Tripura High Court
Insurer vs Sri Supriya Podder on 25 January, 2024
HIGH COURT OF TRIPURA
AGARTALA
MAC APP No.10 of 2023
The National Insurance Company Limited,
(to be represented by Senior Divisional Manager),
Agartala Divisional Office, 42, Akhaura Road,
P.O. Agartala, District: West Tripura,
PIN: 799 001
----Insurer-Appellant (s)
Versus
1. Sri Supriya Podder,
Son of late Santi Bhusan Podder
2. Smt. Suchitra Podder (Saha) @ Sucharita Podder,
D/O. Late Santi Bhusan Podder,
both are residents of Raghunathpur,
P.S. Bishalgarh, District: Sepahijala
3. Billal Hossain,
Son of Rahim Miah,
Resident of Charilam, Uttarmura,
P.S. Bishalgarh, District: Sipahijala,
P.S. East Agartala, P.O. Agartala,
Owner of Bike No.TR-01-Q-5148
---- O.P. Owner-Respondents (s)
For Appellant(s) : Mr. A. K. Deb, Adv.
For Respondent(s) : None
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
This appeal under Section 173 of M.V. Act is filed by
the appellant, the National Insurance Company Limited
which was arrayed at respondent No.2 in the claim case,
challenged the judgment and award dated 02.11.2022
passed by the Learned Single Member, Motor Accident
Claims Tribunal, West Tripura, Agartala (Tribunal No.4) in
connection with Case No. T.S.(MAC) 26 of 2018.
02. The facts of the case in short is that on
18.09.2014 at about 1715 hours the victim Santi Bhusan
Podder (since dead) was proceeding from his house riding
his bicycle and while he reached at Karaimura pucca road at
Bishalgarh, a motor bike bearing No.TR-01-Q-5148 coming
from Karaimura side with high speed in rash and negligent
manner dashed the victim. As a result of which he fell down
on the road and sustained multiple grievous injuries on his
person. Immediately the victim was taken to Bishalgarh
Hospital by the local people wherein on the same day at
about 1800 hours he succumbed to his injuries. After his
death the claimant-respondents being the son and daughter
of the deceased filed the suit seeking compensation for an
amount of Rs.16,80,000/-. It was the further case of the
respondent-petitioners that initially the claim petition was
filed by their mother. But later on, due to her death the
respondent-petitioners were substituted as claimants.
Further, it was asserted that the accident occurred due to
reckless driving of the rider of the offending motor bike and
the deceased was at the age of 64 at the time of accident
and being a pensioner as well as businessman he used to
earn Rs.12,000/- per month.
03. The owner respondent No.3 as OP No.1
contested the suit by filing written statement and denied all
the assertions leveled against him that he was the owner of
the offending bike rather it was his further defence that at
the time of accident the motor bike was driven by one
Araber Rahaman having valid driving licence and the vehicle
was insured with the present appellant, the respondent
No.2, the National Insurance Company Limited. So the
owner of the vehicle urged for fixing the liability of
compensation to the insurer if awarded. The appellant as OP
No.2 in the written statement denied all the assertions
made in the claim petition and submitted that the parties
are to proof their respective claims. But the insurance
company did not deny the fact of insurance of the vehicle
covering the risk on the date of accident.
04. Considering the pleadings of the parties, the
Tribunal framed the following issues:
(i) Is the claim application filed by Smt. Sandhya Rani
Podder under Section 166 of M.V. Act maintainable in its
present form and nature?
(ii) Had the husband of the claimant petition namely, Late
Santi Bhusan Podder suffered death out of a road traffic
accident alleged to have been occurred on 18th
September, 2014 at Raghunathpur on Bishalgarh-
Karaimura Road at about 5.15 p.m. under the territorial
jurisdiction of Bishalgarh Police Station?
(iii) Was the accident occurred due to rash and negligent
riding of a motor cycle bearing registration No.TR-01-Q-
5148 by its rider?
(iv) Are claimant petitioners entitled to get compensation as
prayed for? If yes, then to what extent and who shall be
held liable to pay the compensation money?
