New India Assurance Company Ltd vs Smt. Kabita Banerjee
2024 Latest Caselaw 1304 Tri

Tripura High Court

New India Assurance Company Ltd vs Smt. Kabita Banerjee on 31 July, 2024

                 HIGH COURT OF TRIPURA
                       AGARTALA
                  MAC APP. No.28 of 2024

   New India Assurance Company Ltd.,
   Agartala Division,
   4, Mantribari Road,
   P.S. West Agartala,
   District- West Tripura,
   Pin-799001.
   Represented by its Divisional Manager.
   (Insurer of vehicle bearing No.TR-03-1286, Bus and TR-
   01C-4392, Max)

                                            .......Appellant

                             Versus
1. Smt. Kabita Banerjee,
   W/O. Lt. Swapan Bandyopadhayay.

2. Smt. Sukanya Banerjee,,
   D/O. Lt. Swapan Bandyopadhayay.
   Both are resident of Mantribari Road,
   Near Post Office Chowmohani,
   Agartala, P.S. West Agartala,
   District- West Tripura,
   Pin-799001

                                 ......Respondent Claimants.

3. Smt. Mani Sarkar Malakar, W/O. Lt. Sital Malakar, Resident of Bazimara, Kathalia, P.S. Sonamura, District- Sepahijala, Pin-799131, (Owner of Max bearing No.TR-01C-4392).

4. Sri Mithu Paul @ Mithun Paul, S/O. Lt. Chira Ranjan Paul, C/O. Gobinda Barman, Resident of Dhajanagar Police Line, Near Kalimandir, P.S. R.K. Pur, District- Gomati, Tripura, Pin- 799120.

(Owner of vehicle bearing No.TR-03-1286, Bus)

........Respondents Owners

For Appellant(s) : Mr. G. S. Das, Adv, Mr. K. Deb, Adv.

For Respondent(s) : Mr. R. P. Singh, Adv, Ms. P. Sen, Adv, Mr. S. Bhattacharjee, Adv.

Date of Hearing          :     29.07.2024
Date of delivery of
Judgment and Order :           31.07.2024
Whether fit for
Reporting           :          NO


           HON‟BLE MR. JUSTICE BISWAJIT PALIT

                        Judgment & Order

This appeal is directed against the judgment and

award dated 13.10.2023 passed by Learned Motor Accident

Claims Tribunal, Court No.1, West Tripura, Agartala in

connection with case No.T.S. (MAC) 71 of 2020.

02. Heard Learned Counsel, Mr. G. S. Das along with

Learned Counsel, Mr. K. Deb for the appellant and also heard

Learned Counsel, Mr. R. P. Singh assisted by Learned

Counsel, Ms. P. Sen and Learned Counsel Mr. S.

Bhattacharjee for the claimant-respondents.

03. Before proceeding with the merit of the appeal, let

us project about the case of the claimant-petitioners before

the Tribunal. The claimant-petitioners filed one application

under Section 166 of M.V. Act before the Tribunal seeking

compensation for the death of one Swapan Bandyopadhyay

alias Swapan Banerjee who succumbed to his injury in a road

traffic accident involving the offending vehicle bearing

No.TR-01-C-4392 and Bus bearing No.TR-03-1286. The

subject matter of the claim petition was that on 26.09.2019

at about 1725 hours when the victim Swapan

Bandyopadhyay alias Swapan Banerjee along with other

passengers were proceeding from Bairagi Bazar towards

Agartala, boarding a vehicle bearing registration No.TR-01-

C-4392 (MAX) and when the vehicle reached at Chesrimai

near Sukanta Tant Shipla under Bishramganj Police Station,

that time, a Bus bearing registration No.TR-03-1286 came

from the opposite direction dashed against the MAX vehicle

bearing registration No.TR-01-C-4392. As a result, all the

passengers of MAX vehicle, including Swapan Bandypadhyay

alias Swapan Banerjee sustained grievous injuries on their

persons. Soon after the accident, the victim Swapan

Bandypadhyay alias Swapan Banerjee was shifted to

Bishramganj PHC wherein the attending doctor declared him

dead due to said road traffic accident and after that post-

mortem examination was done over the dead body in the

said hospital on 27.09.2019 and according to the claimant-

petitioners, the accident took place due to rash, negligent

and careless driving of both the offending vehicles bearing

registration No.TR-01-C-4392 (MAX) and TR-03-1286 (BUS)

and on that issue a police case was registered vide

Bishramganj P.S. case No.48 of 2019 under Sections

279/338/304 (Part-II) of I.P.C. and Sections 177/184 of M.V.

