Tripura High Court
Smt. Minati Kalai vs Sri Laxmi Narayan Aggrawal on 8 October, 2024
HIGH COURT OF TRIPURA
AGARTALA
MAC.APP.No.59 of 2024
Smt. Minati Kalai,
wife of Sri Biswa Kalai
of 70, Kalaipara, Aatharamura Reserve Forest,
P.S. Mungiakami, Teliamura, Khowai District,
Tripura, 799205
----Claimant-Appellant(s)
Versus
1. Sri Laxmi Narayan Aggrawal,
son of Late, Shyam Lal Aggrawal,
of Dhanana, P.S. and District-Bhiwani,
Haryana (Owner of HR-61-A-5636 Truck),
Pin-127031
2. Sri Sujan Debnath,
son of Sri Bhajan Debnath,
of Lalchara, P.S. Kadamtala,
District-North Tripura,
(Driver of HR-61-A-5636 Truck)
Pin-799253
3. The New India Assurance Company Limited,
Mantribari Road, Agartala,
P.S. West Agartala, West Tripura,
Insurer of both the Vehicle bearing
No. HR-61-A-5636 Truck &
TR-01-Y-1655 Maxi Truck
4. Sri Madhu Kumar Debbarma,
Son of Sri Raj Kumar Debbarma,
Of Jalairung, P.S. Teliamura,
Bllaikang, P.O. Mungaikami,
District-Khowai, Tripura,
(Owner of TR-01-Y-1655 Maxi Truck)
Pin-799205
5. Sri Rajesh Debbarma,
son of Latte Purnaram Debbarma,
of Jalairung, P.S. Teliamura,
Bllaikang, P.O. Mungaikami,
District-Khowai, Tripura,
(Driver of TR-01-Y-1655 Maxi Truck)
Pin-799205
----Respondent (s)
For Appellant(s) : Mr. U.K. Majumder, Adv.
For Respondent(s) : Mr. K. Deb, Adv.
Date of Hearing : 07.10.2024
Date of Judgment
& Order : 08.10.2024
Whether fit for reporting : YES/NO
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
This appeal is preferred challenging the judgment and award
dated 05.12.2023 delivered by Learned Member, MACT, Tribunal No.4, West
Tripura, Agartala in connection with Case No.T.S.(MAC)140 of 2015. By the
said judgment and award, the Learned Tribunal below determined the amount
of compensation amounting to Rs.17,86,000/- with 9% interest from the date
of filing the claim petition i.e. on 30.05.2015 till the date of realization and
fastened the liability of payment of compensation upon the respondent OP
No.3 i.e. the New India Assurance Company Limited.
[2] Heard Mr. U.K. Majumder, Learned counsel appearing for the
appellant-claimant as well as Mr. K. Deb, Learned counsel appearing for the
respondent OP No.3 i.e. the New India Assurance Company Limited. None
appears on behalf of the other respondents.
[3] In course of hearing of argument, Mr. U.K. Majumder, Learned
counsel for the appellant-claimant drawn the attention of this Court that in
determining the amount of compensation Learned Tribunal below has failed to
appreciate properly the head "loss of future income" and determined the
monthly income of the appellant @ Rs.8000/- per month which was too less
because the claimant used to earn more than the amount awarded by the
Learned Tribunal. Moreso, the claimant-appellant sustained 100% disability
due to the alleged accident. Learned counsel for the appellant-claimant further
drawn the attention of the Court that the appellant-claimant incurred
expenditure for the purpose of treatment more than Rs.1,50,000/- but in
course of proceeding before the Learned Tribunal below, the appellant-claimant
could not submit those documents i.e. the prescriptions for which only
Rs.30,000/- was awarded for the purpose of purchasing of medicines.
