Tripura High Court

The Oriental Insurance Company Ltd vs Sri Santi Saha on 17 May, 2024

                       HIGH COURT OF TRIPURA
                             AGARTALA
                       MAC App. No.37 of 2023

The Oriental Insurance Company Ltd
Represented by the Divisional Manager,
Agartala, Division Office, H.G.B. Road,
(Near Sarkar Nursing Home)
Agartala, West Tripura
                                                        ----Appellant(s)
                                    Versus

1. Sri Santi Saha,
   S/O Tapan Kumar Saha
   Of Joynagar, P.S. West Agartala
   District - West Tripura.
2. Sri Khokan Sarkar
   S/O Late Chitta Rn. Sarkar,
   Of Laxman Para P.S. Amtali
   District - West Tripura
   (Owner of Maruti Swift No. TR-01-G-4151)
                                                      ---- Respondent(s)

For Appellant(s) : Mr. Biswanath Majumder, Adv.

    For Respondent(s)     :     Mr. K. Deb, Adv.

    Date of hearing       :     14.05.2024

    Date of delivery of
    Judgment & Order      :     17.05.2024

    Whether fit for
    reporting             :     NO

               HON'BLE MR. JUSTICE BISWAJIT PALIT

                             Judgment & Order

This is an appeal under Section 173 of the M.V.

Act, 1988 challenging the judgment and award dated

06.01.2023 passed by Learned Member, Motor Accident Claims

Tribunal Court No.4, West Tripura, Agartala in connection with

T.S.(MAC) No.41 of 2020.

2. Heard Learned Counsel Mr. Biswanath Majumder

representing the appellant-Insurance Company and also

Learned Counsel Mr. K. Deb representing the respondent-

claimant. None appeared on behalf of the OP-owner of vehicle

bearing no.TR-01-G-4151.

3. Before coming to the conclusion, let us discuss

about the subject matter of the claim petition filed by the

respondent-claimant petitioner before the Learned Tribunal

below. The claimant Shri Santi Saha filed an application under

Section 166 of M.V. Act claiming compensation before the

Learned Tribunal.

4. The gist of the claim petition of the respondent-

claimant petitioner was that on 13.11.2019, the respondent-

claimant petitioner was proceeding towards Bishalgarh by riding

his motor bike bearing no.TR-07-C-8019 along with his friend

and at about 10:30P.M., while he was gossiping with his

another friend by stopping his motor bike by the side of the

road near Chowmuhani Bazaar, that time, the offending Maruti

Swift bearing TR-01-G-4151 came from Bishalgarh side with

high speed in rash and negligent manner dashed the claimant

Shri Santi Saha resulting which he sustained multiple grievous

injuries on his person. Immediately, he was taken to G.B.P.

Hospital by the local people wherein he was admitted till

06.01.2020 and during that period his right leg was amputated.

Thereafter, on discharge from the hospital, he had to undergo

further better treatment for recovery of his injuries.

According to him, the accident occurred due to

rash and negligent driving of the offending Maruti Swift by its

driver. It was further submitted that he used to earn

Rs.14,000/- per month and due to accident, he has become

permanently disabled and could not earn his livelihood.

5. In obedience to the notice issued, the owner of

the offending vehicle Maruti Swift bearing TR-01-G-4151

appeared before the Tribunal and filed his written statement

wherein he denied all the assertions of the claimant-petitioner

and further submitted that he is/was the registered owner of

vehicle bearing registration no. TR-01-G-4151(Maruti Swift) and

the said vehicle was duly insured with the Oriental Insurance

Company Ltd. vide policy no.215700/31/2020/69396 (covering

the period from 27.06.2019 to mid night of 26.06.2020). It was

further submitted that on the relevant day one Shipan Sharma,

son of Paresh Sharma of West Gokulnagar, Bishalgarh, District

Sepahijala was the driver of the said offending vehicle and he

had valid driving licence. It was also the plea of the O.P. owner

that the accident occurred due to the rash and negligent driving

of the motor bike by its rider bearing no.TR-07-C-8019.