Act. It was further submitted that at the time of accident, the

deceased Swapan Bandypadhyay alias Swapan Banerjee was

a Post-Graduate Teacher serving at Rangamatia South H.S.

School under Education Department having a monthly salary

of Rs.82,575/- and was 54 years old at that time and finally,

the claimant-petitioners claimed compensation to the tune of

Rs.1,18,99,900/- in total.

04. The O.P. No.1 contested the same by filing written

objection denying the assertions of the claimant-petitioners

and submitted that the claim-petition is subjected to strict

proof by the petitioner.

It was further submitted that on that relevant

date and time of accident, the husband of O.P. No.1 was the

registered owner of the said vehicle and out of the said

accident her husband also died being the driver of the said

vehicle at that time and as such being the wife of the

registered owner, she filed the written objection. It was

further submitted that at the time of accident, the vehicle

bearing registration No.TR-01-C-4392 (MAX) was duly

insured with the New India Assurance Company Limited

covering the period of Insurance with effect from 24.04.2019

to 23.04.2020 and at the time of accident, her husband had

valid driving licence.

The O.P. No.2 also contested the case by filing

written objection denying the assertions of the claimant-

petitioner. It was submitted that there was no negligence on

the part of the driver of the bus, bearing registration No.TR-

03-1286 (BUS) and the said O.P. further took the plea that

on the date of accident, one Dipali Paul was the registered

owner of the said Bus who also died on 04.04.2021. It was

further submitted that at the time of accident, Subrata Das,

the driver of the vehicle had valid driving licence and the bus

bearing registration No.TR-03-1286 was duly insured with

the New India Assurance Company Limited covering the

period from 11.01.2019 to 10.01.2020 and if any

compensation is awarded, that should be borne by the

insurer of the vehicle.

The O.P. No.3, New India Assurance Company

Limited denied the assertions of the claimant-petitioners and

further submitted that the deceased died due to injuries

caused by motor accident but denied the rash and negligent

driving by drivers of both the vehicles bearing Nos.TR-01-C-

4392 (MAX) and TR-03-1286 (BUS) and further submitted

that the claim petition is subjected to strict proof.

05. Upon the pleadings of the parties, following issues

were framed:

"(1) Is the claim application filed U/S.166 of M.V. Act maintainable in its present form and nature ?

(2) Had Swapan Bandyopadhyay alias Swapan Banerjee, the husband of claimant petitioner No.1 and father of claimant petitioner no.2, died out of a road traffic accident occurred on 26 th September, 2019 at about 1725 hours at Chesrimai near Sukanta Tant Shilpa under Bisramganj Police Station ?

(3) Was the accident occurred due to rash and negligent driving of the vehicles bearing registration Nos.TR-01-C-4392 (MAX) and TR- 03-1286 (Bus) ?

(4) Are the claimant petitioners entitled to get compensation as claimed for and if yes, then to what extent and who shall be liable to pay such compensation ?

(5) What are the other relief/reliefs the parties to this case entitled to get ?"

06. To substantiate the case, the claimant-petitioner

examined herself as PW1 and certain documents were relied

upon her which was marked as Exhibit-1 to Exhibit-7. The

O.P. No.1 was examined herself as OPW1 and proved certain

documents into evidence which were marked as Exhibit-A to

Exhibit-C and the O.P. No.2 examined himself as OPW2 and

proved certain documents which were marked as Exhibit D to

Exhibit G and finally, on conclusion of proceeding, Learned

Tribunal below allowed the claim-petition filed by the

claimant-petitioners.