[4] Learned counsel for the appellant-claimant further submitted that
for pain and sufferings the Learned Tribunal below only awarded Rs.1,00,000/-
which was too less. In addition to that, for the purpose of attendant charges a
sum of Rs.30,000/- was awarded, but the claimant incurred expenditure more
than the said amount and furthermore a sum of Rs.40,000/- was awarded for
travelling expenses but in this regard, the appellant-claimant sustained
expenditure more than Rs.1,00,000/- and towards special food, nutrition and
incidental expenses only Rs.50,000/- was awarded by the Learned Tribunal
below. So, Learned counsel for the appellant-claimant urged for the
interference of this Court by setting aside the judgment and award of the
Learned Tribunal below and to enhance the amount of award to the aforesaid
components for the sake of justice.
[5] On the other hand, Mr. K. Deb, Learned counsel for the
respondent OP No.3, i.e. the New India Assurance Company Limited submitted
that before the Learned Tribunal below the claimant only adduced cash memos
for the purpose of purchase of medicines only Rs.15,435/- but in spite of that
Rs.30,000/- was awarded for this purpose. In addition to that, Learned
Tribunal below awarded Rs.1,00,000/- for the purpose of pain and sufferings,
Rs.30,000/- towards attendant charges, Rs.40,000/- as travelling expenses in
absence of any cogent evidence on record and also awarded a sum of
Rs.50,000/- for food, nutrition and incidental expenses. So, there was no
infirmity in the judgment of the Learned Tribunal below. So, in summing up
Learned counsel for the respondent OP No.3 urged for dismissal of this appeal
with costs upholding the judgment and award delivered by the Learned
Tribunal below.
[6] In the case at hand, the appellant-claimant filed one claim
petition before the Learned Tribunal below under Section 166 of M.V. Act. The
gist of the claim petition was that on 28.01.2015 the appellant-claimant Smt.
Minati Kalai along with others were returning home by boarding on a goods
carrying vehicles namely Maxi Truck bearing No.TR-01-Y-1655 and when they
reached at Raihumsapara on National Highway at 2.30 p.m. that time another
Truck bearing No.HR-61-A-5636 came in high speed rashly and negligently and
dashed the said vehicle where the claimant boarded and as a result of which
the appellant-claimant along with others sustained injuries to their persons.
Immediately, the claimant was brought to Teliamura PHC wherefrom she was
referred to GBP Hospital at Agartala and at GBP Hospital she was admitted up
to 27.02.2015 and during that period her right hand was amputated and after
discharge from the hospital, she also took treatment from the OPD of the said
Hospital and consulted private Doctors. It was further submitted that the
monthly income of the appellant-claimant was Rs.10,500/- per month. Hence,
she filed the claim petition.
[7] The respondent OP Nos.1 & 2 being the driver and owner of the
offending Truck bearing registration No.HR-61-A-5636 did not appear
before the tribunal and as such, the proceeding was decided in their
absence. But the OP-Insurance Company appeared and contested the
same by filing written statement denying the assertions of the appellant-
claimant and submitted that the claim petition was subjected to strict
proof. The Insurance Company also challenged the driving license of the
OP No.2 i.e. the Driver. Upon the pleadings of the parties, Learned
Tribunal below framed two issues which are as follows:
"(1) Whether the claimant Smt. Minati Kalai sustained bodily
injury in a vehicular accident which alleged to have been
occurred on 28.01.2015 on National Highway at Raihumsapara
area under Mungaikami P.S. due to rash and negligent driving
of vehicle bearing registration No.HR-61-A-5636 (Truck) amd
TR-01-Y-1655 (Maxi Truck) by its drivers?
(2) Whether the claimant is entitled to get compensation. If
so, up to what extent and who shall be liable to pay the
same?"
[8] Before the Learned Tribunal, the claimant was examined as PW-1
and she adduced one witness namely Dr. Dipti Bikash Roy who was examined
as PW-2. The OP, Insurance Company adduced one witness and exhibited two
documents. For the sake of convenience, the details of the names of the
witnesses and the exhibited documents are mentioned herein below:
"Petitioner witnesses :
Smt. Minadti Kalai (PW-1).
