Tripura High Court
Sri Debasish Roga vs Sri Parimal Dey on 28 May, 2024
HIGH COURT OF TRIPURA
AGARTALA
MAC APP No.12 of 2023
Sri Debasish Roga
Son of Sri Niranjan Roaga,
Resident of Battali, Dataram,
P.S. R.K. Pur, Udaipur,
District: Gomati Tripura
----Appellant (s)
Versus
1. Sri Parimal Dey,
Son of Chinta Haran Dey,
Resident of Rajarbag,
P.O. & P.S. R.K. Pur, Udaipur,
Gomati Tripura,
(Owner of TR-01-B-1671, Truck)
2. Mukbal Hossain,
Son of late Abdul Barek,
Resident of Muslim Para, Rajarbag,
P.S. R.K. Pur, Gomati Tripura,
(Driver of TR-01-B-1671, Truck)
3. The Branch Manager,
United India Insurance Company Ltd.,
Udaipur Branch, P.O. & P.S. R.K. Pur,
District: Gomati Tripura
(Insurer of TR-01-B-1671, Truck)
4. Uttam Kr. Das,
Son of Sri Niranjan Das,
Resident of Dataram, P.O. A.R. Para,
P.S. R.K. Pur, Udaipur, District: Gomati Tripura
(Owner of TR-03-D-5954, Motor Cycle)
5. Sri Tapas Roy,
Son of Late Babul Roy,
Resident of Dataram, P.O. A.R. Para,
P.S. R.K. Pur, Udaipur, District: Gomati Tripura
(Rider of TR-03-D-5954, Motor Cycle)
6. The Branch Manager,
National Insurance Company Ltd.,
Udaipur Branch, P.O. & P.S. R.K. Pur,
District: Gomati Tripura
(Insurer of TR-03-D-5954, Motor Cycle)
---- Respondents (s)
For Appellant(s) : Mr. Kundan Pandey, Adv.
For Respondent(s) : Mr. S. D. Choudhury, Adv.
Mr. Subham Majumder, Adv.
Date of Hearing : 16.05.2024
Date of delivery of
Judgment and Order : 28.05.2024
Whether fit for
Reporting : YES
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
This appeal is preferred by the appellant claimant-
petitioner under Section 173 of MV Act challenging the
judgment and award passed by Learned Motor Accident
Claims Tribunal, Court No.1, Gomati Judicial District,
Udaipur in TS(MAC)71 of 2018 for the purpose of
enhancement of compensation and award.
02. Heard Mr. K. Pandey, Learned counsel
representing the appellant and also heard Mr. S. Datta
Choudhury, Learned counsel appearing for the respondent
No.3 and Mr. Subham Majumder, Learned counsel
appearing for the respondent No.1.
03. Before coming to the conclusion of the case let
us project the subject matter of the claim-petition filed by
the appellant claimant-petitioner before the Learned
Tribunal. The appellant claimant-petitioner under Section
166 of MV Act preferred the claim petition before the
Learned MAC Tribunal seeking compensation for the
purpose of injuries sustained by him in a road traffic
accident involving the vehicles bearing registration No.TR-
01-B-1671 (Truck) and TR-03-D-5954 (Motor Cycle) which
took place on 28.01.2016 in front of Chandrapur Rice
Godown on Agartala-Sabroom National Highway under R.K.
Pur PS.
04. The gist of the claim petition filed by the
appellant claimant-petitioner is that on 28.01.2016 at
around 8/8.30 a.m. when the appellant was proceeding
towards Udaipur from Dataram by riding a bike bearing
No.TR-03-5954 which was being riden by one Tapas Roy.
On the way when they reached in front of Chandrapur Rice
Godown at Agartala-Sabroom National Highway that time a
truck bearing No.TR-01-B-1671 came from the opposite
direction and dashed against their bike for which the
accident occurred and resulting which both the appellant
and rider of the bike received grievous injury on their
persons. Soon after the accident the appellant was taken to
District Hospital, Tepania wherefrom he was referred to
AGMC & GBP Hospital, Agartala and again he was further
referred to Christian Medical College, Vellore for better
treatment. Due to accident the appellant sustained proximal
tibia fracture. In the department of Orthopedics Unit No.III
at CMC Vellore he was treated as an indoor patient w.e.f.
