Tripura High Court

Insurer vs Sri Nandalal Rupini on 25 January, 2024

                        HIGH COURT OF TRIPURA
                              AGARTALA
                        MAC App. No.26 of 2023

The National Insurance Company Ltd
(To be represented by Divisional Manager),
Agartala Divisional Officer, 42, Akhaura Road,
P.O.-Agartala, District-West Tripura, Pin-799001
                                                    ----Insurer Appellant(s)
                                    Versus

1. Sri Nandalal Rupini,
   S/O Sri Panchadhan Rupini
2. Smti Hema Malini Rupini
   W/O Sri Nandalal Rupini,
   Both are residents of Atuk Thang Bari, Jirania
   P.S.-Jirania, District-West Tripura
                                                 ----Claimant-respondent(s)

3. Smti Pinki Das (Deb), W/O Late Shibu Deb

4. Sri Subhajit Deb, S/O Late Shibu Deb Both are resident of Das Para, Amarpur, P.S. - Ampi, District - Gomati.

Sl.No.3 & 4 (Owners of TR-01-J-6882, Motor Cycle)

----Owner respondent(s)

For Petitioner(s) : Mr. A. K. Deb, Adv.

    For Respondent(s)       :       None.

    Date of hearing         :       11.01.2024

    Date of delivery of
    Judgment & 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 05.01.2023 passed in

connection with Case No. T.S.(MAC) 81 of 2017 by Motor

Accident Claims Tribunal (Tribunal No.2), Agartala, West Tripura

District. The appellant by the memo of appeal has prayed for

modification of the award.

2. The gist of the appeal in short, is that the

respondent claimant-petitioners have filed one claim petition

under Section 166 of M.V. Act claiming compensation of

Rs.26,40,000/- (Rupees Twenty-six lakh forty thousand only)

with 14% interest for the death of their minor son, Bisesh

Rupini who died due to a vehicular accident. The said accident

occurred on 20.04.2017 at about 10:30 hrs at Champaknagar

bazaar under Jirania PS due to rash driving of motor cycle

bearing No. TR-01-J-6882. At the time of accident, said Bisesh

Rupini was walking on foot with his grandmother at

Champaknagar bazaar and after the accident the deceased was

brought to Jirania Hospital with multiple grievous injuries on

different parts of his body and thereafter he was referred to

AGMC and GBP Hospital at Agartala and on 21.04.2017, he

succumbed to injuries. On that issue, a case bearing Jirania P.S.

case No.19/2017 under Section 279/338 of IPC & 184/187 of

the M.V. Act was registered. Further, according to the

respondent claimant-petitioners, deceased was 10 years old at

the time of his death and was a student of Class-V.

3. The OP respondents No.3 and 4 being the owners

of motorcycle bearing No.TR-01-J-6882 contested the claim by

filing their joint written statement and denied all the allegations

made in the claim petition and also contended that on the

alleged day, the offending motorcycle was insured with the

National Insurance Co. Ltd. i.e. the present appellant covering

the period of alleged incident and submitted that if any liability

arises that would be borne by the O.P. Insurance Company.

4. The present appellant as O.P No.2 being the

insurer of the motorcycle No.TR-01-J-6882 by filing written

statement denied the accident and submitted that the claim

petition was not maintainable and baseless and further

submitted that if any terms and conditions of the insurance

policy is violated then the OP No.2 i.e. the Insurance Company

shall not be liable to pay any compensation as per Section

149(2) of M.V. Act and further submitted that on the alleged

day, the offending motor bike was not involved in any accident

as such the claimants were not entitled to get any

compensation and further submitted that the claim was

excessive and exorbitant.

5. Learned Tribunal on the basis of the pleadings of

the parties framed the following issues:

I) If the death of deceased Bishesh Rupini was caused on the alleged date, time and place due to road traffic accident n the rash and negligent riding of the rider of alleged motor bike? If so are the claimant petitioners entitled to get compensation?

II) What should be amount of compensation and who shall be held liable to pay the compensation?

