhs and ten thousand only) due to the death

of Nani Gopal Shil by a vehicular accident on 18.08.2018. On

that day, Nani Gopal Shil was proceeding from his residence

by riding scooter, bearing No. TRM-1154 towards his rubber

garden and reached at Chandigarh on Melaghar-Sonamura

road at about 20.20 p.m that time a truck bearing No. TR-

07-1793 came in high speed and in rash and negligent

manner dashed against said Nani Gopal Shil, as a result of

which he sustained grievous injuries on his person and

thereafter, he was taken to Melaghar Hospital by the local

people when the attending Doctor of that Hospital declared

him as dead and on the same day postmortem was done and

after that relating to accident, a case was registered vide

Melaghar P.S. Case No. 71 of 2018 under Section 279 and

304(A) IPC. According to the respondent claimant-

petitioners, the deceased was 62 years at the time of

accident and his monthly income was Rs. 30,000/-(Rupees

thirty thousand only) from the profession of watch mechanic

and business. The respondent O.P. owner of Tripper Truck

bearing No.TR-07-1793 contested the claim by filing one

written statement denying the fact of accident and further

submitted that at the time of accident one Md. Anowar

Hossain was driving the vehicle with valid driving license and

the said vehicle was insured with the present appellant

covering the period of accident and the O.P. owner prayed

for fixing liability upon the appellant i.e. the Insurance

Company. The appellant, National Insurance Company also

contested the claim by filing written statement denying the

fact of accident and further submitted that the claimant-

petitioners are to prove their case and further submitted that

the petitioners have/had no idea about the monthly income

of the deceased in absence of any documentary evidence on

record.

Upon the pleadings of the parties, the following

issues were framed by the Tribunal:

i. Is the claim application maintainable in its present form and nature?

ii. Whether the victim of Nani Gopal Shil died on a road traffic accident took place 18.08.2018 at about 12.20 PM at Chandigarh on Melaghar-Sonamura road due to rash and negligent driving of the driver of vehicle bearing No. TR07-1793 (Tripper Truck)?

iii. Are the claimant petitioners entitled to get compensation as prayed for, if so then to what extent?

iv. Who shall be liable to pay the compensation?

03. To substantiate the claim petition the claimant-

petitioner No.1 was examined as PW-1 and she also relied

upon some documentary evidences which were marked as

Exhibit-1 to Exhibit-7 in the case.

Witness of the claimant petitioners:

PW-1: Smt. Gayetri Shil.

Exhibited of the claimant petitioners. Exhibit-1: Certified copy of printed FIR. Exhibit-2: Certified copy of Ejahar. Exhibit-3: Certified copy of charge-sheet. Exhibit-4: Certified copy of PM report of deceased.

Exhibit-5: Copy of Death certificate of deceased Nani Gopal Shil.

Exhibit-6: Copy of Survival certificate of deceased Nani Gopal Shil.

Exhibit-7: Copy of admit of deceased Nani Gopal Shil.

04. On the other hand, the respondent owner/driver

also appeared and they were examined as OPW-1 and 2 and

relied upon some documentary evidences which were also

marked as Exhibit-A to Exhibit-D.

Witness of the opposite-parties:

OPW-1: Anowar Hossain.

OPW-2: Suman Das.

Exhibited of OP No.1.

Exhibit-A:The photocopy of driving license of Anowar Hossain.

Exhibit-B:The photocopy of registration certificate of vehicle bearing No. TR07-1793 (Tripper Truck).

                 Exhibit-C:Copy            of   insurance     policy
                 No.552700/31/17/6360105833                   w.e.f.
                 30.10.2017 to 29.10.2018.

Exhibit-D: Copy of endorsement certificate of insurance Company No.552700/31/17/6382009448.

05. Therefore, Learned Tribunal after considering the

evidence on record and after hearing the contesting parties

determined the compensation of Rs. 9,93,000/-(Rupees nine

lakhs and ninety thousand only) with 8% interest from the

date of filing the claim petition till the date of realization with

further direction to the appellant, Insurance Company to

deposit the amount within a period of 60 days from the date

of award and in case of default to pay more additional

interest at the rate of 9% per annum till the date of

realization.

