Tripura High Court
The Divisional Manager vs Janu Begam on 30 April, 2025
HIGH COURT OF TRIPURA
AGARTALA
MAC APP No.54 of 2024
The Divisional Manager,
The Oriental Insurance Co. Ltd.
H.G.B. Road Agartala, West 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 Nrusing Home), Agartala,
West Tripura
----Appellant(s)
Versus
1. Janu Begam,
Wife of Late Sabek Miah
2. Main Uddin,
Son of Late Sabek Miah
3. Ambiya Begam Alias Ambiya Khatun,
Wife of Rustam Miah Alias Rustam Ali Miah
** As per the Hon'ble Court's order dated
18.09.2024 passed in IA No.2 of 2024, respondent
No.3 namely Ambiya Begam Alias Ambiya Khatun
be treated as substituted legal heir of deceased
respondent No.4 namely Rustam Miah Alias
Rustom Ali Miah and respondent No.4, Rustom
Miah Alias Rustom Ali Miah to be deleted from
the memo of appeal.
---- Claimant-Respondent(s)
4. Sri Kishore Debbarma,
Son of Shambhu Debbarma,
Resident of village:Chintaram Kobra Para,
P.O. Birendranagar, P.S. Jirania,
District: West Tripura,
(owner of Motor Bike No.TR01-S-4860 Achiever Motor Bike)
---- Respondent(s)
Along with
1.Janu Begam,
Wife of Late Sabek Miah
2.Main Uddin,
Son of Late Sabek Miah
3.Ambiya Begam Alias Ambiya Khatun,
Wife of Late Rustam Miah Alias Rustam Ali Miah
All are resident of Prafully Sarkar Para,
Jiraniakala, P.O. Birendranagar,
P.S. Radhapur, District: West Tripura
[The Cross objection No.2 being minor, is represented by his natural guardian mother i.e.
cross objector No.1]
----Cross-Objector
Versus
1. Shri Kishore Debbarma,
Son of Late Shambu Debbarma,
Village: Chinta Ram Cobra Para,
P.O. Birendranagar, PS Jirania,
District-West Tripura.
2. Oriental Insurance Company Limited Omaha,
Represented by its Divisional Manager,
Having its office at H.G. Basak Road,
Agartala, District: West Tripura
---- Respondent(s)
For Appellant(s) : Mr. Karnajit De, Adv.
For Respondent(s) : Mr. Tapash Datta Majumder, Sr. Adv.
Mr. Dalit Kalai, Adv.
For Appellant(s) : Mr. Tapash Datta Majumder, Sr. Adv.
Mr. Dalit Kalai, Adv.
For Respondent(s) : None
Date of hearing : 28.04.2025
Date of delivery of
Judgment & Order : 30.04.2025
Whether fit for
reporting : YES
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
Both the appeals bearing No.MAC APP No.54 of 2024
along with CO(FA) No.1 of 2025 are taken up together for
hearing and decision. The appeal bearing No.MAC APP No.54 of
2024 is preferred by the appellant insurance company and the
cross-objection under Order XLI Rule 22 of CPC is preferred by
the respondent-claimant petitioners for enhancement of the
award delivered by the Learned MAC Tribunal on 24.08.2023 in
TS(MAC)136 of 2018.
02. Heard Learned Counsel Mr. K. De appearing on
behalf of the appellant insurance company and also heard
Learned Senior Counsel Mr. T. D. Majumder assisted by Mr. D.
Kalai, Learned Counsel appearing on behalf of the respondent-
claimant petitioners in the MAC APP No.54 of 2024 and for the
claimant-objector in CO(FA) No.1 of 2025.
03. In course of hearing of argument Learned counsel
appearing for the appellant insurance company first of all drawn
the attention of the court referring para No.11 of the
judgment/award delivered by the MAC Tribunal and submitted
that at the time of delivery of award Learned Tribunal below
relied upon the judgment in Shamanna & Another vs.