05. To substantiate the claim the respondent-
petitioner No.2, Smt. Suchitra Podder has examined herself
as PW-1 and also relied upon some documentary evidences
which were marked as Exhibits as under:
(i) certified copies of FIR, ejahar, seizure list and final
report- Exbt.1;
(ii) P.M. Report - Exbt.2.
The owner of the offending vehicle the motor
bike has examined himself as OPW-1 and relied upon the
following documents as Exhibits:
(i) copy of driving licence of Araber Rahaman- Exbt. A;
(ii) copy of registration certificate of vehicle bearing
No.TR-01-Q-5148- Exbt.B;
(iii) copy of insurance certificate - Exbt.C.
But the insurance company i.e. the present appellant
adduced no oral/documentary evidence.
06. Considering the material evidence on record, the
Tribunal taking into account the monthly income of the
deceased @ Rs.10,000/- and determined the compensation
in total of Rs.7,46,972/- and directed the insurance
company to make payment of the compensation with 9%
interest from the date of registration of the claim i.e. with
effect from 20.02.2018 to till the date of realization.
07. The appellant insurance company being
aggrieved and dissatisfied with the judgment and award
passed by the Tribunal filed the present appeal on different
grounds. Heard Learned counsel Mr. A. K. Deb for the
appellant. But none appeared on behalf of the respondents
inspite of receipt of the notice.
08. Learned counsel Mr. Deb appearing for the
appellant, insurance company in course of hearing assailed
the judgment and award passed by the Tribunal on the
grounds that the Tribunal in deciding the issue No.4 decided
that as per claim petition supported by the oral evidence of
the claimant-petitioner the deceased was a pensioner as
well as the businessman having monthly income of
Rs.12,000/-. But in this regard no documentary evidence
was produced and proved by the claimants. But just on the
basis of oral testimony of witness the Tribunal determined
the monthly income of the deceased @ Rs.10,000/- per
month at the time of his death and thereafter the Tribunal
determined to add 10% addition in his income of the last
age group i.e 50-60 years which according to Learned
counsel was beyond the principle of law laid down by the
Hon'ble Supreme Court in Oriental Insurance Company
Limited vs. Meena Variyal & Others reported in AIR
2007 SC 1609 in para-9 as under:
"9. * * *Secondly, the deceased was employed in a
limited company. It was necessary for the claimants to
establish what was the monthly income and what was the
dependency on the basis of which the compensation
could be adjudged as payable. Should not any Tribunal
trained in law ask the claimants to produce evidence in
support of the monthly salary or income earned by the
deceased from his employer Company? Is there anything
in the Motor Vehicles Act which stands in the way of the
Tribunal asking for the best evidence, acceptable
evidence? We think not. Here again, the position that
the Motor Vehicles Act vis-a-vis claim for compensation
arising out of an accident is a beneficent piece of
legislation, cannot lead a Tribunal trained in law to forget
all basic principles of establishing liability and
establishing the quantum of compensation payable. The
Tribunal, in this case, has chosen to merely go by the oral
evidence of the widow when without any difficulty the
claimants could have got the employer-company to
produce the relevant documents to show the income that
was being derived by the deceased from his employment.
Of course, in this case, the above two aspects become
relevant only if we find the insurance company liable. If
we find that only the owner of the vehicle, the employer
of the deceased was liable, there will be no occasion to
further consider these aspects since the owner has
acquiesced in the award passed by the Tribunal against
it."
09. It was further asserted that from the cross-
examination of PW-1 Smt. Suchitra Podder it appears that
she did not submit any document showing that her father
was a pensioner or he had any other source of income and
the claimants also could have examined the employer of the
authority of any company or department from which
company/department her father was superannuated. So
according to the appellant in absence of any cogent
documentary evidence on record the deceased would be
treated as non-income group and monthly income should be
assessed to Rs.6,000/- only and furthermore since the
deceased was 65 years of age as determined by the
Tribunal. So in view of the judgment of the Pranay Sethi
(supra) in paragraph No.61 point No.4, no future prospect
can be granted in favour of the deceased as he was 65
years old but the Learned Tribunal at the time of calculation
ignored the principle of the said judgment and added 10%
about his future prospect along with the monthly income of
the deceased @Rs.10,000/-.