30.08.2017 to 23.11.2017. Thereafter he also took
treatment in the said hospital from 26.01.2018 to
30.01.2018. It was further alleged that the accident took
place due to rash and negligent driving of the vehicle
bearing No.TR-01-B-1671 (Truck) by its driver. According to
the appellant on this matter a police case was registered
vide No.25 of 2017 under Sections 279/338 of IPC and
Sections 177/184 of M.V. Act on the basis of ejahar lodged
by the father of the appellant. It was further submitted that
at the time of accident the appellant was a man of 25 years
and was an employee of a tailoring shop and he was earning
Rs.12,000/-. Due to damage in his right leg in the accident
he became disabled and presently cannot run his profession.
A huge debt had already been incurred towards cost of
treatment and further a good amount also be required
towards the cost of future treatment. Finally he claims
compensation for an amount of Rs.66,40,000/-.
being the owner and driver of the vehicle bearing No.TR-01-
B-1671 appeared and contested the case by filing joint
written statement denying the accident, injuries,
expenditure incurred towards the treatment, age and
occupation of the appellant etc. However, it was asserted
that at the time of accident the offending truck was driven
by the driver having valid driving licence and the truck was
also duly insured with United India Insurance Company
Limited. The OP No.3 being the insurer of the truck vehicle
appeared and contested the case by filing written statement
denying the assertions of the appellant claimant-petitioner
and it was further submitted that the claim-petition was
subjected to strict proof. It was also further submitted that
there was head on collision between the motor bike and the
truck. So there was contributory negligence in the accident
on the part of the rider of the motor cycle at the relevant
time of accident. It was also stated that in absence of the
complete policy particulars and fulfillment of the terms and
conditions of the policy the respondent insurance company
was not liable for making any payment.
06. OP No.4, the owner of the vehicle No.TR-03-D-
5954 (Motor Cycle) appeared and contested the case by
filing written statement denying the averments made by the
petitioner in the claim petition. The owner also denied the
accident, injuries, age etc. It was further submitted that on
the relevant date and time of the accident his motor cycle
was duly insured with OP No.6 covering the period of
accident. As such, compensation if any, is awarded that
should be awarded by the insurance company. The OP No.5,
rider of the motor cycle also appeared through his engaged
counsel but ultimately did not contest the case by filing
written statement. So the case proceeded ex-parte against
the rider of the motor cycle bearing No.TR-03-D-5954.
07. The OP No.6 also after receipt of notice appeared
and contested the case by filing written statement and in
the written statement they denied the assertions of the
appellant claimant-petitioner and submitted that the claim-
petition was subjected to strict proof.
08. Upon the pleadings of the parties following issues
were framed by the Learned Tribunal:
1) Whether the case is maintainable in its present form.
2) Whether the injured Debasish Roga of Battali,
Dataram, P/S R.K. Pur, sustained injury on his person in a
road traffic accident occurred on 28.01.2016 at about 8 to
8-30 p.m. in front of Chandrapur Rice Godown on
Agartala-Sabroom road involving the vehicles bearing
Nos.TR-01-B-1671 (Truck) and TR-03-D-5954 (Motor
Cycle) due to rash and negligent driving of the vehicles
by the drivers.
3) Whether the petitioner is entitled to compensation and
if so, to what amount and who is liable to pay the same.
4) To what other relief/reliefs are the parties entitled?
09. To substantiate the issues both the parties have
adduced oral/documentary evidence on record:
Witnesses of the claimant-petitioner:
PW-1: Debasish Roga
PW-2: Niranjan Roga
PW-3: Samir Das
Exhibits of the claimant-petitioner:
(i) Certified copy of FIR No.25/2017 marked as Exbt.1,
(ii) Certified copy of ejahar marked as Exbt.2,
(iii) Certified copy of seizure list (2 sheets) marked as
Exbt.3 series,
(iv) Certified copy of injury report Exbt.5,
(v) Discharge certificate of Tepania District hospital
(vi) Discharge certificate of of AGMC & GBP hospital,
Agartala marked as Exbt.5,
(vii) Discharge certificate of Ambedkar hospital, Hapania
marked as Exbt.6,
(viii) Discharge certificate of Christian Medical College,
Vellore (2 sheets) marked as Exbt.7,
(ix) Prescriptions (65 sheets) marked as Ext.8 series,
(x) Cash memo (112 nos.) marked as Exbt.9 series,
(xi) Original disablement certificate marked as Exb.10,
(xii) Income certificate marked as Ext.11,
(xiii) Air tickets (8 nos.) marked as Exbt.12,
(xiv) Boarding passes (21 nos.) marked as Exbt.13,
(xv) Lodging and fooding bills (8 nos.) marked as Ext.14,
(xvi) Train tickets (3 nos.) marked as Ext.15,
(xvii) Charge sheet (2 sheets) marked as Exbt.16,
(xviii) Blood and component request marked as Ext.17,
(xix) Photo-copy of Aadhar Card and Voter Identity Card.
