Tripura High Court
The Branch Manager vs Smt Nisha Nath on 7 November, 2024
HIGH COURT OF TRIPURA
AGARTALA
MAC App. No.35 of 2024
The Branch Manager,
The Oriental Insurance Company Ltd.
Dharmanagar Branch, Raj Bari, Dharmanagar,
District- North Tripura,
A Company registered under the Companies Act, 1956,
Represented by the Assistant Manager cum Officer in
Legal Hub / Authorized Signatory, Agartala, Division
Office, H.G.B. Road, (Near Sarkar Nursing Home),
Agartala, West Tripura.
....Appellant
Versus
1. Smt Nisha Nath
W/O- Late Arabindu Nath, aged about 44 years
2. Master Arjun Debnath,
S/O- Late Arabindu Nath, aged about 17 years
3. Master Udoy Nath
S/O- Late Arabindu Nath, aged about 12 years
4. Master Banu Nath
S/O- Late Arabindu Nath, aged about 06 years
(The Claimants No.2, 3 and 4 are minors and being represented by
their natural guardian mother namely Smt. Nisha Nath, being the
claimant No.1).
(All are residents of Village-Bursingpara, Laljuri, PS- Kanchanpur,
District- North Tripura)
....Claimants-Respondents
5. Shri Ranadhir Nath
Son of Late Rangadeb Nath
of Netajinagar, PS-Kanchanpur,
District- North Tripura.
(Owner cum driver of vehicle bearing registration No.TR-
02B-3562)
....Respondent
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For Appellant(s) : Mr. B. Majumder, Adv.
For Respondent(s) : Mr. Alik Das, Adv.
Date of Hearing : 04.11.2024
Date of delivery of
Judgment and Order : 07.11.2024
Whether fit for
Reporting : NO
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
This is appeal under Section 173 of M.V. Act is
preferred challenging the judgment and award dated
22.03.2023 delivered by Learned Member, Motor Accident
Claims Tribunal, North Tripura, Dharmanagar in connection
with case No. T.S. (MAC) 31 of 2018. By the said judgment
and award, Learned Tribunal below has awarded a sum of
Rs.10,82,000/- and fastened the liability for payment of
compensation upon the Insurance Company i.e. the present
appellant.
02. Heard Learned Counsel, Mr. B. Majumder
representing the appellant-Insurance Company and also heard
Learned Counsel, Mr. Alik Das representing the claimant-
respondents but none appeared on behalf of the respondent-
owner-cum-driver of the offending vehicle bearing registration
No.TR-02B-3562.
03. In course of hearing of argument, Learned Counsel
for the appellant first of all drawn the attention of the Court
that the Learned Tribunal below at the time of delivery of
Page 3 of 12
judgment did not frame proper issues for which the judgment
and award suffers from infirmities. Learned Counsel further
submitted that relevant documents of the offending vehicle
were not properly produced and marked for exhibits by the
owner before the Learned Tribunal but the Learned Tribunal
below ignoring the same delivered the judgment for which the
judgment cannot be sustained in the eye of law.
It was further submitted that before the Tribunal the
offending driver who drove the vehicle on the alleged day of
accident was not made as party, for which the judgment
suffers from non-joinder of necessary parties. Further Learned
Counsel also submitted that from the contents of the claim-
petition, it is clear that the offending vehicle had driven more
than the permitted passengers as per permit and thus violated
the terms and conditions of the policy of insurance and as such
no liability could be fastened upon the Insurance Company, but
the Learned Tribunal below at the time of delivery of judgment
did not consider the same for which the interference of the
Court is required and urged for allowing this appeal by setting
aside the judgment of the Learned Tribunal below.
04. On the other hand, Learned Counsel for the
claimant-respondents submitted that before the Learned
Tribunal below the respondent-claimants adduced
oral/documentary evidence on record in support of their claim.
So, there was no infirmity in the judgment of the Learned
Page 4 of 12
Tribunal below and furthermore, Learned Counsel for the
claimant-respondents submitted that before the Tribunal the
present appellant did not adduce any oral/documentary
evidence on record in support of their defence, as such the
points raised by Learned Counsel for the appellant cannot be
accepted at this stage and urged for dismissal of this appeal
with costs.
