Tripura High Court

The Managing Director vs Smt. Nilu Saha on 25 January, 2024

                   HIGH COURT OF TRIPURA
                         AGARTALA
                   MAC APP No.18 of 2023

  The Managing Director,
  North Bengal State Transport Corporation,
  North Bengal Bus Depot, Malaguri, Pradhan Nagar,
  P.O and P.S- Coochbihar, District-Coochbihar,
  Siliguri, West Bengal-736101,
  (owner of vehicle bearing registration NO.WB-63-
   2270,Bus).
                           .......Opposite Party-Appellant.

                              Versus

1. Smt. Nilu Saha,
   W/O. Late Sanjit Saha.
2. Ms. Nandita Saha,
   D/O. Late Sanjit Saha.
3. Master Raj Saha,
   S/O. Late Sanjit Saha,
   All are residents of South Dhaleswar, near Water supply Road,
P.O- College Tilla, P.S. East Agartala, District- West Tripura-
799004 (Claimant-respondent No.2 and 3 being minor are

represented by their natural guardian, mother Smt. Nilu Saha).

........Claimant-Respondents.

For Appellant(s)       :      Mr. T.K. Deb, Adv,

For Respondent(s)      :      Mr. Alik Das, Adv,

Date of Hearing        :      18.01.2024
Date of delivery of
Judgment and Order :          25.01.2024
Whether fit for
Reporting              :      NO

         HON‟BLE MR. JUSTICEBISWAJIT PALIT

                      Judgment &Order

           The     Managing    Director,   North   Bengal   State

Transport Corporation Limited is present before the High

Court as appellant. The appellant has preferred this appeal

under Section 173 of Motor Vehicles Act challenging the

award dated 24.08.2022 passed in T.S.(MAC) 46 of 2014

by Motor Accident Claims Tribunal, Court No.1, West

Tripura, Agartala for modification of the award impugned.

Before analyzing the appeal on merit, let us visit the

subject matter of the case.

02. The respondent claimants have filed one

petition under Section 166 of the Motor Vehicles Act

claiming compensation by an amount of Rs.49,00,000/-

(Rupees forty nine lakhs only) for the death of one Sanjit

Saha in a vehicular accident on 27.01.2012 at around

1330 hours while said Sanjit Saha was coming from

coochbihar City to BSF Camp at Sonari by riding his bi-

cycle through coochbihar Alipur Road and on the way the

offending vehicle bearing No.W.B-63-2270(Bus) of North

Bengal State Transport Corporation being driven by the

driver rashly and negligently dashed against the said Sanjit

Saha for which he sustained grievous injuries on his head

and other parts of his body and was shifted to coochbihar

Hospital by BSF authority. Since the physical condition of

the victim was deteriorated, so, he was referred to Siliguri

Hospital. But on 31.01.2012 in course of his treatment, the

victim succumbed to his injuries in Siliguri Hospital.

Further according to the respondent-claimants, at the time

of death deceased was aged about 44 years and he used

to earn Rs.23,093/- (Rupees twenty three thousand and

ninety three only) per month and hence, the respondent-

claimants filed the claim petition. The appellant as O.P.

inspite of receiving summons although appeared but did

not file any written statement and as such by a judgment

dated 12.04.2016 an amount of Rs.34,92,341/- along with

9% interest was awarded against the present appellant

from the date of filing the petition till payment. After that,

a condonation petition was filed but that was also rejected

and thereafter, the present appellant preferred a revision

petition before the High Court and the High Court vide

order dated 19.06.2020 passed in CRP 99 of 2019 set

aside the order passed in the condonation petition and

directed the Court to hear the application under Order IX

Rule 13 of CPC to set aside exparte award dated

12.04.2016 and the present case was restored to file

before the Learned Tribunal and the appellant contested

the proceeding by filing written statement. Before the

Learned Tribunal the following issues were framed:

"(1)Did deceased Sanjit Saha die in a road traffic accident occurred on 27.01.2012 at 1330 hours near BSR Campus Sonari of 181 Bn. BSF on Cooch Behar, Alipurduar Road under Kotwali P.S., Cooch Behar, West Bengal out of use of vehicle bearing registration No.WB-63-2270 (Bus) due to rash and negligent driving by its driver? (2) Are the petitioners entitled to get compensation, as prayed for and if so, to what amount and who is liable to pay the same?

(3) To what other reliefs the parties are entitled?"