Witnesses of OP No.4:
OPW-1: Sri Uttam Kumar Das
Exhibits of the OPWs:
1) Exbt. D1: Certificate of Registration of TR-03-D-5954
2) Exbt. D2: Text token of the above vehicle
3) Exbt D3: The insurance Policy No.203001/31/15/
6200005511
10. On perusal of the evidence on record and also
after hearing arguments of the contesting parties Ld.
Tribunal allowed the claim petition by judgment dated
30.03.2022. The operative portion of the judgment runs as
follows:
"In view of the above findings it is ordered that the
petitioner, Sri Debasish Roga is entitled to compensation
of Rs.7,16,000/- (Rupees Seven lac sixteen thousand)
only in total. The O.P. No.3, United India Insurance
Company Limited, insurer of vehicle No.TR-01-B-1671
(Truck) is directed to make the payment of compensation
within two months from today along with interest @7.5%
per annum thereupon from the date of filing of claim
petition i.e. from 12.12.2018 till payment/realization of
the same.
The case is disposed of on contest.
Enter the result in the relevant register.
Supply copy of the award to the parties free of
cost."
11. Challenging that judgment the appellant has
preferred this appeal before this High Court. At the time of
hearing of appeal Learned counsel Mr. K. Pandey appearing
for the appellant only submitted that the Tribunal below
assessed the disability of the victim appellant for a period of
five years only and accordingly assessed the compensation
applying multiplier of 5 on the basis of disability certificate.
But actually it should be 18 as because at the time of
accident he was 25 years old. So he urged for allowing this
appeal by setting aside the judgment of the Learned
Tribunal and also prayed for enhancement of the quantum
of compensation awarded by the Learned Tribunal in respect
of the future loss of income. Regarding other components
no further arguments were raised by Learned counsel for
the appellant.
12. On the other hand, Mr. S. Datta Choudhury,
Learned counsel appearing on behalf of the insurance
company submitted that considering the material evidence
on record both the oral/documentary Learned Tribunal
below rightly determined the amount of compensation to
the appellant. Learned counsel further submitted that the
claimant-petitioner admitted that he was a Tailor by
profession but his father when turned up the witness box he
specifically admitted that his son i.e. the appellant was a
student. So if the appellant claimant-petitioner was a
student then question of earning any income from any
source could not be accepted. But the Learned Tribunal
below inspite of that determined the monthly income of the
appellant as Rs.9,000/- per month and determined the
disability as per the certificate of the disability board for a
period of five years and accordingly rightly calculated the
amount of compensation in favour of the appellant
claimant-petitioner. So Mr. Datta Choudhury, Learned
counsel urged for dismissal of this appeal with costs and
submitted for upholding the judgment of the Learned
Tribunal.
13. I have heard detailed argument of both the
sides. As already stated at the time of hearing of argument
Learned counsel for the appellant only challenged the
determination of 'future loss of income' of the appellant
claimant-petitioner by the Tribunal and in respect of other
components he did not submit anything. On the other hand,
Learned counsel for the insurance company submitted that
since the appellant claimant-petitioner was a student at the
time of accident. So question of earning any money was not
relevant. But the Tribunal below determined the monthly
income of the appellant claimant-petitioner @ Rs.9,000/-
per month which was not warranted in the eye of law
because the witnesses of the appellant claimant-petitioner
i.e. his father himself admitted that the appellant claimant-
petitioner was a student on that relevant point of time.
