Tripura High Court

Smt. Dipali Majumder (Saha) vs Smt. Badali Debbarma on 7 November, 2024

                   HIGH COURT OF TRIPURA
                         AGARTALA
                   MAC App. No.27 of 2024

     Smt. Dipali Majumder (Saha),
     Wife of Sri Nepal Saha, aged about 57 years,
     Resident of Joynagar, P.O.- Birendranagar,
     P.S. Jirania, Dist.- West Tripura.
                          ....Claimant- Petitioner-Appellant

                           Versus
1.   Smt. Badali Debbarma,
     Wife of Sri Pradip Debbarma,
     Resident of Kunja Behari Para, P.O.-Birendranagar,
     P.S.-Jirania, Dist.- West Tripura. Pin-799131.
     (Owner of TR-01-BM-0751, Hyundai Verna)

2.   The Branch Manager,
     Reliance General Insurance Company Limited of 3rd Floor,
     602/J, Ker Chowmuhani, T.G. Road, Agartala,
     P.S.- West Agartala, District- West Tripura, Pin-799002
     (Insurer of TR-01-BM-0751, Hyundai Verna)

3.   Sri Nepal Saha,
     Son of Lt. Gopal Saha,
     Resident of vill- Joynagar, P.O.- Birendranagar,
     P.S.- Jirania, District-West Tripura, Pin-799131
     (Owner of TR-01-S-7955, Motor Cycle)

4.   The Branch Manager,
     Bajaj Allianz General Insurance Company Limited of 3 rd
     Floor, Aitorma, Agartala Sentrum, Sakuntala Road,
     P.S.- West Agartala, District- West Tripura,
     P.O.-Agartala, Pin-799001
     (Insurer of TR-01-S-7955, Motor Cycle)
                                            .......Respondents

For Appellant(s)      :    Mr. S. Lodh, Adv.
For Respondent(s)     :    Mr. S. Chakraborty, Adv,
                           Mr. R. G. Chakraborty, Adv.
Date of Hearing       :    05.11.2024
Date of delivery of
Judgment and Order :       07.11.2024
Whether fit for
Reporting           :      NO
                             Page 2 of 11




          HON'BLE MR. JUSTICE BISWAJIT PALIT

                       Judgment & Order

           This appeal is preferred under Section 173 of M.V.

Act challenging the judgment and award dated 22.11.2023

delivered by Learned Member, MAC Tribunal No.2, West

Tripura, Agartala in connection with case No. T.S. (MAC) 54 of

2021. By the said judgment and award, Learned Tribunal below

has awarded a sum of Rs.15,82,000/- in favour of the

claimant-petitioner i.e. the appellant herein and fastened the

liability of payment of compensation upon the O.P. No.2 i.e.

the Reliance General Insurance Company Limited.

02.        Heard Learned Counsel, Mr. S. Lodh representing

the claimant-petitioner i.e. the appellant herein and also heard

Learned Counsel, Mr. R. G. Chakraborty representing the

respondent O.P. No.2 i.e. the Reliance General Insurance

Company Limited and Learned Counsel, Mr. S. Chakraborty

representing the respondent O.P. No.4 i.e. the Bajaj Allianz

General Insurance Company Limited. None appeared on behalf

on behalf of the respondent Nos.1 and 3 inspite of service of

notice.

03.        In course of hearing of argument, Learned Counsel

for the appellant-claimant first of all drawn the attention of the

Court that in the claim-petition the appellant shown the

monthly income of the deceased at Rs.12,000/- per month and

accordingly,   the   appellant   adduced   evidence   before   the
                              Page 3 of 11




Learned Tribunal below and PW2 Sanjoy Sarkar in course of his

examination stated that he has appointed the deceased as his

driver and used to pay Rs.12,000/- per month as his salary

and in addition to monthly salary he also used to pay Rs.50/-

per day to him as food allowance which was mentioned in para

No.2 of his examination-in-chief in affidavit submitted before

the Tribunal and the testimony of the said witness has

remained unrebutted/unshaken by the contesting O.Ps before

the Learned Tribunal below but the Learned Tribunal below at

the time of delivery of the judgment determined the monthly

income of the deceased at Rs.10,000/- per month which should

be atleast 12,000/- per month and urged for allowing this

appeal on the said ground.

          Learned Counsel further submitted that the Learned

Tribunal below in the operative portion of the judgment only

released Rs.2,00,000/- in favour of the appellant-claimant-

petitioner and ordered for deposit of the balance money to the

fixed deposit certificates which should also be modified as the

appellant-petitioner being major having no other source of

income and if the entire amount is kept in Fixed Deposit, in

that case she would suffer financial inconvenience and also

urged for modification of the order of the Learned Tribunal

below.