03. To substantiate the case the respondent claimant-

petitioner No.1 Nilu Saha was examined as PW-1 and relied

upon some documents which were marked as exhibits in the

case, on the other hand, on behalf of the appellant one

Sampad Das, UD Clerk of North Bengal State Transport

Corporation was examined as OPW-1 and he also relied upon

some documents which were marked as exhibits-A to H and

finally, Learned Tribunal after hearing both the sides passed

an award for an amount of Rs.34,92,341/- along with 9%

interest per annum from the date of filing the petition till

recovery and challenging that judgment the appellant is

before the High Court by filing this appeal.

04. In course of hearing, Learned Counsel for the

appellant submitted that the Learned Tribunal without

making any observation and findings allowed the claim

petition which needs to be interfered with and there was no

eye witness of the alleged occurrence of offence and the

claimant-petitioner No.1 was at Agartala at the time of

accident, so although she later on filed a claim petition, so,

legally there is no scope to place any reliance upon the FIR

laid by the claimant-petitioner No.1. Further, Learned

Counsel drawn the attention of the Court referring the post-

mortem report of the deceased and submitted that there is

no indication that the deceased expired due to road traffic

accident rather from the contents of the post mortem report,

it appears that the deceased expired due to head injury

which was ante mortem in nature and according to Learned

Counsel this injury could sustain by any other means but the

claimant-petitioner has failed to prove that the deceased

succumbed to his injuries due to the road traffic accident of

the offending vehicle of the appellant. Learned Counsel

further drawn the attention of the Court that the claimant-

petitioner before the Learned Tribunal save and except Voter

ID Card could not produce any other documentary evidence

to substantiate the age of the deceased but the Learned

Tribunal determined the age of the deceased as 45 years at

the time of death and applied multiplier 13 but according to

the appellant at the time of accident the age of the deceased

would be 46 years and in that case multiplier would be 14,

which the Learned Tribunal failed to consider at the time of

determination of compensation. Learned Counsel further

submitted that only the salary certificate was produced by

the claimant-petitioner in support of their claim but the

Issuing Authority of the salary certificate was not produced

to prove the salary certificate. So, legally there is no scope

to place any reliance upon that and finally, Learned Counsel

for the appellant submitted that since the respondent-

claimants failed to prove their case before the Learned

Tribunal, so, urged he before this Court to set aside the

award passed by the Learned Tribunal. On the other hand,

Learned Counsel for the respondent-claimants submitted that

on the day of alleged accident the respondent claimant-

petitioner No.1 was available at Siliguri and she laid the FIR

on the same day i.e. on 27.01.2012 and on the issue of

accident, a police case was registered vide Kotwali P.S case

No.50 of 2012 under Section 279/338/427 of IPC and finally

the case was ended in charge-sheet.

05. Furthermore, according to Learned Counsel for

the respondent-claimants, the accident report as relied upon

by the appellant O.P. before the Learned Tribunal clearly

shows the involvement of the offending vehicle of the

appellant O.P. in connection with the matter and the Learned

Tribunal after taking into consideration all aspects rightly and

reasonably delivered the award in favour of the respondent-

claimants of the case which needs no interference and urged

before the Court to uphold the judgment of Learned Tribunal.

06. I have heard arguments of both the sides and

gone through the record of the Learned Tribunal below.

There is no dispute on record that the alleged accident took

place on 27.01.2012 and due to that accident, the deceased

victim sustained severe injuries and ultimately, he

succumbed to his injuries on 31.01.2021. It is also on record

that earlier the Learned Member, Motor Accident Claims

Tribunal by an exparte award dated 12.04.2016 awarded a

sum of Rs. 34,92,341/-(Rupees thirty-four lakhs ninety-two

thousand three hundred forty-one only) with 9% interest per

annum which was challenged before the Hon'ble High Court

and later on, as per direction of the Hon'ble High Court, the

present appellant contested the case and adduced evidences.

Thereafter, by a fresh judgment dated 24.08.2022 the

concerned Member, Motor Accident Claims Tribunal, West

Tripura, Agartala also awarded the said amount in favour of

the respondent-claimants of the case.

07. In course of hearing of arguments, Learned

Counsel for the appellant raised some issues which I have

discussed above. I have gone through the record of the

Learned Tribunal below and it appears that on the day of

accident i.e. on 27.01.2012, the respondent claimant-

petitioners No.1 laid one FIR to Officer-in-Charge of Kotwali

P.S., Cooch Behar. Showing her address at Government

Quarter No.8, Type-II, 181 Bn. B.S.F., Sonari, District Cooch

Behar and on the same day the Officer-in-Charge of the said

P.S. at about 2125 hours registered kotwali P.S. case No. 50

of 2012 under Section 279/338/427 of IPC. So, the

submission of Learned Counsel for the appellant cannot be

accepted that no FIR was laid on the day of alleged accident.