Before the Tribunal the appellant claimant-petitioner was
examined as PW-1 and he relied upon some documentary
evidence which were marked as Exbt.1-Exbt.17. During
cross-examination by the OP Nos.1 and 2 he stated that at
the time of accident he was on the pillion of the bike and
one Tapas Roy was riding the bike. However, he admitted
that at the time of accident he was a college student and
denied the other suggestions by the OP Nos.1 and 2. In
course of cross-examination by the OP No.3 he denied the
fact of injury not related to any vehicular accident and also
denied the fact that he was sustained injury by his own bike
and also in course of cross-examination by OP No.6. He
denied the fact that the accident occurred due to the fault of
bike No.TR-03-D-5954.
14. PW-2 Niranjan Roga, father of the petitioner. He
in his examination in chief in affidavit reiterated the same
version as made by the petitioner in his claim petition.
During cross-examination by the OP Nos. 1 and 2 he stated
that he did not see the accident and at the time of accident
his son i.e. the appellant claimant-petitioner was a college
student. He also denied the fact of suggestions of defence
that the accident did not occur due to the fault of the
vehicle bearing No.TR-01-B-1671 (Truck) and during cross-
examination by OP No.3 he stated that he reached to the
P.O. after the accident.
15. PW-3 one Samir Das owner of a tailoring shop
also stated in the same tune like PWs 1 and 2 and further
submitted that prior to accident the appellant claimant-
petitioner Debasish Roga was working in his shop namely
'M/S Loknath Tailors' as Tailoring Master and he used to
earn Rs.400/- to Rs.450/- per day i.e. Rs.13,500/- per
month. He could not submit any documentary evidence in
this regard. It is quite natural that if any person serves in
any tailoring shop as a helper/assistant or as a Master Tailor
in that case it is very difficult on his part to submit any
documentary evidence to substantiate his monthly income.
Here in the case Learned Tribunal considering the facts and
circumstances of the case determined the monthly income
of the appellant @ Rs.9,000/- per month.
16. In course of hearing of argument regarding fixing
of monthly income of Rs.9,000/-, no legal point was raised
by the Learned counsel for the insurance company. There
was also no rebuttable evidence on record from the side of
the contesting respondents that the appellant had no such
scope to work as a helper/assistant/master tailor to the
shop of PW-3 i.e. 'M/S Loknath Tailors'. So, in my
considered opinion, Learned Tribunal below rightly
determined the income of the appellant claimant-petitioner
@ Rs.9,000/- per month. Now, in respect of disability of the
appellant relied upon Exbt.-10 i.e. the certificate issued by
the District Disability Board, Gomati District, Udaipur who
had assessed the physical disability to the extent of 40%
with validity for a period of five years from 2018 that
certificate discloses that the disability is likely to be
improved with periodical review of every six months
prescribed. Although no doctor was examined to assess the
disability who ought to suggest that future treatment would
be required and for that the Learned Tribunal below
assessed the compensation in respect of disability for a
period of five years only. The petitioner was 25 years old at
the time of accident. So, towards the future loss of income
the Tribunal calculated the amount as Rs.9,000/-
x40%x12x5 which came to Rs.2,16,000/-(Rupees two lakh
sixteen thousand).
17. In course of hearing of argument Learned
counsel for the appellant relied upon one judgment of this
High Court in Pinki Roy vs. Smt Lekha Roy Chowdhury
and Ors. numbered as MAC APP No.07 of 2019 dated
24.01.2020 in para Nos.8, 9 and 10 this High Court
observed as under:
[8] At the same time the Tribunal also committed an
error in believing that the disability was temporary.
Neither in the medical certificate of injury nor in his
deposition Dr. Tusar Kanti Chowdhury, P.W.2 it has been
stated that such disability was temporary. The medical
certificate of the board was clear and certified that the
claimant had suffered disability to the extent of 30% (of
a body as a whole). Significantly, the certificate was
based on the physical examination of the claimant by the
medical board as late as on 01.08.2018. This was nearly 5
years after the date of accident. This certificate carried
two printed columns. (i) "This condition is progressive"
and (ii) "reassessment is recommended after 5 year 0
month and validity of certificate upto 01 August, 2023".