Dr. Dipti Bikash Roy (PW-2).
Petitioner exhibits :
1) Certified copy of FIR, ejahar, seizure list, injury report and
charge sheet-Exbt.1 series.
2) Indemnity bond-Exbt.2.
3) Discharge summary of AGMC & GBP Hospital-Exbt.3.
4) Bills, vouchers, cash memos, ticket of G.B. Hospital etc.-Exbt.4
series.
5) Disability certificate-Exbt.5.
6) Insurance policy of the offending vehicle-Exbt.6.
Opposite party witness :
Sri Chiranjoy Bhattacharjee (OPW-1)
Opposite party exhibit :
1. Certified copy of insurance policy of vehicle No. HR-61-A-5636
(Ext.A,A/1).
2. Original verification report of investigator and DTO (Ext.B,B/1)."
[9] Finally, on conclusion of the proceeding, Learned Tribunal below
allowed the claim petition by the said judgment and award dated 05.12.2023.
The operative portion of the said judgment and award runs as follows:
"In the result, the application under section 166 of the M.V. Act,
1988 filed by the claimant, Smt. Minati Kalai is allowed on contest.
(i) The claimant is entitled to a sum of Rs.17,86,000/-
(Rupees seventeen lakhs eighty six thousand) only as
compensation in this case.
(ii) the amount of compensation shall carry interest @
9% per annum from the date of presentation of the claim
petition before the Tribunal on 30.05.2015 till realization.
(iii) Copy of this order so awarded to be served upon the
parties not later than 15 days from the date of this
award.
(iv) The case is disposed on contest.
(v) Enter the result."
Challenging that judgment, the claimant petitioner as appellant
has filed this appeal for enhancement of the award.
[10] I have heard arguments of both the sides and gone through the
records of the Learned Tribunal below as well as the judgment and award
delivered. It appears that before the Learned Tribunal the owner and driver of
the offending vehicle did not appear to contest the case of the appellant-
claimant, so the proceeding was decided in their absence. However, on the
basis of the evidence on record and relying upon the judgments of the Hon‟ble
Apex Court Learned Tribunal below allowed the claim petition but fastened the
liability of the payment of compensation upon the Insurance Company on the
principle of „pay and recover policy‟ and directed the Insurance Company to
pay the compensation to the claimant petitioner at first and thereafter to
recover the same either from the owner or the driver as the owner have not
taken reasonable care before the vehicle was taken from his possession by the
driver who did not have any valid driving license. Because it was the liability of
the owner or the driver to contest the proceeding and to substantiate that on
the alleged day of accident the driver had a valid driving license.
[11] Learned Tribunal below based on the evidence on record
determined the monthly income of the appellant-claimant at Rs.8000/- per
month and on the basis of evidence on record of PW-2 i.e. Dr. Dipti Bikash Ray
as well as the disability Certificate issued by the Board came to the conclusion
that the appellant-claimant sustained 100% disability and towards "loss of
future income" the Learned Tribunal below had awarded Rs.15,36,000/-. In
course of hearing of argument, Learned counsel for the appellant-claimant
failed to satisfy this Court regarding showing any cogent grounds to interfere
that amount awarded in favour of the appellant-claimant. So, I do not find any
scope to interfere with the said award in respect of "loss of future income" by
the Learned Tribunal below. Now, in respect of purchasing of medicines
Learned Tribunal below had awarded Rs.30,000/-. It appears that the claimant
before the tribunal only produced cash memos for an amount of Rs.15,435/-
but in support of contention the claimant could not adduce or prove any other
prescriptions to enhance the amount in this head. So, in my considered view
Learned Tribunal below rightly awarded Rs.30,000/- for the purpose of
purchasing of medicines to the appellant-claimant. Regarding attendant
charges it appears that Learned Tribunal below only awarded Rs.30,000/-. The
accident took place on 28.01.2015 and due to that accident the right hand of
the appellant-claimant was amputated. So, the appellant-claimant sustained
100% disability all though the Medical Board opined 85% disability. So,
considering the nature of injury sustained, it appears that Learned Tribunal
below awarded lesser amount towards attendant charges which should be at
least Rs.50,000/- and for the purpose of travelling expenses it appears that
the Learned Tribunal below awarded Rs.40,000/- but from the evidence on
record it appears that the petitioner at the time of filing the claim petition
shown her address at Kalaipara, Aatharamura Reserve Forest, P.S.