6. To substantiate the claim petition, the respondent

claimant-petitioner No.2 was examined herself as PW1 and

relied upon some documentary evidence which were marked as

exhibits before the Learned Tribunal:

1) Certified copy of FIR, ejahar, post mortem and final report in c.w. Jiraniai PS case No.19 of 2017 in 13 sheets-[Ext.1(i) to 1(xii)];

2) Photocopy of Adhar Card of the deceased (compared with the original)-(Exbt-2);

3) Photocopy of Adhar Card of PW1 (compared with the original)-(Exbt-3)

On the other side, the respondent O.P. owner

examined one Litan Dey as OPW-1 and relied upon some

documentary evidences:

1. Original copy of screen report in respect of vehicle bearing No.TR-01-J-6882 (Motor Bike)-Exbt.A;

2. Photocopy of policy of insurance in respect of said vehicle (compared with the original)-Exbt.B;

3. Photocopy of driving license of OPW1(compared with the original)-Exbt.C.

7. Learned Tribunal after considering the evidence on

record and also after hearing both the sides finally determined

the compensation of Rs.10,05,000/- (Rupees Ten Lakh five

thousand only) with 9% simple interest per annum from the

date of registration of the claim i.e. w.e.f. 05.05.2017 till the

date of realization with a further direction to the Insurance

Company to deposit the amount within a period of one month.

8. Challenging that award the appellant has

preferred this appeal under Section 173 of M.V. Act. It is to be

noted here that at the time of hearing Learned Counsel for the

appellant submitted that the Learned Tribunal wrongly

determined the amount of compensation and awarded

excessive and exorbitant amount, which needs to be modified.

Learned Counsel for the appellant further submitted that the

Learned Tribunal relying upon the judgment of this Court in

Akinchan Chakraborty and another v. Oriental Insurance

Co. Ltd. and anr., (Case No. MAC App. No.96 of 2013

decided on 03.06.2016) wherein the Hon'ble High Court

relied upon another decision of Hon'ble Supreme Court in

Kishan Gopal & Anr vs Lala & Ors reported in 2013, ACJ

2594, assessed the notional income of the deceased (who was

aged about 10 years and was a student) at Rs.30,000/- per

annum in place of Rs.15,000/- and applying multiplier of 15

granted compensation of Rs.4,50,000/- as pecuniary damage

and further awarded a sum of Rs.50,000/- for loss of

expectation of life and sum of Rs.5,000/- for funeral expenses

calculated amount of compensation of Rs.4,50,000/- and

thereafter added Rs.50,000/- towards loss of expectation of life

and Rs.5,000/- for funeral expenses but without application of

proper mind and in absence of any settled principle of law

further awarded Rs.5,00,000/- towards love and affection which

according to Learned Counsel for the appellant was not justified

and beyond the settled principles of law. So, Learned Counsel

urged before the Court for intervention by modifying the award.

9. As already stated none appeared on behalf of the

respondents to contest this present appeal. I have heard

argument of Learned Counsel for the appellant and also gone

through the record of the Learned Tribunal below. There is no

dispute on record in respect of accident on the alleged date and

time also in respect of death of the deceased on that date and

time. Further, there was no dispute on record that at the time

of death the deceased was aged about 10 years old and was a

school-going student.

10. Relying upon the aforesaid judgment of the High

Court and also relying upon the judgment of Kishan Gopal

(supra), Learned Tribunal below determined the notional

income of the deceased at Rs.30,000/- per annum and along

with that amount applied multiplier as 15 and calculated

compensation amounting to Rs.4,50,000/- which in my

considered view, Learned Tribunal below rightly adopted and

decided and after that Learned Tribunal below with that amount

awarded Rs.50,000/- towards loss of expectation of life and

Rs.5,000/- as funeral expenses. That amount also in my

considered view Learned Tribunal below rightly determined and

Learned Counsel for the appellant at the time of hearing also

did not submit anything regarding the aforesaid amount of

compensation awarded.