07. For the sake of convenience, I would like to refer

herein below the operative portion of the judgment/award of

the Learned Tribunal below which runs as follows:

"It is, therefore, held that the claimant petitioners are entitled to get compensation of Rs.82,54,136/- (Rupees Eightytwo Lakh Fiftyfour Thousand One Hundred Thirtysix only) with interest @ 9% per annum with effect from 26.05.2020 i.e. the date of filing of the claim petition till the date of actual payment as per Judgment of the Hon‟ble Supreme Court of India passed on 17.10.2022 in CA No.7593 of 2022. The Opposite Party No.3, The New India Assurance Company Ltd., will pay the entire amount of compensation with interest within 30 days from today in terms of Section 168(3) of M.V. Act, 1988 as both the vehicles were duly insured with their Insurance Company i.e. the Opposite Party No.3 at the time of alleged accident.

Out of the awarded amount of compensation inclusive of interest, the claimant petitioner no.1 will get 60% and the claimant petitioner no.2 will get 40%. Out of the respective share of claimant petitioners no.1 and 2, 50% each of their respective share shall be kept in fixed deposit scheme in their respective name in any Nationalized Bank of their locality for a period of five years each and the remaining 50% of their respective share shall be paid to them through their respective bank account. The claimant petitioners no.1 and 2 shall however be at liberty to withdraw monthly interest from their fixed deposit to meet their day to day expenses. No loan or premature withdrawal shall be permitted from/ against any of the fixed deposit certificates without prior permission of this Tribunal.

Supply copy of this award free of cost to the parties.

The claim petition stands disposed of on contest."

08. Challenging that judgment/award, the present

appellant has preferred this appeal. At the time of hearing of

argument, Learned Counsel for the appellant submitted

before the Tribunal that the appellant has preferred this

appeal only on two grounds. First of all, according to him,

the Tribunal below determined the rate of interest at the rate

of 9% per annum which was too high considering the

prevailing situation and further submitted that the Learned

Tribunal below also awarded interest on future prospects

which is also not permissible in the eye of law. So, Learned

Counsel for the appellant urged for reducing the rate of

interest imposed by the Learned Tribunal below and also to

deduct the rate of interest on future prospects, awarded by

the Tribunal below.

09. On the other hand, Learned Counsel for the

respondent-claimants submitted that the Learned Tribunal

below after appreciating the evidence on record, rightly and

reasonably delivered the judgment/award. According to him,

there are series of judgments of the Hon'ble Apex Court

wherein the rate of interest is imposed upon the

compensation at the rate of 9% per annum and similarly, in

respect of future prospects, Learned Counsel further

submitted that the Hon'ble Apex Court also in series of

judgments awarded interest on the income of future

prospects. So, there was no infirmity and perversity in the

judgment of the Learned Tribunal below and urged for

dismissal of this appeal with costs.

10. I have heard detailed arguments of both the

sides. At the time of hearing of argument, Learned Counsel

for the appellant relied upon one judgment of the Hon'ble

Gauhati High Court in The Oriental Insurance Co LTD vs.

Smti Champabati Ray and Ors. dated 01.10.2019

reported in (2020) 6 GLR 521 wherein in para No.25,

Hon'ble the Gauhati High Court observed as under:

"25. The appellant is accordingly directed to deposit the above compensation amount of Rs.37,66,300/-, before the learned Tribunal, minus the amount already deposited and paid by the appellant. The total compensation amount indicated above, minus the future prospects, will carry interest @ 6% per annum from the date of filing the claim petition, i.e., 1.9.2014 till final payment. It is also directed that out of the awarded amount, Rs. 10 lakhs shall be kept in a fixed deposit in the name of the mother of the deceased for 3 years. Consequently, the impugned Judgment dated 30.08.2016 passed by the MACT No. 1, Kamrup, Metro in MAC Case No. 1446/2014 is hereby modified to the extent indicated above. Appeal is accordingly disposed of.

Send back the LCR."

Referring the same, Learned Counsel for the

appellant has drawn the attention of this Court in the said

judgment of Hon'ble the Gauhati High Court has determined

the rate of interest at the rate of 6% per annum on

compensation.