06. Challenging that award the present appellant has

preferred this appeal. In course of hearing of arguments

Learned for the appellant fairly submitted that the amount of

compensation determined by the Learned Tribunal was not

proper and not in accordance with the principles of law laid

down by the Hon'ble Apex Court in different cases for which

the award needs to be modified. He further submitted that

no valid route permit of the offending vehicle was produced

and proved by the owner of the vehicle. Hon'ble the

Supreme Court of India in Amrit Paul Singh & Anr. Vs.

Tata AIG General Insurance Co. Ltd. & Ors. dated

17.05.2018 reported in (2018) 7 SCC 558 in Para 23

observed as under:

"23.In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or the fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh:(2004) 3 SCC 297 and Lakhmi Chand(2016) 3 SCC 100 in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has

been brought on record by the insured to prove that the he a permit of the vehicle. In such a situation, the onus cannot be case on the insurer. Therefore, the tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles sated in Swaran Singh:

(2004) 3 SCC 297 and other cases pertaining to pay and recover principle."

Referring the said citation Learned Counsel

submitted that the appellant, Insurance Company in the

written statement submitted before the Learned Tribunal in

Para 29(W.S) specifically asserted that in absence of valid

route permit the Insurer of the vehicle was not responsible to

pay any compensation rather the owner of the Truck bearing

No. TR07-1793 was solely responsible to pay compensation if

at all payable. But the Learned Tribunal did not consider this

point and awarded compensation.

07. Furthermore, the claimant-petitioner in the claim

petition submitted that the deceased was a watch mechanic

and used to earn Rs.30,000/-( Rupees Thirty thousand only)

per month but in the claim petition it was asserted that his

monthly income was Rs.20,000/-( Rupees twenty thousand

only) but in this regard, no documentary evidence was

produced by them rather the Tribunal determined the

amount of monthly income of the deceased at Rs.12000/-

(Rupees twelve thousand only) per month which according to

Learned Counsel for the appellant was without any basis and

not supported by Legal reasonings rather it should be 6000/-

(Rupees six thousand only) per month. Learned Counsel also

submitted that PW1 before the Learned Tribunal stated that

at the time of accident the deceased was 62 years of old but

the Learned Tribunal ignoring the principle of law laid down

in Pranay Sethi's case awarded 40% of the monthly income

as future prospects which the claimant petitioners are not

entitled to and referred the citation of Hon'ble Supreme

Court of India in National Insurance Company Limited

vs. Pranay Sethi and Ors. dated 31.10.2017 reported in

(2017) 16 SCC 680. In Para No. 59.3 and 59.4, the Hon'ble

Apex Court further observed as under:

"59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.

59.4. In case the deceased was self- employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."

Referring the principles of law laid down by the by

the Hon'ble Supreme Court Learned Counsel drawn the

attention of this Court that Learned Tribunal ignoring the

principle as aforesaid determined the future prospect as 40%

of monthly income of the deceased but actually the claimant

petitioners were not entitled to get such amount as future

prospects. So, the Learned Tribunal committed error in

determination of compensation granting 40% of future

prospects which needs to be modified.

08. Learned Counsel for the appellant further

submitted that the Learned Tribunal at the time of

determination of compensation awarded interest at the rate

of 8% per annum but actually it should be at the rate of

Rs.5.3% and 2.5% prevailing as per RBI guideline on that

relevant point of time and he also relied upon citation of

Hon'ble Supreme Court in Subulaxmi vs. Managing

Director, Tamil Nadu State Transport Corporation &

Another dated 01.11.2012 reported in 2012 10 SCC 177 in

Para No. 13 and another citation Dharampal and Others

Vs. U.P. State Road Transport Corporation dated

12.05.2008 reported in (2008) 12 SCC 208 in Para No. 14

respectively wherein Hon'ble Supreme Court observed as

follows:

In 2012 10 SCC 177:

"13.In Abati Bezbaruah v. Geological Survey of India and Another:(2003) 3 SCC 148 S.B. Sinha, J. in his opinion after referring to the earlier decisions opined that the question as to what should be the rate of interest would depend upon the facts and circumstances of each case and award of interest would normally depend on the bank rate prevailing at that time. AR. Laxmanan, J. in his concurring opinion stated as follows: (SCC p. 152, para 18)

18...The rate of interest must be just and reasonable depending upon the facts and circumstances of each case and taking all relevant factors including inflation, change of

economy, policy being adopted by Reserve Bank of India from time to time, how long the case is pending, permanent injuries suffered by the victim, enormity of suffering, loss of future income, loss of enjoyment of life etc., into consideration."