11. Now, in respect of loss of love and affection,

Learned Tribunal below awarded Rs.5,00,000/-. In this regard,

Learned Counsel for the appellant relied upon one citation of

the Hon'ble Supreme Court of India. In United India

Insurance Company Limited vs Satinder Kaur alias

Satwinder Kaur in Civil Appeal No.2705 of 2020 reported

in (2021) 11 SCC 780 wherein Hon'ble the Apex Court in para

34 and 35 has observed as under :

"34. At this stage, we consider it necessary to provide uniformity with respect to the grant of consortium, and loss of love and affection. Several Tribunals and the High Courts have been awarding compensation for both of loss of consortium and loss of love and affection. The Constitution Bench in Pranay Sethi (2017) 16 SCC 680, has recognized only three conventional heads under which compensation can be awarded viz. loss of estate, loss of consortium and funeral expenses. In Magma General (2018) 18 SCC 130, this Court gave a comprehensive interpretation to consortium to include spousal consortium, parental consortium, as well as filial consortium. Loss of love and affection is comprehended in loss of consortium.

35. The Tribunals and the High Courts are directed to award compensation for loss of consortium, which is a legitimate conventional head. There is no justification to award compensation towards loss of love and affection as a separate head."

From the aforesaid citation of the Hon'ble Apex

Court, it appears that Hon'ble Apex Court discarded to award

compensation towards love and affection as a separate head.

But here in the case at hand, the Learned Tribunal below

awarded compensation of Rs.5,00,000/- towards loss of love

and affection to the claimant-petitioners which in my considered

view Learned Tribunal below wrongly decided ignoring the

principle of law laid down by the Hon'ble Supreme Court. So,

this amount needs to be modified as awarded by the Learned

Tribunal. But at the same time, in the aforesaid judgment

Hon'ble Supreme Court in para 30, 31, 32 and 33 further

observed as under:

"30. In Magma General Insurance Co. Ltd v.

                        Nanu Ram :(2018) 18 SCC 130 this Court
                        interpreted   "consortium"    to    be    a
                        compendious    term,   which   encompasses

spousal consortium, parental consortium, as

well as filial consortium. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse.

31. Parental consortium is granted to the child upon the premature death of a parent, for loss of parental aid, protection, affection, society, discipline, guidance and training. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love and affection, and their role in the family unit.

32. Modern jurisdictions world over have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is the compensation for loss of love and affection, care and companionship of the deceased child.

33. The Motor Vehicles Act, 1988 is a beneficial legislation which has been framed with the object of providing relief to the victims, or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial Consortium. Parental Consortium is awarded to the children who lose the care and protection of their parents in motor vehicle accidents. The amount to be awarded for loss consortium will be as per the amount fixed in Pranay Sethi (2017) 16 SCC 680."

From the above principle of law laid down by the

Hon'ble Apex Court, it appears that the respondent claimant-

petitioners being the parents of the deceased are entitled to get

filial consortium. In pursuance of the judgment of National

Insurance Company Limited v. Pranay Sethi and others

reported in (2017)16 SCC 680 in para 52 wherein the Hon'ble

Apex Court decided to award loss of consortium of Rs.40,000/-

along with funeral expenses and loss of estate. So, in the

present case Filial consortium Rs.40,000/- x 2 i.e. 80,000/-

which the claimant-petitioners are entitled to get from the

appellant and the respondent claimant-petitioners are also

entitled to get Rs.15,000/- towards funeral expenses. But the

Tribunal below has awarded only Rs.5,000/-. So, an addition of

Rs.10,000/- will be added with the compensation awarded by

the Learned Tribunal, as funeral expenses.

12. So, after hearing Learned Counsel for the

appellant and also after going through the record of the Learned

Tribunal below, it appears that the respondent claimants are

entitled to get the compensation as follows:-

i) Income(30,000 x 15) : Rs.4,50,000/-

                   ii) Loss of expectation    :   Rs.   50,000/-

                   iii) Funeral Expenses      :   Rs.   15,000/-

                   iv) Filial Consortium      :   Rs.   80,000
                            (40,000 x 2)

           Total compensation to be paid :        Rs.5,95,000/-