05. In the case at hand, the respondent-claimants filed
one application under Section 166 of M.V. Act before the
Learned Tribunal below seeking compensation amounting to
Rs.21,03,334/- due to sudden death of Arabindu Nath in a
motor accident which took place on 05.03.2018 at about 14.00
hours on Kanchanpur-Joyshree road near Joyshree H.S.
School. The brief contents of the application filed by the
respondent-claimants was in short is that on 05.03.2018 at
about 14.00 hours when the deceased Arabindu Nath went to
Laljuri market along with some other political persons of ruling
Bharatiya Janata Party for attending a procession and while he
along with others boarded in a vehicle bearing registration
No.TR-02B-3562 for proceeding towards Joyshree and as soon
as the vehicle reached nearby Joyshree School, that time the
driver due to his rash and negligent driving lost his control over
the vehicle and the vehicle was capsized on the road and the
accident took place. As a result of which Arabindu Nath
sustained severe injury on the orbital area of his forehead and
other parts of the body. Later on, the members of the said
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procession rescued him from the place of occurrence and
shifted him to the Kanchanpur Government Hospital where the
attending doctor declared him as dead. On the same day, post-
mortem examination was conducted over the dead body of said
Arabindu Nath.
It was further stated by the respondent- claimants
that the deceased was a cultivator by profession and was also
a business man and at the time of death, he was aged about
51 years and used to earn Rs.15,000/- per month. Hence, the
respondent-claimants filed the claim-petition. On receipt of
claim-petition, notices were served upon the opposite parties
from the Tribunal and both the opposite parties appeared and
contested the claim by filing written statement denying the
averments made in the claim-petition.
The O.P. No.1 in the written statement submitted
that on the alleged day of accident the vehicle had valid
insurance policy with the opposite party No.2, i.e. the Oriental
Insurance Company Limited, the appellant herein, vide policy
No.322790/31/2018/310 which was valid from 27.04.2017 to
26.04.2018 and the vehicle had other documents like
certificate of registration, tax token, permit, certificate of
fitness, driving licence etc. So, by the written statement the
O.P. No.1 took the plea that if any liability arises that should
borne by the Insurance Company.
The O.P. No.2 i.e. the present appellant in the
written statement denied the contents of the claim-petition and
Page 6 of 12
submitted that the claim-petition is subjected to strict proof by
the respondent-claimants. The Learned Tribunal below upon
the pleadings of the parties framed the following issues:
(i) Whether the suit is maintainable?
(ii)Whether the injured-deceased namely
Arabindu Nath sustained any injury due
to any motor vehicular accident which
took place on 05-03-2018 at about 14.30
hours at Kanchanpur-Jayashree Road
near Jayshree Class XII School due to
rash and negligent driving of the
offending driver of TR-02B-3562
(Mahindra Bolero) ?
(iii) Whether the claimant is entitled to
get compensation and if so, what would
be the quantum of compensation and
who shall be liable to pay the
compensation amount?
(iv) Any other relief/reliefs as the
claimant petitioners are entitled to?
06. To substantiate the issues both the parties have
adduced oral/documentary evidence on record:
Witnesses of Claimant-respondents:-
PW1 - Smt. Nisha Nath
PW2- Sri Srikanta Debnath
Exhibits of PW1:-
(1) Certified Copy of Printed FIR form in
two sheets as Exhibit-1(as a whole).
(2) Certified copy of written 'Ejhar of
Anamika Nath in two sheets marked as
Exhibit2(as a whole).
(3) Certified copy of the seizure list
dated 05.03.2018 in one sheet marked as
Exhibit-3 (as a whole).
(4) Certified copy of seizure list dated
12.03.2018 in one sheet marked as
Exhibit-4 (as a whole).
(5) Certified copy hand ketch map dated
05.03.2018 marked as Exhibit-5 (as a
whole).
(6) Certified copy of index of the hand
sketch map marked as Exhibit-6 (as a
whole).
(7) Statement under Section 161 of
Cr.P.C of Sri Srikanta Debnath marked as
Exhibit7 (as a whole).
Page 7 of 12
(8) Certified copy of Postmortem report
of Arabinda Nath in five sheets marked
as Exhibit-8 (as a whole).
(9) Certified copy of Final Report in
connection with case Kanchanpur PS
case No. 2018 KCP 13 in two sheets
marked as Exhibit-9 (as a whole).