Learned Counsel for the appellant further submitted that no

eye witness was examined, who were present to the P.O. at

the time of accident. In this regard, it is submitted that we

are dealing with a compensation case not a Criminal Trial so

it is the subject matter of the Police Authority to investigate

the criminal case and thereafter to file charge sheet or final

report as the case may be. But in the given case we are to

see as to whether the respondent-claimants are entitled to

compensation or not. It is on record that during trial the

respondent claimant-petitioners before the Learned Tribunal

relied upon FIR, seizure list, Post mortem examination report

and the copy of charge sheet and from the charge sheet it

appears that regarding the alleged incident after completion

of investigation the I.O. of that case laid charge sheet under

Section 279/338/427/304(A) of IPC against the driver Shri

Hari Mahanta. And from post mortem examination report

further, it appears that on the basis of Matigara P.S. U/D

Case No.83 of 2012 the concerned Medical Officer conducted

post mortem over the dead body of the deceased and from

the report of I.O., further, it appears that "from the

mechanical examination of the vehicle it also appeared to

him that the accident occurred due to other than mechanical

failure". Now, if we go through the exhibited documents

relied upon by the appellant, further, it appears that on the

alleged day that is on 27.01.2012, the accident occurred due

to collision of the deceased with the offending vehicle of the

appellant who was on a bi-cycle and for that a case was

registered (Exhibit-B, 2 sheets) and other exhibited

documents like Exhibit-A is the certificate of registration,

Exhibit-B is the accident and enquiry report, Exhibit-C is the

letter of Divisional Manager, NBSTC, Cooch Behar, Exhibit-D

is the certificate of insurance, issued by the Managing

Director NBSTC, Cooch behar, Exhibit-E is the circular of the

Government of India, Exhibit-F is the order dated

21.06.1960 of the Home Department, Government of India.

Exhibit-G is the office order dated 16.02.1982 of General

Manager, NBSTC, Cooch Behar, Exhibit-H is the fitness

certificate. So, from the exhibited documents relied upon by

the parties, it can be conclusively come to the conclusion

that on 27.01.2012 the accident occurred and due to that

accident, the victim Sanjit Saha succumbed to his injuries.

08. In course of hearing, Learned Counsel for the

appellant relied upon one judgment of our High Court in MAC

Appeal No. 04 of 2020 wherein in Para 3, Hon'ble High Court

opined ("Police investigation cannot be the sole basis

for deciding negligence in Motor Accident case").

Relying upon the same, Learned Counsel for the

appellant submitted that on the basis of this judgment of the

High Court, since the respondent claimants only relied upon

the charge sheet, so simply on the basis of police

investigation no award can be granted, and Learned Tribunal

committed serious error in calculating or awarding

compensation.

09. In this regard, it is further submitted that to

substantiate the claim and the defence, it appears that both

the contesting parties have adduced their evidences before

the Learned Tribunal below and after going through the oral

as well as documentary evidence, the Learned Tribunal below

allowed the application of the respondent claimant-

petitioners and awarded accordingly and furthermore, it

appears that the appellant as opposite-party respondent

before the Learned Tribunal could not raise any circumstance

to disbelieve the evidence on record of the claimant-

petitioner in this respect. So, the citation as referred cannot

be accepted at this stage by this Court.

10. Hon'ble the Supreme Court in (2018) 5 SCC 656

Mangla Ram vs. Oriental Insurance Company Limited

and Others dated 06.04.2018 in Para 25 and 26 observed

as under:

"25. In Dulcina Fernandes:(2013) 10 SCC 646, this Court examined similar situation where the evidence of claimant‟s eyewitness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied as noted in Bimla Devi:(2009) 13 SCC 530. In paras 8 & 9 of the reported decision, the dictum in United India Insurance Co. Ltd. Vs. Shila Datta:(2012) 3 SCC (Civ) 798, has been

adverted to as under:(Dulcina Fernandes Case: (2013) 10 SCC 646, SCC p. 650)

"8. In United India Insurance Co. Ltd. v. Shila Datta:(2012) 3 SCC (Civ) 798 while considering the nature of a claim petition under the Motor Vehicles Act, 1988 a three-Judge Bench of this Court has culled out certain propositions of which Propositions (ii), (v) and

(vi) would be relevant to the facts of the present case and, therefore, may be extracted hereinbelow:

(SCC p. 518, para 10)

10.(ii) The rules of the pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal.