11. Similarly, Learned Counsel for the appellant relied

upon another citation of the Hon'ble Jammu & Kashmir and

Ladakh High Court in National Insurance Company

Limited vs. Mst. Aisha Bano & Ors. dated 14.07.2023

reported in (2023) SCC OnLine J & K 350 wherein the

Hon'ble Jammu & Kashmir and Ladakh High Court in para

Nos.12 and 13 observed as under:

"12. The third and last contention raised by the learned Counsel for the Appellant is that the portion of compensation granted under the head of loss of future prospects should not have been subjected to payment of any interest thereon. This argument of the learned Counsel carries force due to the fact that future prospects are relatable to an income to be received in the future and, as such, there could not be any loss to the claimants for the payment of future prospects at the time the deceased met with the accident. The reason for awarding interest on the compensation amount, minus the future prospects, is due to the fact that, though the loss of dependency starts from the date of the accident, the compensation amount is computed on the date of award of the Tribunal, interest is awarded to compensate the loss of money value on account of lapse of time, such as the time taken for the legal proceedings and for the denial of right to utilize the money when due. However, future prospects are with regard to probable income to be received in the future and, as such, there is no requirement to compensate the claimant by way of future interest for the loss that is to occur in the future, as the future is yet to happen. Further, future prospects are given for the entire future and, as such, the

claimant is getting compensation in a lumpsum under future prospects prior to the occurrence of future event(s). Thus, with regard to future prospects, this Court is of the view that there cannot be any interest on future prospects, as the same relates to an income to be given in the future. The same view has been taken by the Gauhati High Court in cases reported as „2018 Supreme (Gau) 966‟; and „2019 Supreme (Gau) 507‟, therefore, the contention of the learned Counsel for the Appellant is accepted that the component of compensation under the head of loss of future prospects is not to be subjected to interest.

13. Having regard to the above discussion and for the reasons stated hereinabove, the instant appeal is partly allowed and the impugned award is modified as follows:

S. Head under which Compensation Compensation compensation granted by the modified (Rs.) No. granted Tribunal (Rs.)

01. Loss of 16,32,000/- 16,32,000/-

Dependency/Income

02. Loss of Future 6,52,800/- 6,52,800/-

prospects

03. Loss of Estate 50,000/- 25,000/-

04. Funeral Expenses 50,000/- 25,000/-

Total Rs. 23,84,800/- Rs. 23,34,800/-

Referring the same, Learned Counsel for the

appellant has further drawn the attention of this Court. From

the said judgment, it appears that the Hon'ble High Court at

the time of determination of compensation awarded interest

at the rate of 6% per annum and also no interest was

imposed upon future prospects. So, finally, Learned Counsel

for the appellant urged for taking consideration of the

aforesaid citations in delivering the judgment of this Court.

12. On the other hand, Learned Counsel for the

claimant-respondents at the time of hearing referred few

citations:

i) Dhondubai vs. Hanmantappa Bandappa Gandigude

since deceased through his LRS. & ORS in Civil Appeal

Nos.5459-5460 of 2023 dated 28.08.2023.

ii) In Mohd. Sabeer @ Shabir Hussain vs. Regional

Manager, U.P. State Road Transport Corporation dated

09.12.2022 reported in (2022) SCC OnLine SC 1701

wherein in para Nos.30 & 31 Hon'ble the Apex Court

observed as under:

"30. On the basis of the abovementioned facts and analysis, this Court is of the opinion that the just compensation to be awarded to the claimant/appellant under different heads ought to be as under:-

Cost Of Artificial limb and its Maintenance Rs. 12,80,000/-

Loss Of Earning Capacity due to Rs. 11,34,000/-

       Functional Disability

       Future Prospects                               Rs. 7,61,668/-

       Medical Expenses                               Rs. 57,650/-

       Attendant Charges                              Rs. 11,802/-

       Conveyance                                     Rs. 10,000/-

       Special Diet                                   Rs. 15,000/-

       Pain and Suffering                             Rs. 2,00,000/-

       Loss of Amenities of Life                      Rs. 2,00,000/-

Loss due to Disability and Disfigurement Rs. 2,00,000/-

Total Rs. 38,70,120/-

31. In view of the aforesaid facts and circumstances, the impugned judgment is

liable to be modified as above and the claimant/appellant is held entitled to be awarded compensation to the tune of Rs.38,70,120/- along with 9% interest per annum from the date of making the application."

ii) Again in Smt. Anjali & Ors. vs. Lokendra Rathod &

Ors. dated 06.12.2022 reported in (2022) SCC OnLine SC

1683, wherein in para Nos.20 and 21 Hon'ble the Apex

Court observed as under:

"20. In light of the above mentioned discussion, the Appellants are entitled to the following amounts:

         Sl. No.                Head                  Compensation
                                                        Awarded

         1.        Income                        Rs. 9,855/- per month

         2.        Future Prospects              Rs. 3,942/- (i.e. 40%
                                                 of the income)

         3.        Deduction       Towards       Rs.2,300/- (i.e. 1/6th
                   personal expenses             of Rs.9,855+Rs.3,942)

         4.        Total Annual Income           Rs.1,37,964/-   [(i.e.
                                                 5/6th of Rs.9,855 +
                                                 Rs.3,942) x 12]



         6.        Loss of Dependency            Rs.23,45,388/-    (i.e.
                                                 Rs.1,37,964 x 17)

         7.        Funeral Expenses              Rs.50,000/-

         8.        Loss of Estate                Rs.20,000/-

         9.        Loss     of         Spousal   Rs.44,000/-
                   Consortium

         10.       Loss       of   Parental      Rs.44,000/- each
                   Consortium to each of the
                   three children

         11.       Total Compensation to be      Rs.25,91,388/-
                   paid

21. Thus the total compensation payable to the Appellants is Rs.25,91,388/- with interest at 9% per annum from the date of filing of the application till the date of payment of the compensation to the Appellants."

13. Referring the same, Learned Counsel for the

claimant-respondents submitted that the Hon'ble Apex Court

also in the aforesaid cases have been pleased to consider the

rate of interest at the rate of 9% per annum on

compensation and also awarded interest on future prospects.

So, Learned Counsel urged for dismissal of this appeal in

view of the principles of law laid down by the Hon'ble Apex

Court.

14. I have perused the citations referred by the

Learned Counsel of the parties and also perused the records

of the Learned Tribunal below and heard argument of both

the sides. In course of hearing of argument, Learned Counsel

for the appellant urged for reducing the rate of interest from

9% to 7.5% and submitted that if the rate of interest is

considered, in that case it would be convenient for the

appellant-Insurance Company to pay the amount of

compensation at an earliest convenience to the claimant-

petitioners.

15. In the case at hand, the Learned Tribunal below

determined the amount of compensation to the tune of

Rs.82,54,136/- along with 9% interest from the date of filing

the claim petition till realization. But on perusal of the

judgment, it appears that the Learned Tribunal below did not

give any clear observation as to why the rate of interest was

fixed at the rate of 9% per annum.

16. So, considering the facts and circumstance of this

case and also after considering the submission of Learned

Counsel for the appellant, it appears that if the rate of

interest is reduced to 8% from 9%, then the purpose of

justice would suffice and the appellant would not be

prejudiced. But regarding interest on future prospects, in

view of the law laid down by the Hon'ble Apex Court, this

Court does not find any suitable ground to interfere with the

award to that extent.

17. In the result, the appeal filed by the appellant

against the judgment and award dated 13.10.2023 passed

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

Tripura, Agartala in connection with case No.T.S. (MAC) 71

of 2020 is partly allowed. The claimant petitioners are

entitled to get compensation of Rs.82,54,136/- (Eightly two

lakh fifty four thousand one hundred and thirty six only) with

interest at the rate of 8% per annum in place of 9% per

annum with effect from 26.05.2020 i.e. the date of filing the

claim petition to till the date of actual payment. The

appellant-Insurance Company be asked to deposit the

amount as stated above to the Tribunal below within a period

of eight weeks from the date of receipt of the copy of the

judgment. No interference is made with regard to disbursal

of amount of compensation to the respondent-claimant-

petitioners made by the Tribunal. With this observation, the

appeal is partly allowed to the extent as stated above.

A copy of this judgment be furnished free of cost

to Learned Counsel of both the parties i.e. to the Counsel of

the appellant and also to the Counsel of the claimant-

respondents at an earliest.

Send down the LCRs along with copy of the

judgment.

Pending application(s), if any, also stands

disposed of.

JUDGE

MOUMITA Digitally signed by MOUMITA DATTA DATTA Date: 2024.08.01 17:40:10 +05'30'

Purnita