10. Learned counsel for the appellant further
submitted that the Learned Tribunal awarded consortium @
Rs.40,000/- to the respondent-claimants misinterpreting the
principles of law as laid down by the Hon'ble Supreme Court
in Magma General Insurance Co. Ltd. Vs. Nanu Ram
Alias Chuhru Ram & Ors. reported in 2018 SCC online
SC 1546 wherein Hon'ble the Supreme Court observed and
declared three types of consortium i.e. spousal, parental
and filial consortium. But in the present case the
respondent-claimants No.1 & 2 being the daughter and son
of the deceased had only a right to get parental consortium.
But since they have become major, so they are not entitled
to get the parental consortium also in view of the principles
of law as laid down in Three Judges Bench in New India
Assurance Company Limited vs. Somwati And Others
reported in (2020) 9 SCC 644 in Civil Appeal No.3093
of 2020 following the principles as laid down in Magma
General Insurance Co. Ltd. (supra) in para No.37.
11. It was further asserted by the Learned counsel of
the appellant that during cross-examination of claimant-
respondent No.2 as PW-1 she specifically stated that she is
married and not dependent on the income of her
father(deceased) and her brother, the respondent No.1 is
an employee of Power Grid at Bhuvaneswar for the last five
years. So the respondent claimant No.1 being major and
employed cannot be treated as dependent on the income of
his father. Similarly, the respondent-claimant No.2 being
major and married daughter also not dependent on her
father is not entitled to get any consortium. But the Learned
Tribunal ignoring the principles of law laid down granted
consortium of Rs.80,000/- in favour of the respondent-
claimants.
12. Learned counsel in course of hearing further
submitted that the Learned Tribunal at the time of
determination of award awarded interest @ Rs.9% p.a.
whereas the Hon'ble Apex Court in different cases held that
the rate of interest should be the prevailing rate of interest
of National Bank since the Reserve Bank of India has
reduced the rate of simple interest and presently the rate of
fixed deposit and simple interest in all National Banks are @
Rs.5.3% and 3.5% respectively. So Learned counsel
submitted that the rate of interest should be @ 6% instead
of 9%.
13. It is already stated that inspite of receipt of
notice the respondent-claimants did not contest this appeal.
I have heard the arguments of Learned counsel for the
appellant at length and gone through the award of the
Learned Tribunal. In the claim petition the respondent-
claimants have asserted that at the time of accident the
deceased was a pensioner and as well as businessman and
they claimed the monthly income of the deceased @
Rs.12,000/- per month. However, the Tribunal at the time
of determination of compensation determined the amount of
monthly income @Rs.10,000/- per month in absence of any
documentary evidence on record. In this regard I have gone
through the citation referred in Oriental Insurance
Company Limited vs. Meena Variyal & Others (supra).
14. The respondent-claimant No.1 Smt. Suchitra
Podder in her examination-in-chief stated that the monthly
income of her deceased father was Rs.12,000/- per month
and he was a pensioner and doing business at the time of
death. But in this regard no documentary evidence is
proved. During cross-examination she also admitted that
she has not submitted any documentary evidence in support
of the income of her deceased father. She also stated that
she was given marriage about 16 years back and she was
never dependent on the income of her father after marriage
and her brother is an employee of Power Grid serving at
Bhubaneswar for last five years. But the Learned court
below ignored these facts and determined the amount of
monthly income of the deceased @ Rs.10,000/- per month
which in my considered view was not proper. So in view of
the principle of the aforesaid judgment and considering the
facts and circumstances of the case in my considered view
the monthly income of the deceased should be Rs.8,000/-
at the time of his death in absence of any cogent
oral/documentary evidence on record by the claimants.