(10) Xerox copy of Aadhaar Card of Smt.
Nisha Nath marked as Exhibit-10 (as a
whole).
(11) Xerox copy of Aadhaar Card of Banu
Nath marked as Exhibit-11 (as a whole).
(12) Xerox copy of Aadhaar Card of
Arjun Debnath marked as Exhibit-12 (as
a whole).
(13) Xerox copy of Aadhaar Card of Uday
Nath marked as Exhibit-13(as a whole).
(14) Xerox copy of Aadhaar Card of
Arabindu Nath marked as Exhibit-14 (as
a whole).
(15) Xerox copy of Death Certificate of
Arabindu Nath marked as Exhibit-15 (as
a whole).
O.P. Witness:-
O.P.W 1 - Sri Ranadhir Nath
Exhibits of OPW1:-
(a) Copy of the fitness certificate vehicle
bearing registration No. TR-02B3562
marked as Exhibit-A.
(b) Copy of insurance policy vehicle
bearing registration No. TR-02B-3562
marked as Exhibit-B.
(c) Copy of registration certificate
vehicle bearing registration No. TR-
02B3562 marked as Exhibit-C.
(d) Copy of contract carriage permit
vehicle bearing registration No. TR-
02B3562 marked as Exhibit-D.
(e) Copy of pollution under control
certificate of vehicle bearing registration
No. TR-02B-3562 marked as Exhibit-E.
(f) Copy of driving license of Sri Ranadhir
Nath issued on 15-06-2016 and valid till
(T) 09-10-2020 and valid till (NT) 09-04-
2025 marked as Exhibit-F.
07. Finally on conclusion of the proceeding Learned
Tribunal below allowed the claim-petition filed by the
respondent-claimant-petitioners and awarded a sum of
Rs.10,82,000/- as already stated. For the sake of convenience
Page 8 of 12
the operative portion of the judgment/award dated 22.03.2023
runs as follows:
ORDER
"17. In view of the above discussion and
findings, the application under Section 166 of
the Motor Vehicles Act, 1988 filed by the
claimants is allowed on contest.
The Opposite Party No.2, The Branch
Manager, Oriental Insurance Company Ltd.
Rajbari, Dharmanagar, North Tripura shall pay
the compensation of Rs.10,82,000/- (Rupees
ten lakh eighty two thousand two hundred)
only to the claimants within a period of 30
days from this day of award. This award of
compensation shall carry interest at the rate
of 5% per annum from the date of
presentation of the claim petition before this
Tribunal i.e. 14-11-2018 till the realization.
The share of the claimant-petitioner no.1,
Smt. Nisha Nath will be (Rs.2,60,500/- +
Rs.40,000/-) = Rs.3,00,500/- with accrued
interest.
The share of the claimant-petitioners no.
2, 3 and 4 namely Sri Arjun Debnath, Master
Udoy Nath and Master Banu Nath will be
Rs.2,60,500/- (Rupees two lakh sixty
thousand five hundred) only each with
accrued interest.
18. Keeping in mind the guidelines of Hon'ble
Apex Court in General Manager, Kerala State
Road Transport Corporation, Trivandam Vs.
Ms. Sushama Thomas and others (AIR 1994
SC 1631) and the guidelines as laid down in
Union Carbide Corporations case (1991) 4 SCC
584 and subsequent decision of the Hon'ble
High Court of Tripura in case no. MAC
Application 36 of 2006 Joydeep Chakraborty
Vs. Pintu Sharma and another since the
claimant petitioners no. 2, 3 and 4 are minors,
it is ordered that the share of the minors
together with interest shall be fixed in a long
tern fixed deposit scheme at least for a period
of six years or till they attain their majority in
their respective names in any Nationalized
Bank. No loan or other advances in any form
shall be allowed on such fixed certificates
without the express permission of this
tribunal.
The share of the claimant-petitioner no.1,
Smt. Nisha Nath shall be released in her
favour by transmitting it directly to her
savings bank account to allow her to meet the
expenditure of their livelihood which she
might have incurred for the death of the
deceased.
Supply a copy of the judgment to the
claimant-petitioners and a copy of the
judgment shall also be communicated to the
Opposite Party No.2, The Branch Manager,
Oriental Insurance Company Ltd. Rajbari,
Dharmanagar, North Tripura to facilitate the
payment of the awarded compensation in
time.