Divisional Manager, Oriental Insurance Company Ltd. &
Others reported in AIR 2018 SC 3726 wherein it was
mentioned that if the driver does not possess valid driving
license then the insurer would be liable to pay compensation
and recover the same from the owner of the vehicle. But herein
the case at hand no driving license was produced because in
proving the case the OP owner of the motor bike bearing No.TR-
01-S-4860 adduced evidence as OPW-1 and the copy of
insurance policy certificate and form 24 (screen report) in
respect of the motor bike were produced by him which were
marked as Exbts.A and B in comparison with the originals. But
surprisingly before the Learned Tribunal no driving license of
the rider of the offending bike was produced. So the principle of
aforesaid citation of Shamanna and Another (supra) cannot
be applied in this case. Learned counsel further submitted that
the Tribunal below at the time of determination of award
determined the monthly income of the deceased at Rs.12,000/-
per month as a skilled worker. But nowhere the claimant
petitioner could prove that the deceased was a skilled worker
and as such the status of the deceased cannot be treated as
skilled worker and the Learned Tribunal below based on the
notification of the High Court determined the monthly income of
the deceased @Rs.12,000/- per month which should be not
more than Rs.10,000/-. So on the aforesaid two points Learned
counsel for the appellant urged before the court for interference
of the award and to modify the award accordingly.
04. On the other hand, Learned Senior Counsel, Mr. T.
D. Majumder assisted by Mr. D. Kalai, Learned Counsle
appearing for the respondent-claimant petitioners drawn the
attention of the court that the deceased was a worker of a
grill factory and his colleague who has appeared before the
Tribunal to depose as a witness as PW-3 very categorically
stated that the monthly income of the deceased was
Rs.20,000/- per month. But the Tribunal without any basis
and in absence of contrary evidence on record from the side
of the contesting opposite parties determined the monthly
income of the deceased @Rs.12,000/- per month which was
too less and it should be enhanced and accordingly he urged
before the court to interfere with the judgment and award
and to enhance the compensation awarded by the Learned
Tribunal below. It was further submitted by Learned Senior
Counsel that based upon the judgment of Shamanna &
Another (supra) Learned Tribunal below rightly made the
observation that the insurance company should pay the
compensation to the claimants and thereafter should recover
the amount from the owner of the vehicle towards 'Pay and
Recovery policy' and urged before the court for dismissal of
the appeal filed by the appellant insurance company. Here in
the case at hand the respondent-claimant petitioners
submitted one claim petition before the Learned Tribunal
below under Section 166 of MV Act alleging inter alia that on
03.03.2018 at about 4 p.m. the deceased Sabek Miah was
proceeding towards Champaknagar from Jirania ADC
Chowmuhani along with another person by riding his motor
cycle keeping left side of the road and when they reached at
Khamar Bari near S.S. brick field on Assam-Agartala road
that time the offending vehicle bearing registration No.TR-
01-S-4860 (motor bike) which was coming from the opposite
direction being driven in excessive speed rashly and
negligently dashed against said deceased Sabek Miah
resulting which deceased sustained multiple grievous injuries
on his head and other parts of his body. Immediately after
the accident deceased was first taken to Jirania Hospital from
where he was referred to AGMC and GBP Hospital where the
attending doctor declared him as dead and on the following
day post-mortem was conducted on the dead body of the
deceased. It was asserted that the accident took place due to
rash and negligent driving by the rider of the motor bike
bearing No.TR-01-S-4860. It was further submitted that at
the time of accident the deceased was a welder and was
earning Rs.20,000/- per month and at the time of death he
was 28 years of old. So the claimant-petitioners filed the
claim petition. The OP owner No.1 contested the case by
filing the written statement denying the assertions made by
the petitioners in the claim petition and further submitted
that on the alleged day the vehicle was duly insured with the
Oriental Insurance Company bearing Policy
No.322796/31/2018/685 covering the period with effect from
04.07.2017 to 03.07.2018. So the OP owner took the plea
that if any liability arises for making payment of
compensation to the claimant-petitioners that should be
borne by the insurance company. The OP No.2 is the
Insurance Company in the claim petition contested the same
by filing another written statement denying the assertions of
the claimant-petitioners in the claim petition and further
submitted that on the alleged day the rider of the motor bike
had no driving license and the age, income of the deceased
was also disputed and finally submitted that the claim
petition was subjected to strict proof by the petitioners.