(v)Though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. ...

(vi)The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry.‟

9. The following further observation available in para 10 of the Report would require specific note: (Shila Datta case:(2012) 3 SCC (Civ) 798, SCC p. 519) „10. ... We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute.‟ In para 10 [Dulcina Fernandes and Ors.

(2013) 10 SCC 646], the Court opined that non- examination of witness per se cannot be treated as fatal to the claim set up before the Tribunal. In other words, the approach of the Tribunal should be holistic analysis of the entire pleadings and evidence by applying the principles of preponderance of probability.

26. In the above conspectus, the appellant is justified in contending that the High Court committed manifest error in reversing the holistic view of the Tribunal in reference to the statements of

witnesses forming part of the charge-sheet, FIR, jeep Seizure report in particular, to hold that Jeep No.RST-4701 driven by respondent No.2 was involved in the accident in question. Indeed, the High Court was impressed by the Mechanical Investigation Report (Ext. 5) which stated that only a scratch mark on the mudguard of the left tyre of the vehicle had been noted. On that basis, it proceeded to observe that the same was in contradiction to the claim of the appellant claimant, ruling out the possibility of involvement of the vehicle in the accident. This conclusion is based on surmises and conjectures and also in disregard of the relevant fact that the vehicle was seized by the police after investigation, only after one month from the date of the accident and the possibility of the same having been repaired in the meantime could not be ruled out. In other words, the reasons which weighed with the High Court for reversing the finding of fact recorded by the Tribunal upon holistic analysis of the entire evidence, about the involvement of Jeep No. RST 4701 in the accident, cannot be countenanced. For, those reasons do not affect the other overwhelming circumstances and evidence which has come on record and commended to the Tribunal about the involvement of the subject jeep in the accident in question. This being the main edifice, for which the High Court allowed the appeal preferred by Respondents 2 & 3, it must necessarily follow that the finding of fact recorded by the Tribunal on the factum of involvement of Jeep No. RST 4701 in the accident in question will have to be restored for reasons noted hitherto."

11. Further, the Hon'ble Supreme Court in (2023)

SCC OnLine Mad 5467 in Malaravan vs Praveen Travels

Private Limited and Others dated 18.08.2023 para No.28

and 31 observed as under:

"28. The Parliament in its wisdom has ensured that the hapless victims of motor accidents need not depend upon stakeholders in Court for the purpose of initiation of proceedings. The proceedings itself is initiated on the basis of the report filed by the Police Authorities. In effect, the petition under Section 166 is only a reminder to the Court that the police have already filed the Detailed Accident Report containing all the requisite details like the First Information Report, Interim Accident

Report, First Accident Report and therefore, it has to take up the said report as a claim petition. In other words, the claim petition is only a reminder to the Motor Accidents Claims Tribunal to perform its duty under Rule 21 Annexure XIII of Central Motor Vehicles Rules and to process the claim petition.

31. A reading of Section 166(4) shows that if any report of the accident is forwarded to it under Section 159, the same shall be treated as an application for compensation. It is no more the discretion of the police. Rule 4(A)(5)(1) of the Tamil Nadu Rules read with the Central rules make it mandatory. It has now become a statutory duty of the Police to sent a report. It is pertinent to point out that the amendment under Section 166(4) does not speak about the Interim Accident Report(IAR), First Accident Report(FAR) and Detailed Accident Report(DAR) but speaks about "any report that has been sent by the police." Therefore, even if an FIR sent by the police to the Tribunal, the same should be treated a Claim Petition."

From the above law laid down by the Hon'ble Apex

Court in the aforenoted cases, it appears that the approach

of the tribunal should be holistic analysis of the entire

pleadings and evidence by applying the principles of

preponderance of probability. Even the Hon'ble Apex Court

also observed that even if an FIR is sent by a police to the

tribunal, the same should be treated as a claim petition.

Here in the case at hand, from the documentary evidence on

record, it appears that soon after the accident an FIR was

laid, case was registered and after completion of

investigation the I.O. laid charge sheet against the driver of

the offending vehicle of the appellant and after considering

oral/documentary evidence on record Learned Tribunal below

awarded compensation in favour of the respondent

claimants. So, in view of the principles of law laid down by

the Hon'ble Supreme Court it cannot be said that no

compensation can be granted based on police investigation.