04.       On the other hand, Learned Counsel Mr. R. G.

Chakraborty appearing on behalf of the respondent O.P. No.2
                              Page 4 of 11




i.e.   the   Reliance    General   Insurance       Company      Limited

submitted that the Learned Tribunal below based on the

oral/documentary evidence on record rightly and reasonably

determined the amount of compensation and delivered the

judgment and furthermore, before the Learned Tribunal below

the    Insurance   Company    objected       the   contention   of   the

petitioner   regarding    amount    of      monthly   income    of   the

deceased and he also drawn the attention of the Court

referring the evidence of PW2 and submitted that PW2 himself

is a driver, so, no reliance can be placed upon his evidence and

urged for dismissal of the appeal. Learned Counsel for another

Insurance Company did not submit anything in course of

hearing of argument.

05.          The present appellant as claimant filed a claim

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

seeking compensation on the death of her son Prasenjit Saha

who died due to a road traffic accident. According to the

appellant on 18.02.2021 the deceased Prasenjit Saha was

proceeding towards his house from Ranirbazar along with his

friend by riding his motor cycle bearing registration No.TR-01-

S-7955 by the left side of the road and at about 2130 hours

when he reached at Bashkobra Near Kali Mandir on NH-8

Assam-Agartala road that time one vehicle bearing registration

No.TR-01-BN-0751 (Hyundai Verna) was proceeding towards

the same direction but the driver due to his rash and negligent

driving and excessive speed lost control over the vehicle and
                                Page 5 of 11




dashed behind the motor cycle of the deceased Prasenjit Saha,

as a result of which Prasenjit Saha sustained fatal injuries and

after the accident, he was immediately shifted to Jirania

Hospital where the attending doctor declared him as dead. It

was further submitted that the accident occurred due to rash

and negligent driving by the driver of the said Hyundai Verna.

The appellant further asserted that at the time of accident, the

deceased   was    a   driver    by   profession   and   was   earning

Rs.12,000/- per month and at the time of death he was

unmarried and 22 years of old. Hence, the appellant filed the

claim-petition.

           Before the Tribunal, the O.P. No.1 i.e. the owner of

vehicle bearing No.TR-01-BN-0751 (Hyundai Verna) appeared

and submitted WS denying the assertions of the claimant

petitioner and also took the plea that her vehicle was duly

insured with the Reliance General Insurance Company Limited

vide policy No.991492123740003782.

           O.P. No.2 i.e. the Reliance General Insurance

Company Limited appeared and submitted that the claim-

petition is subjected to strict proof by the claimant-petitioner.

           O.P. No.3, owner of the motor cycle bearing No.TR-

01-S-7955 appeared and denied the averments made in the

claim-petition and submitted that the accident occurred due to

rash and negligent driving by the driver of the vehicle bearing

No.TR-01-BN-0751 (Hyundai Verna). It was further submitted

that the said motor cycle was duly insured with O.P. No.4 i.e.
                             Page 6 of 11




the Bajaj Allianz General Insurance Company Limited and the

deceased Prasenjit Saha had valid driving licence at the time of

accident.

            O.P. No.4 i.e. the Bajaj Allianz General Insurance

Company Limited appeared and filed written statement and

stated that the owner and driver of the vehicle bearing

registration   No.TR-01-BN-0751            (Hyundai   Verna)     was

responsible for the alleged accident.

06.         Upon the pleadings of the parties following issues

were framed:


                             (I) Is the claim maintainable     in   its
                             present form and nature ?

                             (II) If the death of the deceased
                             Prasenjit Saha caused due to road traffic
                             accident on the alleged date, time and
                             place on account of rash and negligent
                             driving on the part of the driver of
                             vehicle    bearing    No.     TR-01-BN-
                             0751(Hyundai Verna)? If so, is the
                             claimant petitioner entitled to get
                             compensation as prayed for?

                             (III) What should be the quantum of
                             compensation and who shall be liable to
                             pay the compensation?

                             (IV) Relief/Reliefs?

07.         To substantiate the issues the appellant herself was

examined as PW1 and adduced another witness as PW2 and

relied upon some documents which were marked as Exhibit-

1(i) to 1(xxxi). The O.P. Nos.1 and 3 also filed their

examination-in-chief in affidavit.