6. The Insurance Company on receipt of the notice

also appeared and submitted one written objection denying the

entire assertions of the claimant petitioner in the claim petition

and submitted that the owner of the vehicle did not report

anything regarding accident to the Insurance Company and the

Insurance Company was unaware about the fact of any case

filed by the claimant-petitioner and also denied the monthly

income of the petitioner at Rs.14,000/- per month and finally

submitted that the claim petition is subjected to strict proof by

the claimant-petitioner.

7. Upon the pleadings of the parties, Learned

Tribunal below determined the following issues:

1) whether the claimant petitioner Sri Santi Saha sustained injury in a vehicular accident occurred on 13.11.2019 at about 10:20 p.m. at Chowmuhani Bazar near a temple on Agartala-

Bishalgarh Road under Amtali P.S. West Tripura District due to rash and negligent driving of vehicle bearing No. TR-01-G-4151 (Maruti Swift) by its driver.

2) Whether the claimant petitioner is entitled to get compensation, if so, upto what extent and who shall be liable to pay the same.

8. To substantiate the issues, the claimant-petitioner

has adduced two witnesses and relied upon some documentary

evidence which were marked as exhibits in that case.

Name of the witnesses of the claimant petitioner:

1) PW-1: Sri Santi Saha(claimant himself)

2) PW-2: Dr. Dipti Bikash Roy (Locomotor Specialist)

Exhibits of the claimant petitioner:

1) Ext.1 series - Certified copies of FIR, ejahar, injury report and charge sheet;

2) Ext.2 - Discharge certificate of GBP Hospital;

3) Ext.3 series - Cash memos;

4) Ext.4 - Disability certificate;

5) Ext.5 - Voter I.D. Card of claimant.

9. On the other hand, the OP-owner was examined

himself as DW-1 and relied upon some documentary evidence

which were marked as exhibits.

Witness of the OP-owner:

1) DW-1: Sri Khokan Sarkar

Exhibits of the OP-owner:

1) Ext.A - Driving licence of Shipan Sharma;

2) Ext.B - Registration certificate of vehicle vide No. TR-01-G-4151;

3) Ext.C - Insurance Policy of the vehicle;

4) Ext.D - Copy of seizure list dated 07.12.2019.

10. No oral and documentary evidence on record was

adduced by the Insurance-company.

11. So, Learned Tribunal below after taking oral

evidence and also on perusal of the documentary evidence on

record allowed the claim petition by judgment and award dated

06.01.2023. The operative portion of the judgment and award

of the Learned Tribunal below runs as follows:

Order

12.In the result, the application under section 166 of the M.V. Act, 1988 filed by the claimant, Sri Santi Saha is allowed on contest.

The claimant is entitled to a sum of Rs.48,43,600/- (Rupees forty eight lakhs forty three thousand and six hundred) only as compensation in this case. O.P. No.2 the Oriental Insurance Co. Ltd. being insurer of the offending vehicle bearing No.TR-01- G-4151 shall pay the said amount of compensation to the claimant within a period of 30(thirty) days from the date of award in terms of Section 168(3) of the Act.

The amount of compensation shall carry interest @ 9% per annum from the date of presentation of the claim petition before the Tribunal on 06.03.2020 till realization.

The O.P. Insurance company shall give notice of the deposit of the compensation amount to the claimant and shall also file a compliance report with this Tribunal within 15 days of the deposit.

13.Supply copy of the judgment to the claimant and the O.P. No.2 free of cost.

Challenging that judgment, the appellant-

Insurance Company has preferred this appeal before the High

Court.

12. In course of hearing of argument, Learned

Counsel for the appellant, Mr. Biswanath Majumder submitted

that there was contributory negligence on the part of the

claimant-petitioner which was not taken into consideration by

the Learned Tribunal below. Learned Counsel further submitted

that the Learned Tribunal below determined the monthly

income of the claimant-petitioner at Rs.14,000/- in absence of

proper documentary evidence on record which was excessive

and contrary to the guideline issued by the Hon'ble Apex Court

time to time. Learned Counsel also submitted that before the

Tribunal, the driving licence of the rider of the motor bike was

not produced. So, in absence of the valid driving licence, the

award cannot be sustained. It was further submitted that owner

of the motor bike was not made as party in the claim petition

by the claimant petitioner for which the claim petition was

suffered from defect of necessary party. Learned Counsel also

submitted that the Learned Tribunal below did not frame the

issues properly and under conventional heads, compensation

was awarded by the Tribunal below. So, the judgment and

award of the Learned Tribunal below cannot be sustained in the

eye of law and urged for setting aside the award.