In (2008) 12 SCC 208:

"14. In the backdrop of the aforesaid legal position, we may now examine the facts of the present case. The accident in the present case had taken place on 1-9-2004 and the Tribunal had passed the award on 18-5-2005. Rate at which the interest is to be awarded would normally depend upon the bank rate prevailing at the relevant time. Since in T.N. State Transport Corpn. Ltd.: (2005) 6 SCC 236 decided in the month of April 2005, the prevailing rate of interest on bank deposits was found and held to be 7.5% per annum, we consider it appropriate to award the same rate of interest, as the same was the prevailing rate of interest on the date of the passing of the award i.e. 18-5-2005 in the present case. Consequently, we hold that the appellants would be entitled to be paid interest at the rate of 7.5% from the date of application till the date of payment."

So, Learned Counsel also submitted to consider

the above principle of the Hon'ble Supreme Court by

modifying the award in respect of rate of interest granted.

09. Further, Learned Counsel also drawn the attention

of this Court that Learned Tribunal in Para 22 of the

judgment/award also ordered that in the event of failure to

deposit of award by the Insurance Company within a period

of two months, the appellant shall also have to pay an

additional interest at the rate of Rs.9% per annum till

realization which is also barred in view of the principle laid

down by the Hon'ble Supreme Court. In this regard, Learned

Counsel relied upon another citation in National Insurance

Co. Ltd. V. Keshab Bahadur and Others dated

20.01.2004, reported in (2004) 2 SCC 370 in Para 13,

Hon'ble Supreme Court held as follows:

"13. Though Section 110-CC of the Act (corresponding to Section 171 of the new Act) confers a discretion on the Tribunal to award interest, the same is meant to be exercised in cases where the claimant can claim the same as a matter of right. In the above background, it is to be judged whether a stipulation for higher rate of interest in case of default can be imposed by the Tribunal. Once the discretion has been exercised by the Tribunal to award simple interest on the amount of compensation to be awarded at a particular rate and from a particular date, there is no scope for retrospective enhancement for default in payment of compensation. No express or implied power in this regard can be culled out from Section 110-CC of the Act or Section 171 of the new Act. Such a direction in the award for retrospective enhancement of interest for default in payment of the compensation together with interest payable thereon virtually amounts to imposition of penalty which is not statutorily envisaged and prescribed. It is, therefore directed that the rate of interest as awarded by the High Court shall alone be applicable till payment, without the stipulation for higher rate of interest being enforced, in the manner directed by the Tribunal."

10. Finally, Learned Counsel for the appellant argued

for modification of the award passed by the Learned Tribunal

in view of the settled principles of law of the Hon'ble

Supreme Court. On the other hand, Learned Counsel for the

respondent claimants submitted that after taking into

consideration all the aspects Learned Tribunal rightly

delivered the award in favour of the claimants. It was

submitted that the claimant-petitioners by adducing

oral/documentary evidence on record could prove their claim

petition before the Learned Tribunal and it was further

submitted that the monthly income of the deceased was

Rs.30,000/- (Rupees thirty thousand only) per month

although the claimant-petitioner could not prove any

documentary evidence in this regard. But Learned Tribunal

considering the rate of wages of daily labourer in the State of

a skilled worker at the rate of Rs.400/- (Rupees four hundred

only) per day for 25 days calculated the monthly income of

the deceased at Rs.10,000/- (Rupees ten thousand only) per

month which was very nominal, reasonable and appropriate

and accordingly, determined the amount of compensation. In

respect of other assertions raised by Learned Counsel for the

appellant, Learned Counsel for the respondent claimants

submitted that after taking into consideration all aspects

Learned Tribunal awarded compensation which needs no

interference by the High Court and urged before the Court to

uphold and affirm the award delivered by the Learned

Tribunal. Other Learned Counsels for the respondent-

claimants also fairly submitted that Learned Tribunal rightly

and reasonably awarded appropriate compensation in favour

of the respondent claimants.