05. Upon the pleadings of the parties Learned Tribunal
below framed the following issues:
(I) Whether the victim Sabek Miah expired due to a road
traffic accident on 03.03.2018 at Khamarbari near SS Brick
Field under PS Jirania?
(II) Whether the accident occurred due to rash and
negligent riding of the motor bike bearing No.TR01-S-
4860?
(III) Whether the petitioners are entitled to get
compensation in this case? If so, what would be the
amount of compensation and who shall be held liable for
making the compensation to the claimant petitioners?
06. To substantiate the issues the claimant-petitioners
and the OP owner have adduced oral/documentary evidence on
record and finally on conclusion of enquiry the Learned Tribunal
passed the judgment/award.
Witnesses of the claimant-petitioners:
(i)PW-1: wife of the deceased
(ii) PW-2: Krishna Debnath
(iii)PW-3: Oab Miah
Documents relied upon by the claimant-petitioners:
(i)Exbt.1(i) to 1(xv): certified copy of FIR, ejahar, seizure
lists, Surath Hal report, post-mortem report, 161
statements and charge-sheet in connection with Jirania PS
case No.18 of 2018 in 15 sheets
(ii) Exbt.2: original copy of post-mortem certificate
(iii)Exbt.3: original death certificate of deceased Sabek Miah
(iv)Exbt.4: original PRTC certificate as Exbt.4
On the other hand the OP owner was examined as
OPW-1 and he relied upon two documents which were marked
as Exbt.A as copy of insurance policy certificate and Form 24
(screen report) in respect of the motor bike bearing No.TR-01-
S-4860 as Exbt.B. But no driving license is produced by the OP
owner in respect of the rider of the offending motor bike. Even
there was no evidence on record that the rider has/had any
prior driving license.
07. Finally on conclusion of enquiry Learned Tribunal
below allowed the claim petition. The operative portion of the
judgment/award runs as follows:
"13. The instant application under Section-166 of the
Motor T. S.(MAC) 136 of 2018 12/13 Vehicles Act, 1988
filed by the claimant-petitioners is hereby partly allowed
and a sum of Rs.27,60,400.00 (Rupees Twenty seven lakhs
sixty thousand and four hundred) only is awarded in
favour of claimant - petitioners as compensation for the
death of Sabek Miah, in a Road Traffic Accident, as
aforesaid, and thus whole amount of compensation shall
be paid by OP No.2, the Oriental Insurance Co. Ltd., 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 21.08.2018 till the date of
payment.
14. Out of the said amount i.e., Rs.27,60,400.00 (Rupees
Twenty seven lakhs sixty thousand and four hundred), a
sum of Rs.6,90,100.00 each with proportionate interest,
shall be paid to claimantpetitioner No.3 and 4, the parents
of the deceased. An amount of Rs.6,90,100.00 with
proportionate interest, shall be paid to the minor son of
the deceased, i.e., claimant-petitioner No. 2. The rest
amount of Rs.6,90,100.00 with proportionate interest,
shall be paid to the spouse of the deceased, i.e., claimant-
petitioner No.1.
15. In the event of deposit of the Awarded amount with
interest, Rs.90,000.00 each shall be released in favour of
each of the claimant-petitioner Nos.1, 3 and 4 out of their
respective shares, in their respective bank accounts for
enabling them to meet necessary expenses and the rest
amount shall be kept in numbers of fixed deposit schemes
of maximum Rs.2,00,000.00 each in any Nationalized Bank
for five years in their name separately as per their share.