Mungiakami, Teliamura, Khowai District which is far away from AGMC & GBP
Hospital at Agartala. So, for her treatment when she was admitted in the
hospital definitely her near relatives time to time attended the to the hospital
for taking her care. So, considering the circumstances the family of the
appellant might have spent more amount that was awarded by the tribunal
below. In this regard it appears to this Court that a sum of Rs.60,000/- should
be awarded for the purpose of travelling expenses which the Learned Tribunal
below failed to do so. So, the said sum of Rs.60,000/- is awarded accordingly
towards attendant charges. In respect of food, nutrition and incidental
expenses it appears that the Learned Tribunal below awarded only Rs.50,000/-
which in my considered view the same should be Rs.1,00,000/-. Regarding
pain and sufferings the Learned Tribunal below only awarded Rs.1,00,000/-
which should be Rs.1,50,000/- because due to that accident, the right hand of
the appellant-claimant was amputated and she has became almost
permanently disabled. So, the appellant-claimant is entitled to get the
enhanced amount of Rs.1,40,000/-(Rs.20,000/+20,000/+50,000/+50,000/-)
along with interest from the Insurance Company in addition to the amount
already awarded.
[12] In course of hearing it was submitted by Learned counsel for the
Insurance Company that the amount of award has already been paid to the
appellant-claimant by the Insurance Company. So the balance amount be
given to the appellant-claimant by the Insurance Company within a period of
two months from the date of passing of this judgment. Thus the total
compensation including enhanced compensation comes to Rs.17,86,000/-+
Rs.1,40,000/-(enhanced amount)=Rs.19,26,000/-.
[13] At the time of delivery of judgment Learned Tribunal below relied
upon the judgment of the Hon‟ble Supreme Court of India in Raj Kumar
versus Ajay Kumar and Another reported in (2011) 1 SCC 343 wherein in
para No.6 the Hon‟ble 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
earnings on account of permanent disability, future medical
expenses, loss of amenities (and/or loss of prospects of marriage)
and loss of expectation of life."
[14] This Court also stands in averment with the same principle of law
laid down by the Hon‟ble Apex Court. Regarding „pay and recovery principle‟
the Learned Tribunal below also relied upon the judgment of the Hon‟ble
Supreme Court of India in United India Insurance Co. Ltd. Vs. Devinder
Singh, National Insurance Co. Ltd. Vs. Geeta Bhat and Others and Prem
Kumar and Others Vs. Pralhad Deb and Others and this Court also concurs
with the same principles of law laid down by the Hon‟ble Apex Court in the
aforenoted cases.
[15] In the result, the appeal filed by the appellant is hereby partly
allowed. The appellant-claimant is entitled to get a sum of Rs.19,26,000/-with
9% interest from the date of filing the claim petition to till the date of
realization. The amount already been paid by the Insurance Company to the
appellant-claimant be deducted from the awarded amount awarded by this
Court today and the balance enhanced amount should be deposited by the
respondent Insurance Company to the Learned Tribunal below within a period
of two months from the date of passing of this judgment.
The appeal is thus disposed of.
A copy of the judgment/order be furnished to Learned counsel of
both the sides free of cost.
Send down the LCR along with a copy of this judgment/order.
JUDGE
SABYASACHI BHATTACHARJEE
BHATTACHARJEE Date: 2024.10.09 14:29:56
+05'30'
Sabyasachi B