Thus, the instant claim petition is
disposed off on contest."
Challenging the judgment and award, this present
appeal is preferred.
08. I have gone through the judgment and award
delivered by the Learned Tribunal below and also perused the
record of the Learned Tribunal below. It appears that although
the respondent-claimant-petitioners alleged that the deceased
used to earn Rs.15,000/- per month but in absence specific
evidence on record Learned Tribunal below determined the
monthly income of the deceased at Rs.10,000/- per month as
the accident took place during the year 2018. Before this
Court, the appellant also did not submit anything regarding
determination of monthly income at the rate of Rs.10,000/- by
the Tribunal below nor they adduced any contrary evidence on
record to disbelieve the amount of monthly income determined
by the Learned Tribunal below.
09. Admittedly in this case, the O.P. No.1 was the
driver-cum-owner of the vehicle on the day of alleged accident.
So, the plea taken by the Learned Counsel for the appellant
that the driver was not made a party in the claim-petition is
not correct and cannot be accepted.
10. On perusal of the judgment, further it appears that
Learned Tribunal below at the time of delivery of judgment
determined the monthly income of the deceased at the rate of
Rs.10,000/- per month and with that amount added 15% as
future prospects and calculated the monthly income of the
deceased for the purpose of claim-petition at Rs.11,500/- and
thereafter, deducted one third (1/3rd) of this personal income
since the deceased was a married person and was aged about
51 years and relying upon the judgment of the Tilak
Chandra's case determined multiplier 11 and after calculation
determined Rs.10,12,000/- under the head "loss of income"
and awarded the said amount and also, added Rs.15,000/- as
loss of estate, Rs.40,000/- as loss of consortium and
Rs.15,000/- as funeral expenses. Thus, finally, the Learned
Tribunal below calculated the total amount of compensation at
Rs.10,82,000/- and with that amount awarded 5% simple
interest from the date of filing the claim-petition to till the date
of realization.
11. Thus, after going through the judgment and award
delivered by Learned Tribunal below, it appears that Learned
Tribunal below after considering the oral/documentary
evidence on record and also after relying upon the judgment
delivered by the Hon'ble Supreme Court of India in National
Insurance Company Limited vs. Pranay Sethi and Ors.
dated 31.10.2017 in SLP (Civil) No.25590 of 2014, finally
determined the aforesaid amount with interest as
compensation on the claim-petition filed by the respondent
claimant-petitioners and from the contents of the judgment, it
appears that Learned Tribunal below rightly and reasonably
after considering all the factors properly determined the
amount of compensation for which this Court does not find any
scope to interfere with the judgment and award delivered by
the Learned Tribunal below. The points of argument as raised
by Learned Counsel for the appellant in course of hearing does
not have any credence to decide this present appeal and those
points as raised by Learned Counsel for the appellant are not
supported by any cogent materials on record and as such the
present appeal is liable to be dismissed henceforth.
From the side of the respondent-claimants also
there was no cross-objection on the amount of award delivered
by the Learned Tribunal below. So, the present appellant is
liable to be paid the award of compensation to the respondent-
claimants as on the day of alleged accident the vehicle had
valid insurance policy coverage under the present appellant
and the owner-cum-driver had valid driving licence to drive the
vehicle on the alleged day.
12. In the result, the appeal filed by the appellant
stands dismissed being devoid of merit. The judgment and
award delivered by the Learned Tribunal below dated
22.03.2023 in connection with case No.T.S.(MAC) 31 of 2018 is
hereby upheld and accordingly, it is affirmed. The appellant is
hereby asked to pay 50% amount of compensation along with
interest as per judgment of the Learned Tribunal below to the
Registry of this High Court within a period of six (06) weeks
from the date of delivery of the judgment as the appellant-
Insurance Company on 28.08.2024 has already deposited 50%
of the award of compensation to the Registry of High Court.
A copy of this judgment/order be supplied to
Learned Counsel for the appellant for information and
compliance. With this observation, this appeal stands disposed
of.
Send down the LCR along with a copy of the
judgment/order.
Pending application(s), if any, also stands disposed
of.
JUDGE
MOUMITA Digitally signed by
MOUMITA DATTA
DATTA Date: 2024.11.08 16:30:20
+05'30'
Purnita
