Tripura High Court
Sri Mintu Saha vs Sri Saraswata Datta on 20 June, 2024
HIGH COURT OF TRIPURA
AGARTALA
MAC App. No.100 of 2023
Sri Mintu Saha
S/O Late Manindra Chandra Saha,
Resident of Village- Subash Palli,
Badharghat, Agartala, P.S., A.D. Nagar,
District- West Tripura, Pin-799003
......Appellant
Versus
1. Sri Saraswata Datta,
S/O. Sri Chiranjib Datta,
Resident of Malancha Nibash,
Government Quarter No. Type-IV/1, Block No.10, Kunjaban,
P.S. New Capital Complex, District West Tripura.
(Driver of Scooty bearing No. TR-01-AB-9561).
Present address- Kunjaban Colony (Eastern Side Lane of
Circuit House, Old Matri Mangal area),
P.O.-Abhoynagar, P.S.- New Capital Complex,
Dist.- West Tripura, Pin- 799005.
2. Smti. Samita Paul Datta,
W/O. Sri Chiranjib Datta,
Resident of Malancha Nibash,
Government Quarter No. Type-IV/1, Block No.10, Kunjaban,
P.S. New Capital Complex, District West Tripura.
(Owner of Scooty bearing No.TR-01-AB-9561).
Present address- Kunjaban Colony (Eastern Side Lane of
Circuit House, Old Matri Mangal area),
P.O.-Abhoynagar, P.S.- New Capital Complex,
Dist.-West Tripura, Pin- 799005.
3. The Divisional Manager,
National Insurance Company Ltd.,
Thana Road, Dharmanagar,
District North Tripura, PIN-799250,
(Insurer of Scooty bearing No.TR-01-AB-9561).
.......Respondents
a/w
National Insurance Co. Ltd..,
Represented by the Divisional Manager,
Office at A.K. Road, P.S. West Agartala,
District- West Tripura
(Insurer of Scooty bearing No.TR-01-AB-9561).
...... Opposite Party No.3 Appellant
Versus
1. Sri. Mintu Saha,
S/O. Late Manindra Chandra Saha,
Resident of village Subash Palli, Badharghat, Agartala,
P.S. A.D. Nagar, District- West Tripura, Pin-799003.
.....Claimant Respondent
2. Sri Saraswata Datta,
S/O. Sri Chiranjib Datta,
Resident of Malancha Nibash,
Govt. Quarter No. Type-IV/1, Block No.10, Kunjaban,
P.S. New Capital Complex, District- West Tripura,
(Driver of Scooty bearing No.TR-01-AB-9561).
3. Smti. Samita Paul Datta,
W/O. Sri Chiranjib Datta,
Resident of Malancha Nibash,
Govt. Quarter No. Type-IV/1, Block No.10, Kunjaban,
P.S. New Capital Complex, District- West Tripura.
(Owner of Scooty bearing No.TR-01-AB-9561).
......Opposite Party Respondents
For Appellant(s) : Mr. N. Chowdhury, Adv,
Mr. S. Saha, Adv.
For Respondent(s) : Ms. R. Purkayastha, Adv,
Ms. V. Poddar, Adv.
For Appellant(s) : Ms. R. Purkayastha, Adv.
For Respondent(s) : Mr. N. Chowdhury, Adv,
Mr. S. Saha, Adv,
Ms. V. Poddar, Adv.
Date of Hearing : 22.05.2024
Date of delivery of
Judgment and Order : 20.06.2024
Whether fit for
Reporting : NO
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
This appeal under Section 173 of MV Act is
preferred by the appellant-petitioner challenging the
judgment and award dated 11.08.2023 passed by Learned
Member, Motor Accident Claims Tribunal No.1, West Tripura,
Agartala in connection with case No.T.S.(MAC) 73 of 2019.
Another appeal under Section 173 of M.V. Act is also
preferred by the O.P. No.3 i.e. the National Insurance
Company Limited challenging the judgment dated
11.08.2023 passed by the same Tribunal in the said case.