This certificate, therefore, did not in any manner suggest
that the condition of the claimant was likely to improve
over a period of time. When Dr. Tusar Kanti Chowdhury,
P.W.2 stated in his cross-examination that the certificate
as well as injury is temporary and the same would have
to be reassessed after 5 years, in no way, he suggested
that there is a likelihood of the improvement in the
condition of the claimant. He merely reiterated what the
certificate contained namely that the claimant should be
examined again after 5 years.
[9] Firstly, in the present case the Tribunal committed an
error in appreciating the contents of the said injury
certificate and the doctor's deposition. I am informed
that in the State of Tripura there is a pattern of the
examination of an injured claimant of motor accident
claim petition by a medical board which assesses the
injury only for a limited period and calls for revision of
such injury after 5 years. I am not sure the source of this
practice having been developed. I have serious doubt
about the correctness and practicality of such practice. In
an appropriate case the legality of this process will have
to be undergone.
[10] In the present case, however, I am satisfied that
neither the injury certificate nor the doctor's deposition
suggested any possibility of improvement to the
condition of the claimant with passage of time. The
Claims Tribunal, therefore, committed an error in not
awarding any compensation for future loss of income.
The culmination of this discussion would lead to the
following result. As per the Tribunal, the claimant was
earning Rs.9,000/- per month at the time of accident. The
period of no activity can be reduced to 1 year. The
claimant would, therefore, receive a sum of
Rs.1,08,000/- for 1 year of no earning @ Rs.9,000/- per
month. The claimant was aged about 26 years at the time
of accident. As per the decision of Supreme Court in case
of National Insurance Company Limited Versus Pranay
Sethi and others reported in (2017) 16 SCC 680, there
would be 40% increase for future income. Her
prospective monthly income would come to Rs.12,600/-.
Looking to her disability, there shall be 30% loss of
earning capacity. There would therefore be a monthly
loss of Rs.3,780/- i.e. Rs.45,360/- per annum. Multiplier
of 17 would be applied as per the decision of Supreme
Court in case of Sarla Verma (Smt) and others Versus
Delhi Transport Corporation and another reported in
(2009) 6 SCC 121. Her Page 7 of 8 total future loss of
income would, therefore, come to Rs.7,71,120/- added by
Rs.1,0,8000/- of actual loss of income. The total loss of
income would come to Rs.8,79,120/-.
Referring the same Learned counsel for the
appellant submitted that in view of the principle of the said
judgment the victim is entitled to get loss of future income
in view of the judgment passed by Hon'ble Supreme Court
in Sarla Verma and Others vs. Delhi Transport
Corporation and Another reported in (2009) 6 SCC 121
and also National Insurance Company Limited vs.
Pranay Sethi and Others reported in (2017) 16 SCC 680
and further submitted that along with monthly income 40%
of income be added as future prospects and the present
appellant claimant-petitioner is entitled to get the said
benefit. From the aforesaid judgment it appears that in the
aforesaid case as per disability certificate the concerned
Medical Board opined that the condition is progressive and
reassessment is recommended after 5 years 0 months. But
in the given case although as per Exbt.10(discharge
certificate) it was shown that the victim suffered 40%
disability but his condition was likely to be improved and his
case was recommended after a period of six months. So the
principle of the aforesaid judgment cannot be applied in this
case. So as submitted by the Learned counsel for the
appellant the Learned Tribunal below in my considered view
has rightly determined towards future loss of income
amounting to Rs.2,16,000/-. Since in respect of other
components no arguments were raised by Learned counsel
for the appellant. So it can be safely assumed that the
Learned Tribunal below rightly determined the other
components towards compensation at the time of delivery
of the judgment. So this court does not find any scope to
interfere with the judgment awarded by the Learned
Tribunal below. In the case of Raj Kumar vs. Ajay Kumar
and Another reported in (2011) 1 SCC 343 Hon'ble the
Apex Court in para Nos.10, 11, 12 and 13 observed as
under:
10.Where the claimant suffers a permanent disability as a
result of injuries, the assessment of compensation under
the head of loss of future earnings, would depend upon
the effect and impact of such permanent disability on his
earning capacity. The Tribunal should not mechanically
apply the percentage of permanent disability as the
percentage of economic loss or loss of earning capacity.