15. In course of hearing Learned counsel Mr. A. Deb
also submitted that the Tribunal at the time of
determination of compensation added 10% as future
prospect but in view of the judgment of the Hon'ble
Supreme Court in Pranay Sethi (supra) in para-59.4,
Hon'ble the Supreme Court observed as under:
"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."
16. Further in United India Insurance Co. Ltd. Vs.
Satinder Kaur @ Satwinder Kaur & Ors. in Civil Appeal
No.2705 of 2020 arising out of SLP (Civil) No.28548
of 2014 Hon'ble the Supreme Court in para-58 further
observed that:
"59. The controversy does not end here. The question still
remains whether there should be no addition where the
age of the deceased is more than 50 years. Sarla
Verma:[(2009) 6 SCC 121] thinks it appropriate not to
add any amount and the same has been approved in
Reshma Kumari: [(2013) 9 SCC 65]. Judicial notice can be
taken of the fact that salary does not remain the same.
When a person is in a permanent job, there is always an
enhancement due to one reason or the other. To lay down
as a thumb Rule that there will be no addition after 50
years will be an unacceptable concept. We are disposed
to think, there should be an addition of 15% if the
deceased is between the age of 50 to 60 years and there
should be no addition thereafter. Similarly, in case of
self-employed or person on fixed salary, the addition
should be 10% between the age of 50 to 60 years. The
aforesaid yardstick has been fixed so that there can be
consistency in the approach by the tribunals and the
courts."
Referring the same Learned counsel for the
appellant submitted that the Tribunal ignoring the principles
of law laid down by the Apex court at the time of
determination of compensation added 10% as future
prospect and added that amount with the monthly income in
determination of monthly income of the deceased.
17. I have gone through the said citations and it
appears that Learned Tribunal did not consider the
principles of law laid down by the Hon'ble Apex Court in the
aforesaid case and decided to add 10% as future prospects
with the monthly income which in my considered view
Learned Tribunal committed error. Since the age of the
deceased at the time of his death was 65 years. So the
respondent-claimants are not entitled to get the said 10%
as future prospects as determined by the Learned Tribunal
below.
18. Learned counsel in course of hearing referring
'loss of consortium' relied upon another citation of Satinder
Kaur @ Satwinder Kaur (supra) in paras-30, 31, 32, 33,
34 and 35 Hon'ble the Supreme Court further observed as
under:
"30. In Magma General Insurance Co. Ltd. v. Nanu Ram &
Ors.,12 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].
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 High
Courts have been awarding compensation for both loss of
consortium and loss of love and affection. The
Constitution Bench in Pranay Sethi (supra), 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 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."
Referring the said citation Learned counsel for
the appellant submitted that since the respondent-claimants
are major and respondent-claimant No.1 is married and
stated that she was not the dependent on the income of her
deceased father and respondent No.2 is a service holder. So
according to the Learned counsel they are not entitled to
get any parental consortium. But the Learned Tribunal in
determining the amount of compensation awarded parental
consortium @ Rs.40,000/- per head. Thus assessed
Rs.80,000/- as 'consortium'.
19. I have also gone through the said citation and I
stand agree with the submission made by the Learned
counsel for the appellant and from the evidence on record of
the respondent-claimant No.1 as PW.1 it appears that she
specifically stated that her marriage took place about 16
years back and she was living with her husband and she
was never dependent on the income of her deceased father
and her brother was also serving in Power Grid company
since last five years. Taking into consideration the evidence
on record further it appears that Learned Tribunal also
committed error in determining the amount of
compensation in granting parental consortium at
Rs.80,000/- which the respondent-claimants are not entitled
in view of the principles of law laid down by the Hon'ble
Supreme Court in the aforesaid judgment and as such this
amount of Rs.80,000/- be deducted from the total amount
of compensation as awarded by the Learned Tribunal.
20. Lastly Learned counsel for the appellant
submitted that the Tribunal in deciding the amount of
compensation awarded interest @ Rs.9% per annum from
the date of filing the claim petition till realization but the
Hon'ble Supreme Court of India in Subulaxmi vs. M.D. T.