11. I have heard arguments of the parties at length

and gone through the record of the Learned Tribunal. It

appears that there is no dispute on record in respect of death

of the deceased Nani Gopal Shil on 18.08.2018. The present

appellant and other contesting parties did not raise any

objection regarding the death of the deceased on the alleged

day. The only question for determination of consideration in

this appeal, is that regarding calculation of compensation

awarded by the Learned Tribunal, which the present

appellant has challenged before this Court. It is on record

that the respondent petitioners were/are the wife, son and

daughters of the deceased victim Nani Gopal Shil. It also

transpires from the evidence of PW-1 that at the time of

death the deceased was 62 years of age. There is no

contrary evidence in this regard from the side of contesting

parties. The claimant petitioners asserted that the deceased

was a watch mechanic and his monthly income was

Rs.30,000/-(Rupees thirty thousand only) although in the

claim petition they claimed the monthly income of the

deceased as Rs. 20,000/-(Rupees twenty thousand only) but

during evidence one of the claimant Gayetri Shil as PW-1

submitted that the monthly income of the deceased was

Rs.30,000/-(Rupees thirty thousand only). In this regard, no

documentary evidence could produce by the respondent-

claimants before the Learned Tribunal. Further, considering

the wages of a skilled labourer in rural areas in our State,

the Learned Tribunal decided and determined the monthly

income of the deceased at Rs.10,000/-(Rupees ten thousand

only) per month taking into consideration Rs.400/-(Rupees

four hundred only) per day as his daily wages and counted

25 days worked in a month and accordingly, determined the

monthly income Rs.10,000 per month. Thereafter, Learned

Tribunal decided to add 40% of monthly income to be added

as future prospects on the basis of judgment of Pranay

Sethi and Ors.(supra). But in this regard, it is submitted

that in the aforesaid judgment of Pranay Sethi(supra),

Hon'ble the Apex Court decided to add 40% of the

established income where the deceased was below 40 years,

25% where the deceased was between the age of 40-50

years and 10% where the deceased was between the age of

50-60 years. In Para 59.4 of the said judgment, in case the

deceased was self employed or on a fixed salary. Here in the

case at hand it appears that there was no dispute on record

regarding the fact that the deceased was a self-employed

person, but the Learned Tribunal at the time of

determination of compensation wrongly misinterpreted the

judgment of Hon'ble Apex Court in Pranay Sethi and

Ors.(supra) and calculated 40% of monthly income of the

deceased as future prospects and thereafter calculated the

yearly loss of income of the deceased Rs.1,68,000/-

(Rs.10,000+40% of Rs.10,000x12) which in my

considered view, Learned Tribunal wrongly calculated.

Actually, it should be Rs. 1,20,000/- (Rs.10,000x12). So, the

respondent-claimants are entitled to get Rs. 1,20,000/-

(Rupees one lakh and twenty thousand only) as loss of

yearly income, along with that amount in pursuance of the

judgment of Hon'ble Supreme Court of India in Sarla Verma

vs. Delhi Transport Corporation and Anr., since the

deceased was 62 years at the time of death and there was

no dispute on record in this regard, so, the multiplier would

be 7. From the aforesaid calculation of income of the

deceased 1/3 of such income to be deducted towards

personal expenses of the deceased. Hence, after deduction

1/3 of personal income his actual income would come to

Rs.1,20,000-40,000=Rs.80,000/-. Now the aforesaid amount

of Rs.80,000/-(Rupees eighty thousand only) would be

multiplied by 7 as per Sarla Verma(supra) then the amount

would come to Rs. 80,000x7 i.e. Rs. 5,60,000/-(Rupees five

lakhs and sixty thousand only).