The appellant-petitioner in the appeal No.MAC App.No.100 of
2023 has prayed for enhancement of the award, on the other
hand, the appellant-petitioner i.e. the Insurance Company
has preferred this appeal to quash/set aside the impugned
judgment/award in the aforesaid case. Since the parties of
both the appeals are same and identical and subject matter
is arising out of the same judgment, so, by this common
judgment, the matter is taken up for hearing and decision.
02. Heard Learned Counsel, Mr. N. Chowdhury along
with Learned Counsel, Mr. S. Saha for the claimant-
appellants and also heard Learned Counsel, Ms. R.
Purkayastha along with Learned Counsel Ms. V. Poddar for
the appellant-Insurance Company in the same connected
case.
03. In course of hearing, Learned Counsel for the
appellant, Mr. N. Chowdhury fairly submitted that the
appellants have challenged the award on certain grounds.
According to him, the Learned Tribunal below for the purpose
of attendant charges awarded Rs.53,000/- i.e. Rs.1,000/-
per day for two attendants for 53 days but the claimant-
petitioner was actually undergone treatment for a period of
25 months which was not considered by the Learned Tribunal
below. In respect of conveyance charges, according to
Learned Counsel, only Rs.20,000/- was awarded but which
according to Learned Counsel, it should be not less than
50,000/-. In respect of pain and sufferings, only Rs.50,000/-
was awarded by the Tribunal which was also too less and
needs to be enhanced. In respect of disability, Learned
Counsel submitted that there was amputation on the body of
the victim-petitioner but Learned Tribunal below wrongly
calculated the amount of compensation in respect of
disability. So, Learned Counsel urged for enhancement of the
award granted by the Learned Tribunal below.
04. On the other hand, Learned Counsel for the
appellant-Insurance Company, Ms. R. Purkayastha along
with Learned Counsel, Ms. V. Poddar submitted that the
award granted by the Learned below was excessive because
the claimant-petitioner could not prove the disability
certificate in accordance with law. There was no incident of
road traffic accident. Even the doctor was also silent in
respect of sustaining injury by the victim through road traffic
accident. So, according to Learned Counsels, the findings of
the Learned Tribunal below suffers from infirmities and as
such prayed for allowing the appeal and to set aside the
judgment or in the alternative submitted for reduction of
compensation awarded.
05. Now for the sake of convenience, I would like to
refer herein below the subject matter of the claim-petition
filed by the claimant-petitioner before the Tribunal under
Section 166 of M.V. Act. The claimant-petitioner submitted
an application under Section 166 of M.V. Act before the
Learned Tribunal alleging inter alia that on 28.03.2018 at
about 7.00 to 7.30 p.m., when he was crossing the road
from western side towards eastern side auto stand after
shopping from Lake Chowmuhani Market that time a scooty
bearing registration No.TR-01-AB-9561 came from
Radhanagar Stand towards North Gate with abnormal speed
in rash and negligent manner and dashed the appellant for
which he sustained injuries and both the legs were fractured
and he became senseless. Immediately, after the accident,
he was rescued by the staff of Fire Brigade and shifted to
AGMC and GBP hospital, Agartala wherein he regained his
sense after three days and was under treatment upto
06.04.2018. During that period, an operation was done on
his legs. Again in the month of January 2019, he was under
treatment for about 40 days for the said injuries. Therefore,
he continued his treatment as an outdoor patient of the said
hospital as well as under private doctors. But he was not
cured and ultimately his right leg became shorter than his
left leg by 2 to 2.5 inches. The accident occurred due to rash
and negligent driving by the rider of the scooty bearing
registration No.TR-01-AB-9561. On this issue, East Agartala
P.S. case No.61 of 2018 under Sections 279/338 of IPC was
registered.
It was further submitted that the appellant was an
auto driver by profession and his monthly income was
Rs.20,000/- to 25,000/- per month and was 55 years old at
the time of accident. Hence, he claimed compensation
amounting to Rs.38,00,000/-. The O.P. No.1, the driver of
the offending scooty, in his objection stated that the O.P.