12. Learned Counsel for the appellant in course of

hearing of argument further relied upon another citation of

the Hon'ble Supreme Court of India in Rangammal vs.

Kuppuswami & Anr. dated 13.05.2011 reported in (2011)

12 SCC 220 Para 34 observed as under:

"34. It has been further held by the Supreme Court in State of J&K vs. Hindustan Forest Co. (2006) 12 SCC 198 wherein it was held that the onus is on the plaintiff to positively establish its case on the basis of the material available and it cannot rely on the weakness or absence of defence to discharge the onus."

Referring the same Learned Counsel submitted

that it was the duty of the respondent claimant-petitioners to

establish its case on the basis of material evidence but the

respondent-claimants before the Learned Tribunal could not

produce material evidence on record to substantiate the

claim. To counter this submission raised by Learned Counsel

for the appellant, Learned Counsel for the respondent-

claimants submitted that the respondent-claimants could

well prove their case before the Learned Tribunal and the

Learned Tribunal after considering all the facts and

circumstances awarded the compensation in favour of the

claimants. So, at this stage, this plea cannot be taken into

consideration. To this point, it is observed that Learned

Tribunal after considering oral/documentary evidence on

record of both the sides, concluded the trial and awarded

compensation in favour of the respondent-claimants. So, the

submission of Learned Counsel cannot be accepted.

13. Learned Counsel for the appellant further referred

another judgment of our High Court reported in (2013) 2

TLR 917 in Bani Biswas vs Juthika Bhowmik and Ors. in

para no 4 Hon'ble the High Court observed as under:

"4. Under the Law of Torts, basically, the first person who is liable is the wrongdoer. In this case, the wrongdoer is the driver and once the driver is liable, the owner becomes liable by applying the principle of vicarious liability which means that the master is liable for the negligent acts of his servant. As far as the Insurance Company is concerned, it becomes liable to pay the compensation in view of the contract of insurance entered into by it with the insured agreeing to indemnify the insured for the compensation, if any, payable by the insured. Obviously, the award can only be made once it is found that the driver was negligent. If there is no negligence, then no award under Section 166 of the Motor Vehicles Act can be passed. Once the driver is negligent, the owner becomes vicariously liable and the Insurance Company under the contract of indemnity becomes liable to pay the awarded amount."

Referring the same Learned Counsel submitted

that the respondent-claimants could not prove that the

Tribunal was negligent. So, there was no scope on the part

of the Tribunal to award any compensation but the Learned

driver in absence of cogent evidence on record awarded

compensation in favour of the respondent-claimants. It is on

record that the Learned Tribunal below considering the

oral/documentary evidence on record specifically Exhibit-3

where it was specifically mentioned that on the alleged day

the accident was occurred due to over speed rash and

negligent driving of the NBSTC Bus bearing No.W.B-63-2270

by its driver. So, there is no scope to disbelieve that part of

evidence and it cannot be said that there was no negligence

on the part of the driver on the alleged date and time at the

time of the accident.

14. Finally, Learned Counsel for the appellant

submitted that Learned Tribunal in determining the

compensation applied multiplier 14 because treating the age

of the deceased as 45 years, which Learned Tribunal wrongly

calculated and according to the Learned Counsel for the

appellant on the date of death, the age of the deceased

should be 46 years and in that case in pursuance to the

judgment of Sarla Verma(SMT) And Others vs. Delhi

Transport Corporation and Another, multiplier would be

13 not 14 and submitted before the Court to take note of

that fact and to modify the award accordingly. In this regard,

in para no 42 of dated 15.04.2009, reported in (2009) 6

SCC 121 of Sarla Verma(supra), Hon'ble the Apex Court

observed as under:

"42. We therefore hold that the multiplier to be used should be as mentioned in column (4) of the table above (prepared by applying Susamma Thomas:(1994) 2 SCC 176, Trilok Chandra:(1996) 4 SCC 362 and Charlie:(2005) 10 SCC 720, which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31

to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."

From the above, it appears that as per the

principle laid down in the aforesaid judgment the multiplier

would be 14 if the deceased was in between 41-45 years on

the date of death and multiplier would be 13 if the deceased

was in between 46-50 years on the date of death. Here in

the case, Learned Tribunal below applied multiplier treating

his age as 45 years on the date of death.

15. As per Exhibit-6 Voter ID card relied upon by the

respondent-claimants, it appears that on 01.01.2007 the age

of the deceased was 40 years, so on 01.01.2012 his age

would be 45 and the accident occurred on 27.01.2012 and

the deceased died on 31.01.2012. So, it appears that