Nadu State Transport Corporation & Ors. in Civil
Appeal No.7750 of 2012 in para No.13 and 15 Hon'ble
the Supreme Court observed as under:
"13. In Abati Bezbaruah v. Dy. Director General,
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. A.R. Laxmanan, J. in his
concurring opinion stated as follows:
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.
15.Thus analysed, we are disposed to think that the High
Court has erred in not granting interest on the enhanced
sum. As is evincible, the Tribunal had granted payment of
interest at the rate of 9% per annum. Considering the
totality of facts and circumstances, we find that the
interest awarded by the tribunal is just and proper and
accordingly we direct that the interest on the differential
enhanced sum shall carry interest at the rate 9% per
annum from the date of filing of the claim petition till the
date of deposit of the same before the tribunal. The
respondent corporation is directed to deposit the
differential amount before the tribunal within a period of
eight weeks from today."
Referring the same Learned counsel submitted
that the rate of interest should be 6% considering the
prevailing rate of interest as decided by the Reserve Bank of
India. But the Learned Tribunal awarded interest @ 9% p.a.
It is observed that Hon'ble the Apex Court also in the
aforenoted case determined the rate of interest @ 9% p.a.
and in similar other cases Hon'ble the Apex Court and our
parent High Court also allowed interest @ 9% per annum in
determining the award. So the submission of Learned
counsel in this regard cannot be accepted and in my
considered view Learned Tribunal has rightly awarded
interest in the given case @ Rs.9% p.a.
21. So after hearing Learned counsel for the
appellant and also after going through the record of the
Learned Tribunal below including the evidence on record it
appears to me that Learned Tribunal at the time of
determination of compensation has overlooked some of the
principles of law laid down by the Hon'ble Apex Court in
different cases and calculated compensation in higher side
which needs to be reduced for the sake of justice.
22. In view of the discussions made above the
compensation is recalculated thus:
The deceased was aged about 65 years at the time of
accident. Learned Tribunal has assessed his monthly
income to be Rs.10,000/- per month. Considering the
facts of the case, it appears that Rs.8000/- per month
would be reasonable to be determined as monthly
income of the deceased. From that amount 1/3rd be
deducted as personal and living expenses of the
deceased which comes to Rs.8,000 - Rs.2,667/-
=Rs.5,333/-. The deceased was aged about 65 years
at the time of death and as per the schedule the
appropriate multiplier would be 7 and, thus, the
compensation comes to Rs.5,333/- x 12 x 7 =
Rs.4,47,972/-. In addition thereto, the claimants are
also entitled to Rs.15,000/- as Funeral expenses,
Rs.30,000/- for loss of consortium and Rs.15,000/- for
loss of estate. The aforesaid amount of Rs.60,000/-
awarded under the conventional heads should be
enhanced at the rate of 10% in every three years in
pursuance of the judgment of Pranay Sethi (supra).
Thus, the total compensation comes to Rs.4,47,972/-
+ Rs.60,000+ 10% of Rs.60,000+Transportation cost
Rs.10,000/- (as awarded by the Tribunal).
Accordingly, the total compensation comes to
Rs.5,23,972/-.
Thus the appellant insurance company is liable to
make payment of compensation amounting to Rs.5,23,972/-
with 9% p.a. from the date of the filing of the claim petition
w.e.f 20.02.2018 till the realization of the amount to the
claimants. The appellant is to deposit the aforesaid
compensation before the Tribunal within a period of one
month from the date of passing of the judgment. The
disbursal of the compensation amount be made in
pursuance of the order passed by the Tribunal at the time of
delivery of judgment/award on 02.11.2022. A copy of this
order be supplied to the Learned counsel for the appellant
for immediate compliance.
23. In the result, the appeal is partly allowed with
the aforesaid observation and accordingly stands disposed
of. Pending application, if any, also stands disposed of.
Send down the LCRs forthwith along with a copy
of this judgment.
MOUMITA Digitally signed by
MOUMITA DATTA JUDGE
DATTA Date: 2024.01.29
04:48:41 -08'00'
Moumita