No.2 is the owner of that scooty bearing No.TR-01-AB-9561
at the time alleged accident had valid documents. In his
written objection he stated that he is ignorant regarding age,
nature of injury, profession and monthly income of the
injured and as such he denied the same. In his written
objection he further stated that the accident occurred not for
any rash and negligent driving of the offending scooty, but
the accident occurred due to negligence on the part of the
claimant-petitioner.
It was further submitted that at the time of
accident, the scooty was duly insured with the National
Insurance Company Limited covering the period with effect
from 16.05.2017 to 15.05.2018 and as such if any
compensation is to be awarded that should be paid by the
insurer of the scooty.
06. The O.P. No.2, being the owner of the scooty,
appeared and submitted that she was the owner of the
scooty bearing No.TR-01-AB-9561 at the time of alleged
occurrence. She had got all the valid documents like
registration, insurance policy, driving licence etc. In her
written objection she stated that she is also ignorant about
the accident, age, and profession etc. of the injured. She
further admitted that at the time of alleged occurrence, the
scooty was being driven by O.P. No.1 and also took the plea
that the accident occurred not for rash and negligent driving
of the offending scooty bearing registration No.TR-01-AB-
9561. It was further submitted that at the time of alleged
accident, the scooty was duly insured with the National
Insurance Company Limited and if any compensation is
awarded, that should be paid by the insurer.
07. The O.P. No.3, the National Insurance Company
Limited by filing written statement prayed for directing upon
the owner as well as the rider of the offending scooty to
produce valid driving licence, permit, insurance policy and
other vehicular documents. It was further submitted that the
claim-petition is subjected to strict proof by the petitioner.
They also denied the involvement of the scooty with the
alleged accident and it was further submitted that the claim
of the appellant was exorbitant and excessive.
08. Upon the pleadings of the parties, following issues
were framed:
(1) Did the petitioner Shri Mintu Saha
sustain injuries in a road traffic accident
occurred on 28.03.2018 at about 7 p.m. in
front of Auto Parking area near Lake
Chowmuhani Bazar on the way to
Northgate from Radhanagar Bridge out of
use of vehicle bearing registration no.
TR01-AB-9561 (Scooty) due to rash and
negligent driving of the driver of said
Scooty ?
(2) Is the petitioner entitled to get
compensation ? If so, to what amount and
who is/are liable to pay the same ?
(3) To what other reliefs the parties are
entitled ?
09. To substantiate the issues, both the parties have
adduced oral/documentary evidence on record:
Witnesses of Claimant-Appellant:-
PW1 - Shri Mintu Saha
PW2- Dr. Dipti Bikash Roy
Exhibits of Claimant-appellant:-
Ext.1: FIR u/s 154 of Cr.P.C.
Ext.2: Ejahar along with English
translation.
Ext.3/1, 3/2: Injury report
Ext.4: Final form/report
Ext.5/1, 5/2: Discharge summary
Ext.6: Disability certificate
Ext.7: Report of the loss of documents
Ext.8: Extract of driving licence
Ext.9: Photograph of patient in bed-ridden
state
Ext.10: Aadhaar card
Ext.11/1 to 11/80: Invoice (Cash/credit),
GST invoice, Cash memos
Ext.12/1 to 12/23: Ultrasonography
requisition form, Prescriptions, Patient's
record/ summary, Patient case sheet.
O.P. Witness:-
O.P.W 1 - Smti Samita Paul Datta
Exhibits of OPW:-
Ext.A: Driving Licence
Ext.B: Motor Insurance cum Policy Schedule
Ext.C: Certificate of registration
10. And finally, after hearing arguments of both the
sides, Learned Tribunal below allowed the claim-petition by
the judgment and award dated 11.08.2023. The operative
portion of the order/award:
Order/Award
It is, therefore, held that the claimant
petitioner Sri Mintu Saha is entitled to get
compensation of Rs.10,39,100/- (Rupees
Ten Lakh Thirtynine Thousand One
Hundred) only with interest @ 7% per
annum from 29.03.2019 i.e. the date of
filing of the case till the date of actual
payment. The Opposite Party No.3, National
Insurance Company Ltd., will pay the
amount of compensation with interest
within 30 days from today in terms of
Section 168(3) of M.V. Act, 1988. Out of the
awarded amount of compensation inclusive
of 14 interest, 50% shall be kept in a fixed
deposit scheme in his name in any
Nationalized Bank of his locality for a
period of five years and the rest 50% shall
be paid to him through his Bank Account.