08.         Finally on conclusion of the proceeding Learned

Tribunal below allowed the claim-petition filed by the claimant-
                            Page 7 of 11




appellant and awarded a sum of Rs.15,82,000/- along with

7.5% interest from the date of filing the claim-petition till the

date of payment. For the sake of convenience the operative

portion of the judgment/award dated 22.11.2023 runs as

follows:

                                          ORDER

22. The instant application under Section-166 of the Motor Vehicles Act, 1988 filed by the claimant-petitioner is hereby partly allowed and a sum of Rs.15,82,000.00(Rupees Fifteen Lakh Eighty Two Thousand) only is awarded in favour of claimant - petitioner as compensation for the death of her son late Prasenjit Saha, in a Road Traffic Accident, as aforesaid, and thus whole amount of compensation shall be paid by OP No.2, the reliance General Insurance Co. Ltd., being insurer, within a period of one month. The aforesaid amount shall carry interest @ 7.5% per annum to be paid from the date of filing of claim- petition, i.e., from 19.03.2021 till the date of payment.

23. In the event of deposit of the awarded amount with interest, Rs.2,00,000.00 shall be released in favour of of the claimant-petitioner, in her bank account for enabling her to meet necessary expenses because at this stage the claimant might require money to sustain her livelihood and the rest amount shall be kept in numbers of fixed deposit schemes each with Rs.5,00,000.00 in any Nationalized Bank for five years in her name separately.

24. No loan or withdrawal shall be permitted in the fixed deposit account nor joint name shall be allowed nor any cheque book, ATM card can be issued against fixed deposit account. However the interest to be credited in the fixed deposit may be released in favour of the claim-petitioner as per Bank's norms. 25. Let a copy of this Award be furnished to the parties through their engaged Ld. Counsels, for information. 26. The case is thus disposed of on contest. Enter the result in the relevant Register.

09. I have heard argument of both the sides and

gone through the record of the Learned Tribunal below

including the judgment award delivered by Learned Tribunal

below. In para No.14 of the judgment, it appears that Learned

Tribunal below did not rely upon the evidence of PW2. So, in

absence of cogent proof the Tribunal below determined the

monthly income of the deceased at Rs.10,000/- per month like

an unskilled worker. As already stated in the claim-petition the

appellant asserted the monthly income of the deceased at

Rs.12,000/- and the appellant as PW1 also reiterated the same

fact. But PW2 who was also a driver by profession stated that

he used to pay Rs.12,000/- per month to the deceased as his

salary and in addition to that he used to pay Rs.50/- as daily

food allowance to the deceased. But that part of evidence

remained unshaken by the other contesting parties save and

except denial. The incident took place on 18.02.2021. The

Tribunal without any basis determined the monthly income of

the deceased at Rs.10,000/- per month like an unskilled

worker.

10. It is the admitted position that said deceased was a

driver by profession. So, assuming that the deceased was a

driver and in the year 2021 by driving vehicles he could easily

earn Rs.400/- per day. So, taking into account the daily

income at Rs.400/- per day, the Tribunal ought to have

consider Rs.12,000/- per month as monthly income as a driver

on that relevant point of time. Thus, in my considered view,

the Tribunal below erred in deciding the monthly income of the

deceased at Rs.10,000/- per month being a driver. So, after

hearing both the sides, it appears that the Learned Tribunal

below committed error in deciding the monthly income of the

deceased. So, this Court after hearing both the sides comes to

the conclusion that the deceased during the year 2021 easily

could earn atleast Rs.400/- per day i.e. Rs.12,000/- per

month. So, his monthly income would be assessed to

Rs.12,000/-.

11. Situated thus, the amount of compensation be

recalculated as under:

(i) Monthly income: Rs.12,000/-

(ii) Rs.12,000 (monthly income) + Rs.4,800/- (40%

of future prospects)= Rs.16,800/-

(iii) 50% be deducted towards personal living

expense of the deceased from Rs.16,800/-. The same comes to

Rs.8,400/-. Thus, yearly income comes to Rs.8,400 x 12=

Rs.1,00,800/-.

(iv) With the aforesaid amount multiplier 18 be

allowed as per Sarla Verma & Ors. vs. Delhi Transport

Corporation & Anr. Thus, loss of dependency comes to

Rs.1,00,800/- x 18= Rs.18,14,400/-.

(v) With the aforesaid amount Rs.15,000/- be

added as loss of estate, Rs.15,000/- be added as funeral

expenses as per judgment delivered by the Hon'ble Supreme

Court of India in National Insurance Company Limited vs.

Pranay Sethi and Ors. and Rs.40,000/- be added as parental

consortium as per judgment of the Magma General Insurance

Company Ltd. vs. Nanu Ram, reported in (2018) SCC OnLine

SC 1546. Thus the claimant will be entitled to get

Rs.18,14,400/- (loss of dependency) + Rs.15,000/- (for funeral

expenses) + Rs.15,000/- (for loss of estate) + Rs.40,000/- (for

loss of parental consortium) = Rs.18,84,400/- as total amount

of compensation.