12. Learned Counsel for the appellant although

asserted that no valid route permit could be proved and

accordingly, in support of his contention relied upon the

citation of Hon'ble Apex Court as indicated above. But in this

regard, from the record of the Learned Tribunal it appears to

me that there was no contrary evidence on record from the

side of the appellant and nothing was raised in this regard

before the Learned Tribunal at the time of inquiry. So, at this

stage this plea cannot be taken into consideration.

13. Regarding rate of interest Learned Counsel for the

appellant submitted that it should be at the rate of 6% per

annum. But the Tribunal awarded rate of interest at the rate

of 8% per annum. In this regard, it is submitted that

considering the rate of inflation in the market and also

considering the rate of interest awarded by Hon'ble Apex

Court and the different High Courts, it appears to me that

Learned Tribunal rightly determined the rate of interest at

the rate of 8% per annum which in my considered view

needs no interference at this stage. Even to counter the

assertion no documentary evidence in this regard was also

produced and proved by the present appellant before the

Learned Tribunal. Now after hearing both the sides and also

after going through the record of the Learned Tribunal I

would like to determine the amount of compensation as

follows:

i. Monthly income: Rs.10,000/-

ii.Yearly loss of income:Rs.10,000x12=1,20,000/-

iii. Deduction 1/3 towards personal expenses of

the deceased= Rs.1,20,000-40,000=80,000/-

iv.Applying multiplier of 7 as per Sarla Verma's

(judgment) amount comes to Rs.80,000x7=

5,60,000/-.

v. Loss of estate: Rs. 16,500/-

vi. Towards spousal consortium:Rs.44,000/-

vii. Towards funeral expenses:Rs.16,500/-

viii.Parental consortium: Rs.44,000x3=1,32,000/-

The Learned Tribunal determined the amount of

loss of estate, spousal consortium etc. on the basis of

judgment of Hon'ble Supreme Court of India reported in N.

Jayashree and Ors. vs. Chalamandalam Ms. General

Insurance Company Limited.

Now the total amount comes to Rs.5,60,000 +

16,500 + 44,000 + 16,500 + 1,32,000 = Rs.7,69,000/-

(Rupees seven lakhs sixty-nine thousand). Then the

respondent claimants are entitled to get the aforesaid

amount of compensation with interest at the rate of 8% per

annum from the date of filing claim petition i.e. with effect

from 11.12.2018 to till the date of realization.

14. In the result, the appeal filed by the appellant is

partly allowed. The respondent claimant-petitioners are

equally entitled to get Rs.7,69,000/- (Rupees seven lakhs

sixty nine thousand) along with 8% interest per annum from

the date of filing the claim petition i.e w.e.f. 11.12.2018 to

till the date of realization. Since the matter is pending from

2018, so, it is ordered that the appellant, Insurance

Company shall deposit the award within a period of 30 days

from the date of judgment passed by this Court.

15. In default of payment of award within the

stipulated period as aforesaid the appellant, Insurance

Company shall also have to pay an additional interest at the

rate of 9% per annum till realization of the amount. The

respondent-claimants shall submit the relevant documents to

the Registry of the High Court regarding disbursal of amount

and the same shall be made as per the operative portion of

the award of the Learned Tribunal save and except the

amount modified. It appears from the record that the

appellant has already deposited Rs.4,96,500/-(Rupees four

lakhs ninety six thousand and five hundred only) to the

Registry of this High Court. So, the balance amount also

shall be deposited by the appellant to the Registry of the

High Court within the stipulated period. After deposit of

amount, necessary compliance be made by the Registrar

General, High Court of Tripura.

With this observation, the case is disposed of.

Pending application, if any, also stands disposed of. A copy

of this judgment be supplied to Learned Counsel for the

appellant for compliance and also a copy of this judgment be

supplied to Learned Counsel for the claimants Mr. N.

Chowdhury for information and necessary action.

Send down a copy of this judgment along with

the LCR.

                                                            JUDGE




MOUMITA              Digitally signed by
                     MOUMITA DATTA

DATTA                Date: 2024.01.29
                     14:26:26 +05'30'
Purnita