Tripura High Court
Sri Sohag Majumder vs Sri. Sanjoy Kumar Agarwala on 20 June, 2024
HIGH COURT OF TRIPURA
AGARTALA
MAC App No.14 of 2023
Sri Sohag Majumder
S/O Sri Himangshu Majumder @ Hemangshu
Resident of Pratapgarh
Surendra Palli, P.S. East Agartala
District- West Tripura
......Appellant
Versus
1. Sri. Sanjoy Kumar Agarwala,
S/O Hanuman Das Agarwala
Resident of M.G. Road, Jaigaon B.O. Jalpaiguri,
District-Jalpaiguri, West Bengal,
Pin-736182
(Owner of white colour Fort bearing No. WB-74-AG-8282)
2. Cholamandalam M.S. General Insurance Company
Ltd.
2nd Floor, Dare House, 2 NSC Bose Road,
Chennai- 600001
(Insurer of white colour Fort bearing No. WB-74-AG-8282)
.......Respondents
For Appellant(s) : Mr. Alik Das, Adv,
For Respondent(s) : Mr. S. Bhattacharjee, Adv,
Mr. Rajib Saha, Adv.
Date of Hearing : 22.05.2024
Date of delivery of
Judgment and Order : 20.06.2024
Whether fit for
Reporting : YES
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
This appeal under Section 173 of MV Act is
preferred challenging the judgment and award dated
18.07.2022 passed by Learned Member, Motor Accident
Claims Tribunal, Court No.1, West Tripura, Agartala in
connection with case No.T.S.(MAC) 139 of 2017. By the said
judgment, Learned Tribunal below has awarded
compensation amounting to Rs.23,92,600/- with interest at
the rate of Rs.6% per annum with effect from 31.07.2017 to
till the date of payment.
02. Heard Learned Counsel, Mr. Alik Das representing
the appellant-petitioner and also heard Learned Counsel, Mr.
S. Bhattacharjee for the O.P. respondent, owner of the
vehicle and Learned Counsel Mr. Rajib Saha, for the
Insurance Company.
03. At the time of hearing, Learned Counsel for the
appellant submitted that the victim-appellant was a driver by
profession of a heavy vehicle but the Learned Tribunal below
only determined his monthly income at the rate of
Rs.9,000/- per month which was too less and furthermore,
due to accident the appellant-petitioner has been totally
disabled, he could not do any hard work, nor he is in a
position to drive any vehicle, so, according to Learned
Counsel for the appellant, the award needs to be enhanced
and urged for allowing this appeal and to enhance the
quantum of compensation.
He further submitted that in view of the
notification dated 04.08.2023 of this High Court of Tripura,
as a lorry driver, his monthly income should be determined
at the rate of Rs.26,000/- but the Tribunal did not consider
the same. Learned Counsel for the appellant further
submitted that the Learned Tribunal at the time of
determination of compensation also awarded interest at the
rate of 6% per annum with effect from 31.07.2017 which
was also too less because in most of the cases the Apex
Court and the High Court have determined the rate of
interest at the rate of 9% per annum.
04. On the other hand, Learned Counsel for the O.P.
owner submitted that the Learned Tribunal below rightly
determined the amount of compensation in favour of the
claimant-petitioner. Learned Counsel for the Insurance
Company at this stage submitted that before the Tribunal,
the claimant-appellant could not adduce any documentary
evidence showing monthly income of the appellant, so as
such Learned Tribunal rightly determined the monthly
income of the appellant at the rate of Rs.9,000/- per month.