13. On the other hand, Learned Counsel for the

respondent-claimant petitioner submitted that the Learned

Tribunal below considering the oral/documentary evidence on

record rightly delivered the judgment/award. Countering the

submissions made by the Learned Counsel for the appellant,

Learned Counsel for the respondent-claimant petitioner

submitted that, in this case, the victim was in

standing/stationary condition at the time of accident keeping his

motor bike by the side of the road when the offending vehicle

of the owner dashed against him and for that, he sustained

grievous injuries and furthermore, since the victim petitioner

was in standing condition, so, as alleged by the Learned

Counsel for the appellant, question of contributory negligence

does not arise. It was further submitted that the accident took

place in the year 2019 when a mason used to earn more than

Rs.15,000/- per month in our State. But in this case, the

Tribunal has assessed the monthly income of the claimant

petitioner at Rs.14,000/- per month which according to him,

Learned Tribunal rightly did the same. In respect of driving

licence of the motor bike rider, he submitted that since from the

police investigation as relied upon by the claimant petitioner, it

is clear that the accident occurred due to rash and negligent

driving of the offending Maruti Swift vehicle by its driver. So,

the question of adducing/producing the driving licence of the

rider of the motor bike was not at all required and Learned

Tribunal below rightly considering the relevant papers came to

the proper observation.

Furthermore, Learned Counsel also submitted that

owner/rider of the bike which was in stationary condition was

not required to be made as party in the claim petition, as such,

the claimant petitioner did make the owner of the bike as party

in the petition and no such plea, as aforesaid, was taken by the

Insurance Company either by filing written statement or by

adducing evidence on record before the Tribunal. Learned

Counsel also submitted that since the bike of the rider was not

involved in the accident, so, the question of making Bajaj

Allianz Insurance Company as the party in the claim petition

was not at all required, so, this plea at this stage also cannot be

accepted. Finally, Learned Counsel submitted that Learned

Tribunal below did not award any money towards conventional

heads, so, as submitted by the Learned Counsel for the

appellant, this plea also cannot be accepted and urged for

upholding the judgment and award delivered by Learned

Tribunal, dismissing the present appeal.

14. Learned Tribunal below in determining the case

framed two issues. In respect of determination of issue no.1,

Learned Tribunal below came to the observation that on the

alleged date, the accident took place on 13.11.2019 due to rash

and negligent driving of the offending vehicle bearing no.TR-01-

G-4151 by its driver. No contrary evidence in this regard could

be placed before the Learned Tribunal below either by the

owner of the offending vehicle or by the Insurance Company.

So, in my considered view, Learned Tribunal below rightly

decided the issue no.1 in favour of the respondent-claimant

petitioner of this appeal. In respect of determination of issue

no.2, Learned Tribunal below relied upon the judgment of the

Hon'ble Apex Court reported in (2011) 1 SCC 343, Raj Kumar

vs. Ajoy Kumar. In para no. 6 of the judgment, Hon'ble the

Apex Court has observed as under:

"6. The heads under which compensation is awarded in personal injury cases are the following:

Pecuniary damages (Special damages)

(i) Expenses relating to treatment, hospitalization, medicines, transportation, nourishing food, and miscellaneous expenditure.

(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:

(a) Loss of earning during the period of treatment;

(b) Loss of future earnings on account of permanent disability.

(iii) Future medical expenses. Non-pecuniary damages (General damages)

(iv) Damages for pain, suffering and trauma as a consequence of the injuries.

(v) Loss of amenities (and/or loss of prospects of marriage)

(vi) Loss of expectation of life (shortening of normal longevity).

In routine personal injury cases, compensation will be awarded only under heads (i), (ii)(a) and (iv). It is only in serious cases of injury, where there is specific medical evidence corroborating the evidence of the claimant, that compensation will be granted under any of the heads (ii)(b), (iii),

(v) and (vi) relating to loss of future earning on account of permanent disability, future medical expenses, loss of amenities (and/ or loss of prospects of marriage) and loss of expectation of life."