In most of the cases, the percentage of economic loss,
that is, percentage of loss of earning capacity, arising
from a permanent disability will be different from the
percentage of permanent disability. Some Tribunals
wrongly assume that in all cases, a particular extent
(percentage) of permanent disability would result in a
corresponding loss of earning capacity, and consequently,
if the evidence produced show 45% as the permanent
disability, will hold that there is 45% loss of future
earning capacity. In most of the cases, equating the
extent (percentage) of loss of earning capacity to the
extent (percentage) of permanent disability will result in
award of either too low or too high a compensation.
11.What requires to be assessed by the Tribunal is the
effect of the permanently disability on the earning
capacity of the injured; and after assessing the loss of
earning capacity in terms of a percentage of the income,
it has to be quantified in terms of money, to arrive at the
future loss of earnings (by applying the standard
multiplier method used to determine loss of dependency).
We may however note that in some cases, on
appreciation of evidence and assessment, the Tribunal
may find that percentage of loss of earning capacity as a
result of the permanent disability, is approximately the
same as the percentage of permanent disability in which
case, of course, the Tribunal will adopt the said
percentage for determination of compensation (see for
example, the decisions of this court in Arvind Kumar
Mishra v. New India Assurance Co.Ltd. : (2010) 10 SCC
254 and Yadava Kumar v. D.M., National Insurance Co.
Ltd. (2010) 10 SCC 341.
12. Therefore, the Tribunal has to first decide whether
there is any permanent disability and if so the extent of
such permanent disability. This means that the tribunal
should consider and decide with reference to the
evidence:
(i) whether the disablement is permanent or
temporary;
(ii) if the disablement is permanent, whether it is
permanent total disablement or permanent partial
disablement,
(iii) if the disablement percentage is expressed
with reference to any specific limb, then the effect of
such disablement of the limb on the functioning of the
entire body, that is the permanent disability suffered by
the person.
If the Tribunal concludes that there is no permanent
disability then there is no question of proceeding further
and determining the loss of future earning capacity. But
if the Tribunal concludes that there is permanent
disability then it will proceed to ascertain its extent. After
the Tribunal ascertains the actual extent of permanent
disability of the claimant based on the medical evidence,
it has to determine whether such permanent disability
has affected or will affect his earning capacity.
13. Ascertainment of the effect of the permanent
disability on the actual earning capacity involves three
steps. The Tribunal has to first ascertain what activities
the claimant could carry on in spite of the
permanent disability and what he could not do as a result
of the permanent ability (this is also relevant for
awarding compensation under the head of loss of
amenities of life). The second step is to ascertain his
avocation, profession and nature of work before the
accident, as also his age. The third step is to find out
whether (i) the claimant is totally disabled from earning
any kind of livelihood, or (ii) whether in spite of the
permanent disability, the claimant could still effectively
carry on the activities and functions, which he was earlier
carrying on, or (iii) whether he was prevented or
restricted from discharging his previous activities and
functions, but could carry on some other or lesser scale of
activities and functions so that he continues to earn or
can continue to earn his livelihood.
Here in the given case from the evidence on
record it appears that the appellant claimant-petitioner
could not make any case to enhance the compensation
awarded by the Learned Tribunal below in determining the
amount of compensation and from the principle of law laid
down by the Hon'ble Apex Court in the aforesaid case it
appears that the Learned Tribunal below rightly determined
the amount of compensation in favour of the claimant-
petitioner i.e. the present appellant herein.
18. In the result, the appeal filed by the appellant is
hereby dismissed on contest. The appellant is not entitled to
get any relief in this context. The judgment and order dated
30.03.2022 passed by Learned Member, MACT, Gomati
Judicial District in TS(MAC)71 of 2018 is hereby upheld and
accordingly it is affirmed.
The respondent insurance company is asked to
deposit the award/compensation within a period of 6(six)
weeks from the date of passing of the judgment if by this
time the same is not deposited to the Tribunal. The
compensation shall carry interest @7.5% from the date of
filing the claim petition i.e. from 12.12.2018 to till
realization.
The case is thus disposed of on contest. The
pending application, if any, stands disposed of.
Send down the LCRs forthwith.
A copy of this judgment and order be supplied to
the Learned Counsel Mr. S. D. Choudhury for the OP-
Insurance Company free of cost.
JUDGE
MOUMITA Digitally signed by
MOUMITA DATTA
DATTA Date: 2024.05.29 18:15:31
+05'30'
Moumita