In this case, the appellant-petitioner, Sohag Majumder
submitted one claim-petition before the Learned Tribunal
that he was engaged as a driver of vehicle bearing No.AC-
01-DC-5641 and in that vehicle another driver was engaged
namely, Gopal Das. The vehicle was on the way to West
Bengal from Tripura and when the vehicle reached at
Madarihat, it created some technical problem and
accordingly, they parked their vehicle in the garage of one
Swapan Sutradhar at Bhagat Para on National High Way
within the jurisdiction of Madarihat Police Station, Alipurduar,
West Bengal. On 23.02.2017 at about 7 a.m. when they
were coming to the garage from a nearby hotel after taking
tea, that time one white colour Fort bearing No.WB-74-AG-
8282 coming with high speed, rashly and negligently dashed
them by the side of the road. Due to that accident, both of
them, Sohag Majumder and Gopal Das received severe
injuries on their persons. Just after the accident, they were
shifted to Birpara S.G. Hospital, Alipurduar and considering
the gravity of injury, the attending doctor referred both of
them to Shanti Swasthalaya & Anusandhan Kendra, Siliguri,
West Bengal for better treatment wherein the appellant-
petitioner got admitted as an indoor patient and was treated
therein till 03.03.2017 but due to unbearable expenditure of
said Nursing Home, the family members of the appellant-
petitioner were bound to shift him to Siliguri Medical College
& Hospital, West Bengal wherein he got admitted as an
indoor patient and was treated therein w.e.f. 03.03.2017 to
24.04.2017. Thereafter, considering the situation of the
appellant-petitioner, the family members shifted him from
Siliguri Medical College to AGMC Agartala wherein he
undergone treatment including some private doctors and by
this way he spent Rs.5,00,000/- for his treatment. According
to him, due to accident he became totally disabled and the
accident took place due to rash and negligent driving by the
driver of the vehicle bearing No.WB-74-AG-8282. On this
issue, a police case was registered with Madarihat Police
Station against the driver of the vehicle bearing No.WB-74-
AG-8282. According to the appellant-petitioner, he was a
driver by profession having a monthly income of Rs.20,000/-
including fooding. He further stated that the family members
were taking loan from various sources for continuing his
treatment including their day to day expenses. So, the
appellant filed a claim-petition claiming compensation of
Rs.26,00,000/-.
05. The O.P. owner contested the proceeding by filing
written statement denying the averments of the appellant-
petitioner made in his claim-petition except the fact that the
alleged vehicle bearing No.WB-74-AG-8282 was owned by
him and he had no idea about the place, date and time of
accident. It was further submitted that at the time of
accident, the opposite party authorized Mr. Sagun Garg to
ply the vehicle and his vehicle was duly insured with the
Cholamandalam MS General Insurance Company Ltd.
covering the period of insurance with effect from 17.04.2016
to 16.04.2017 and if any compensation is awarded, that
should be paid by the insurer of the said vehicle.
06. The noticee Cholamandalam MS General
Insurance Company Ltd. in their written statement formally
denied the age, occupation, monthly income of the injured,
nature of injuries sustained by him and name and address of
the Medical Officer present at the time of treatment. They
urged for direction upon the owner of the vehicle to produce
valid driving licence of the driver and other related
documents of the vehicle.
07. On the basis of the pleadings of the parties,
following issues were framed:
(1) Is the claim application filed by Sri
Sohag Majumder under Section 166 of the
MV Act maintainable in its present form and
nature?
(2) Had the claimant petitioner Sri Sohag
Majumder sustained injuries out of a road
traffic accident alleged to have been
occurred on 23.02.2014, at about 7 a.m. at
Bhagat Para, Uttar Sishubari on National
Highway under the territorial jurisdiction of
Madarihat Police Station, Alipurduar, West
Bengal?
(3) Was the accident occurred due to rash
and negligent driving of the vehicle bearing
registration No.WB-74-AG-8282 by its
driver?
(4) Is claimant petitioner Sri Sohag
Majumder entitled to get compensation to
get compensation as prayed for? If yes,
then to what extent and who shall be held
liable to pay the compensation money?
(5) What other relief or reliefs the parties
to this case are entitled to get?