However, the claimant petitioner shall be
entitled to receive monthly interest
therefrom for his day to day expenses. No
loan or premature withdrawal shall be
permitted from the fixed deposit account
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. Enter the result in
the relevant Register as well as in the CIS.
11. Challenging the award, the claimant-appellants
have preferred this appeal and also the National Insurance
Company Limited has challenged the appeal. I have heard
detailed arguments of both the sides and gone through the
record of the Learned Court below. For the sake of
convenience, I think it would be apposite herein below to
refer the evidence on record of the parties:
12. The claimant-appellant as PW1 has submitted his
examination-in-chief in affidavit. During examination-in-chief
before the Court, he relied upon the exhibited documents as
already stated.
save and except denial nothing came out relevant.
During cross-examination by Insurance Company,
he stated that he did not submit any document showing that
he was driving auto rickshaw before the accident. He further
submitted that he did not submit documents showing that his
right leg became shorter than his left leg by 2 to 2.5 inches.
Nothing more came out relevant from his cross-examination.
13. PW2 Dr.Dipti Bikash Roy deposed that on
05.02.2020 he was one of the members of the District
Disability Board, West Tripura, Agartala as a locomotor
specialist. On that day, he examined one Shri Mintu Saha,
S/O. Shri Manindra Saha of Subhash Palli, Arundhutinagar in
the District Disability Board, West Tripura, Agartala and
assessed his disability upto 60%. The diagnosis in this case
was difficulty to walk due to osteoarthritis both knee joint.
Accordingly, one disability certificate was issued bearing
No.TR0110619630002851 for a period of five years. The
patient was directed to report before the District Disability
Board, West Tripura, Agartala after 05.02.2020 for
reassessment of the percentage of disability. Osteoarthritis
in knee joint may occur if a person sustains injury out of a
road traffic accident. In the Disability Board, he had
produced all the relevant papers regarding his age, address,
etc. and identified the disability certificate marked Exhibit 6.
He was declined to cross-examine by OP Nos.1 &
2.
During cross-examination by O.P. No.3, he
deposed that Osteoarthritis is also related to the age of the
patient and a human being aged 56 years may suffer from
osteoarthritis due to his old age. Shri Mintu Saha did not
produce any medical papers relating to his injuries out of any
road traffic accident at the time of examination in the District
Disability Board.
14. OPW1, Smti. Samita Paul Datta filed her
examination-in-chief in affidavit and relied upon the
exhibited documents marked Exhibit A, B and C.
During cross-examination, she stated that the
accident was occurred on 28.03.2018 and her scooty was
seized by police in connection with the alleged road traffic
accident. She made prayer to the Officer-in-charge of East
Agartala Police Station in writing to release her scooty on
bail.
During cross-examination by O.P. No.3, she
stated that O.P. No.1, Shri Sarswata Datta is her son and
she heard the entire incident from her son. Further, stated
that the accident was occurred when the victim suddenly
made attempt to cross the main road without observing the
traffic from both the sides on the road.
These are the synopsis of the evidence on record.
15. From the evidence on record, it appears that
there is no dispute on record in respect of accident on the
alleged date and time and also the fact of sustaining injury
by the appellant-claimant. Because from the relevant
medical papers, prosecution papers, the Tribunal came to the
observation that the victim sustained injury due to road
traffic accident on that day and also due to the dashing by a
scooty to him. In course of hearing of argument, Learned
Counsel for the appellant, Mr. N. Chowdhury only highlighted
2 to 3 points in respect of determination of amount of
compensation by the Tribunal. According to him, Learned
Tribunal below awarded Rs.50,000/- as attendant cost for
the two attendants at the rate of Rs.1,000/- per day i.e.