Relying upon the said principle and also from the

evidence of claimant-petitioner as PW-1, Learned Tribunal

below came to the finding that due to accident, the petitioner

sustained grievous injuries on his person and he was

immediately shifted to G.B.P. Hospital wherein his right leg was

amputated and from the disability certificate issued by District

Disability Board, Learned Tribunal below came to the finding

that the victim petitioner sustained 85% permanent locomotory

disability and upon that, Learned Tribunal below under the Head

pecuniary damages determined Rs.30,000/- for the purpose of

treatment. In addition to that, Learned Tribunal below awarded

Rs.10,000/- as transportation charge, Rs.10,000/- as attendant

charge and for the purpose of nourishment and miscellaneous

expenses, Learned Tribunal determined Rs.30,000/- and

awarded the same in favour of the claimant. Thus, under the

head pecuniary damages, Learned Tribunal below determined

Rs.80,000/-.

In course of hearing, Learned Counsel for the appellant

could not submit anything in this regard.

15. Now, in respect of loss of future earnings, Learned

Tribunal below determined the monthly income of the claimant

petitioner as Rs.14,000/- per month and with that amount, he

added 40% of the amount i.e. 40% of Rs.14,000=Rs.5,600/- as

future prospect being self employed. Thus, he determined the

compensation applying multiplier of 18 as Rs.42,33,600/-

((14,000+5,600)x12x18). But at the time of determination of

the compensation under future earnings, Learned Tribunal

below determined the monthly income of the claimant at

Rs.14,000/- based upon his oral evidence as the claimant

petitioner before the Tribunal could not adduce any

documentary evidence in support of his contention which in my

considered view, Learned Tribunal below could not properly

assess the said amount.

16. According to the claimant petitioner, he was a

mason by profession. Now, if for argument sake, if it is

determined that as a mason he used to earn Rs.500/- per day

in the year 2019. In that case, he could definitely work not

more than 25 days per month. So, taking into consideration,

the number of working days as 25, his monthly income could be

assessed to Rs.12,500/-(Rs.500x25) in place of Rs.14,000/- as

determined by the Tribunal. In that case, the computation of

future earnings would be as follows:

i) Income per month: Rs.12,500/-

ii) 40% of the above to be added as future

prospect being self-employed: Rs.5000/-

iii) Total of Sl. No.(i) & (ii) comes to Rs.12,500/-

+ Rs.5000/- =Rs.17,500/-.

iv) Compensation after applying multiplier of 18 :

Rs.17,500/- x 12 x 18 = Rs.37,80,000/-.

So, under this head, the compensation comes to

Rs.37,80,000/- which be awarded in favour of the respondent-

claimant petitioner.

Regarding future medical expenses, nothing is

raised by the appellant in this regard. Learned Tribunal below

under non-pecuniary damages awarded sum of Rs.5,00,000/-

based upon aforesaid principle of law laid down by Hon'ble Apex

Court in the aforesaid case in Raj Kumar (supra) as he had to

undergo pain and sufferings due to the injury caused for such

accident as well as for the disablement which was non-

progressive and permanent in nature and also for loss of

amenitites like loss of scope of marriage, etc.

Therefore, the total compensation comes to (Rs.80,000

+ Rs.37,80,000 + Rs.30,000 + Rs.5,00,000) =Rs.43,90,000/-

Thus, in my considered view, the respondent-claimant

petitioner is entitled to get the aforesaid amount. Since the

appellant by this appeal did not dispute anything regarding the

Insurance policy, so, Learned Tribunal below rightly fastened

the liability for making payment of compensation upon the

Insurance Company and there is no contrary evidence on record

in this regard from the side of the appellant.

17. In the result, the appeal is partly allowed. The

respondent-claimant petitioner is entitled to sum of

Rs.43,90,000/-(forty-three lakh ninty thousand only) with

interest at the rate of 9% per annum from the date of

presentation of the claim petition i.e. from 06.03.2020 to till

realization. The appellant be asked to deposit the amount to the

Learned Tribunal below within a period of 60(sixty) days from

the date of passing of this judgment.

Supply a copy of the judgment to the Learned

Counsel for the appellant free of cost.

Send down the LCR along with a copy of this

judgment.