08. To substantiate the issues, the appellant-
petitioner was examined as PW1 and relied upon some
documents which were marked as Exbt.1 to Exbt.14/66. He
also adduced another witness namely, Dr.Dipti Bikash Roy as
PW.2 and adduced one document which was marked as
Exbt.15. O.P. Shri Sanjoy Kumar Agarwala was examined as
OPW1 and proved certain documents into evidence marked
as Exhibits A to Exhibit D. No oral or documentary evidence
was adduced by Insurance Company.
09. Finally, after taking evidence and also on
conclusion of argument, Learned Tribunal below delivered
the award/judgment by order dated 18.07.2022. The
operative portion of the order runs as follows:
Order/Award
"It is, therefore, held that the petitioner
Sohag Majumder is entitled to get
compensation of Rs.23,92,600/- (Rupees
Twenty-three Lakh Ninety-two Thousand
Six Hundred) only with interest @ 6% per
annum from 31.07.2017 i.e. the date of
filing of the case till the date of actual
payment. The Noticee, Cholamandalam MS
General Insurance Company Ltd. will pay
the amount of compensation with interest
within 30 days from today. Out of the total
amount of compensation inclusive of
interest, 60% shall be kept in a fixed
deposit scheme in the name of the
petitioner in UCO Bank, District Court
Branch, Agartala for a period of five years
and rest 40% shall be paid to him through
his Bank Account. The petitioner will,
however, be entitled to receive the monthly
interest from the fixed deposit certificate.
No loan or withdrawal shall be permitted
from the fixed deposit certificate without
prior permission of this Tribunal. Supply
copy of this award free of cost to the
parties."
10. Challenging that judgment, the appellant-
petitioner has preferred this appeal. At the time of delivery
of judgment, Learned Tribunal below awarded Rs.74,000/-
for cost of attendant, Rs.20,000/- as conveyance charges,
Rs.36,459 towards cost of medicines etc., Rs.81,779/-
towards treatment cost of his injuries and determined the
monthly income of the appellant-petitioner at Rs.9,000/- per
month and awarded compensation for a period of 6 months
i.e. (Rs.9,000/- X 6) Rs.54,000/- as loss of income and
relying upon the judgment of Hon'ble Supreme Court in Raj
Kumar v. Ajay Kumar & another reported in (2011) 1
SCC 343, a further some of Rs.20,000/- was awarded for
loss of amenities of life. Further relying the evidence of PW2,
Member of the District Disability Board, Dr.Dipti Bikash Roy
and determined functional disability of the petitioner as 85%
and thereafter, relying upon the judgment of Hon'ble
Supreme Court of India in National Insurance Company Ltd.
vrs. Pranay Sethi and ors., reported in (2017) 16 SCC 680,
awarded further 40% of Rs.9,000/- as loss of future income
and thus, monthly income of the appellant-petitioner was
calculated to Rs.12,600/- (Rs.9,000/- + 3,600/-) and relying
upon another judgment of Hon'ble Supreme Court in Sarla
Verma and Ors vrs. Delhi Transport Corporation,
reported in (2009) 6 SCC 121, he applied multiplier of 16
and determined future loss of income at Rs.24,19,200/-
(Rs.12,600/- X 12 X 16) and as the appellant-petitioner
sustained functional disability, so, determined the amount
after calculation Rs.20,56,320/- (85% of Rs.24,19,200/-). He
further awarded a sum of Rs.50,000/- for pain, suffering due
to such accident. Thus, calculated compensation assessed to
Rs.23,92,558/- (Rs.74,000/- + Rs.20,000/- + Rs.36,459/- +
Rs.81,779/- + Rs.54,000/- + Rs.20,000/- + Rs.20,56,320/-
+ Rs.50,000/-) and allowed the same to the appellant-
petitioner and fastened the liability of payment of
compensation upon O.P. respondent No.2. In the claim-
petition, the petitioner claimed his monthly income at
Rs.20,000/- per month as a lorry driver.