Rs.500/- per head, which in my considered view, Learned
Tribunal below could not properly appreciate in view of the
fact that the cost of skill/technical attendants cannot be
equated with other job of this nature.
From the evidence on record, it appears that due
to accident the appellant had to remain in the house for a
period of ten months and for that he had to engage two
attendants per day. Although the Tribunal below awarded
53,000/- for 53 days i.e. Rs.1,000/- per day, so, in my
considered view, considering the period of confinement at
residence, the appellant should get attendant charges for a
period of ten months i.e. 300 days at the rate of 1,500/- per
day for two attendants at the rate of Rs.750 per head per
day. Thus, the amount comes to Rs.4,50,000/-
16. In respect of conveyance charges, it appears that
Learned Tribunal below awarded Rs.20,000/- which in my
considered view also appears to be too meager on the fact
that the victim-complainant had to attend hospital on so
many occasions. So, in this regard, in my considered view
Rs.50,000/- would be the appropriate amount. Regarding
purchase of medicines, Learned Tribunal has awarded
Rs.38,089/-. There is no dispute on record in this regard.
Learned Tribunal below further awarded a sum of
Rs.1,80,000/- for loss of income for ten months. There is no
dispute in this regard. Considering the nature of injury,
Learned Tribunal below also awarded a sum of Rs.50,000/-
towards pain and sufferings, which in my considered view, it
should be Rs.2,00,000/-. Thus, towards this head
Rs.2,00,000/- is awarded in place of Rs.50,000/-. Learned
Tribunal below further awarded Rs.30,000/- towards cost of
future treatment and Rs.20,000/- as his loss of amenities in
life. Nothing was submitted in this regard. Towards future
loss of income, the Learned Tribunal below determined the
monthly income of the claimant-petitioner Rs.18,000/- and
the Learned Tribunal also assessed his disability upto 60%
based on the report of Medical Officer and thus, assessed
future loss of income to Rs.6,48,000/- for temporary
disability (60% of Rs.18,000/- = Rs.10,800 X 12 X 5) and
so, I do not find any infirmity to that.
17. Thus, after calculation the total compensation
would come to Rs.16,16,089/- (Rs.4,50,000/- + Rs.50,000/-
+ Rs.38,089/- + Rs.1,80,000/- + Rs.2,00,000/- +
Rs.30,000/- + Rs.20,000/- + Rs.6,48,000/-). Since the
Tribunal below assessed the functional disability of 60% on
the report of the Locomotor specialist, so, I do not find any
scope to interfere with that finding regarding future loss of
income for the purpose of temporary disability for 5 years
amounting to Rs.6,48,000/- as already awarded by the
Tribunal. So, after hearing both the sides, it appears to me
that there is no merit in the appeal filed by the appellant-
Insurance Company but considering the facts and
circumstances of the case and in view of the principle laid
down by the Hon'ble Supreme Court of India in Raj Kumar
v. Ajay Kumar & Another, reported in (2011) 1 SCC
343, the appellant-claimant-petitioner is entitled to get
some enhanced amount of Rs. Rs.16,16,089/-.
18. In the result, the appeal filed by the appellant-
claimant-petitioner is hereby partly allowed. The claimant-
appellant is entitled to get Rs.16,16,089/- with 7% of
interest from 30.03.2019 to till realization of the payment.
The O.P. National Insurance Company Limited shall deposit
the amount to the Learned Tribunal below within a period of
six weeks from date of passing of this judgment and at the
same time, considering the materials on record, I also find
no scope to interfere with the judgment delivered by the
Learned MAC Tribunal in the aforenoted case on the appeal
of National Insurance Company Limited and accordingly, the
appeal filed by the appellant-Insurance Company stands
dismissed being devoid of merit.
Send down the LCR along with a copy of this
judgment/order.
Pending application(s), if any, also stands
disposed of.
JUDGE
MOUMITA DATTA DATTA
Date: 2024.06.21 17:50:13 +05'30'
Purnita