11. I have perused the notification dated 04.08.2023
by Registrar General of the High Court of Tripura wherein
notional wages in respect of the cases involved in accident
after 31.12.2015 in respect of lorry driver is shown to be
26,000/- per month.
12. So, in course of hearing Learned Counsel urged
for determination of the monthly income of the petitioner in
pursuance of the said notification of this High Court dated
04.08.2023. Admittedly, there is no dispute on record that
the appellant-petitioner was not a driver by profession. But
in the claim-petition, the claimant-petitioner shown his
monthly income as Rs.15,000/- and he claimed for
compensation amounting to Rs.26,00,000/-. So, as
submitted by Learned Counsel for the claimant-petitioner,
there is no scope to consider the amount as fixed by the
aforesaid notification dated 04.08.2023 at Rs.26,000/- per
month. Since, the appellant-petitioner was a driver of heavy
vehicle and the accident took place on 23.02.2017. So,
considering the prevailing market position of the year 2017,
we can safely ascertain per day income of the petitioner
would not be less than Rs.500/- per day and being a driver
of a heavy vehicle, he might be a regular driver. Although no
income certificate could be produced, so, easily his monthly
income can be assessed to Rs.15,000/- per month.
Learned Tribunal below although determined the
monthly income at the rate of Rs.9,000/- per month but in
my considered view, after hearing both the sides, Learned
Tribunal ought to have determine the monthly income at
Rs.15,000/- per month. If it is so, then there would be slight
change in calculating the amount of compensation. Now, it
would be 15,000/- + 40% of Rs.15,000/-)=Rs.21,000/- and
as per law laid down by the Supreme Court in Sarla Verma
and Ors. Delhi Transport Corporation reported in (2009)
6 SCC 121, the multiplier would be 16. Therefore, the loss
of future income would be assessed at Rs.21,000/- X 12 X
16=Rs. 40,32,000/-. As the appellant-petitioner sustained
85% functional disability, so, the compensation on
calculation comes to Rs. 34,27,200/- which be awarded in
favour of the appellant-petitioner.
13. However, in view of the variation of income his
award towards loss of income for a period of six months
would be Rs.15,000/- X 6= Rs.90,000/-. Thus, the total
compensation would come to Rs.74,000/- + Rs.20,000/- +
Rs.36,459/- + Rs.81,779/- + Rs.90,000/- + Rs.20,000/- +
Rs.34,27,200/- + Rs.50,000/-=Rs.37,99,438/- which the
appellant-petitioner would be entitled to get in this case.
14. Considering the materials on record, there is no
scope to determine the functional disability upto 100% and
in respect of rate of interest, it appears that the Learned
Tribunal below rightly fixed that amount at the time of
delivery of judgment/award. Thus, the appeal be modified to
the above extent as stated above.
15. In the result, the appeal filed by the appellant-
petitioner is hereby allowed. The judgment and order dated
18.07.2022 passed by Learned Member, Motor Accident
Claims Tribunal, Court No.1, West Tripura, Agartala in
connection with case No.T.S.(MAC) 139 of 2017 is hereby
modified. The appellant-petitioner would get Rs.
Rs.37,99,438/- with interest at the rate of 6% per annum
from 31.07.2017 to till the date of realization. The noticee
Cholamandalam MS General Insurance Company Ltd. will
pay the amount of compensation with interest within a
period of 6 weeks from the date of passing order/judgment.
The insurance company shall deposit the amount to the
Learned Tribunal below within the aforesaid stipulated period
and the other direction of the Tribunal regarding disbursal of
amount would be followed. With this observation, this appeal
is allowed. The appeal is thus disposed of.
Send down the LCR along with a copy of this
judgment/order.
Pending application(s), if any, also stands
disposed of.
JUDGE
MOUMITA Digitally signed by MOUMITA
DATTA
DATTA Date: 2024.06.21 17:48:13
+05'30'
Purnita