However as claimant-petitioner No.2 is minor so his entire
share along with proportionate interest, shall be kept in a
fixed deposit scheme in a Nationalized Bank for a period of
five years or for the period till attainment of his majority,
whichever is later. However, the interest out of fixed
deposit to be credited shall be disbursed monthly to the
respective account of the petitioner No.1,3 and 4. The
monthly interest out of fixed deposit for petitioner No.2
shall be credited to the account of petitioner No. 1 for the
purpose of necessary T. S.(MAC) 136 of 2018 13/13
expenditure to be incurred for Op No. 2.
16. 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.
17. Let a copy of this Award be furnished to the parties
through their Ld. Counsels, for information.
18. The case is thus disposed of on contest. Enter the
result in the relevant Register."
08. Challenging that judgment and award the
appellant insurance company has preferred this appeal and on
the other hand the claimant-petitioners as cross-objectors have
preferred the cross-objection under Order XLI Rule 22 for
enhancement of the award.
09. As already stated, at the time of hearing of
argument Learned Senior Counsel Mr. T. D. Majumder drawn
the attention of the court that although the deceased had
monthly income of Rs.20,000/-, but the Tribunal only
determined the monthly income of deceased as a skilled worker
@Rs.12,000/- per month. Now let us see the evidence on
record in this regard. PW-1 Janu Begam is the wife of the
deceased. She in her examination-in-chief reiterated her
submission made in the claim petition and relied upon the
documents which were marked as Exbt.1(i) to 1(xv), Exbt.2,
Exbt.3 and Exbt.4. During cross-examination by OP No.1 save
and except denial nothing came out relevant. Further during
cross-examination by the insurance company she stated that
she did not see the alleged accident and also she did not
produce any driving license of her deceased husband nor she
produced any document showing monthly income of her
deceased husband.
10. PW-2, Krishna Debnath deposed that he knew the
deceased who died on 03.03.2018 at Khamarbari. He further
deposed that he is also Welder by profession working in a grill
factory and during lifetime Sabek Miah, the deceased and the
witness himself were working together as Welder in the Grill
factory belonging to one Pradip Paul of Jirania Khala and
deceased Sabek Mia also part time worker in another workshop
belonging to one Una Mia of Jirania Block Chowmuhani. He
stated that from the grill factory of Pradip Paul deceased Sabek
Miah used to earn Rs.12,000/- per month and as a part time
worker in the workshop of Una Miah deceased Sabek Miah also
used to earn Rs.8,000/- per month and in total he used to earn
Rs.20,000/- per month. He also stated that the deceased Sabek
Miah was very energetic person and skilled Welder. During
cross-examination by the OP owner save and except denial
nothing came out relevant. During cross-examination by the
insurance company he stated that he did not produce any
certificate to show that he used to work in the grill factory of
Pradip Paul and he did not produce any document in support of
monthly income of the deceased.
11. PW-3 in his examination-in-chief tried to support
the version of the claimant-petitioners. During cross-
examination he stated that the alleged accident occurred on the
National Highway. Nothing more came out relevant.
12. Kishore Debbarma is the OP No.1 in the main
case. In his examination-in-chief he tried to support the version
made in the written statement and also relied upon the
documents which were marked as Exbts.A and B. During cross-
examination by the claimant-petitioners and the insurance
company nothing came out relevant.
These are the material evidence on record of the
claimant-petitioners and OP No.1 in respect of determination of
the points framed by the Learned Tribunal below.
13. I have heard argument of both the sides and
perused the judgment delivered by the Learned Tribunal below.
It appears to this court that admittedly in this case no income
certificate of the deceased could be produced by the claimant-
petitioners before the Tribunal. Learned Tribunal below at the
time of determination of award based upon the notification of
the High Court of Tripura dated 04.08.2023 determined the
monthly income of the deceased as a skilled worker
@Rs.12,000/- per month and with that amount Learned
Tribunal below added 40% as future prospect relying upon the
judgment in National Insurance Co. Ltd. Vs. Pranay Sethi
reported in AIR 2017 SC 5157 and also relied upon the
judgment of Smt. Sarla Verma & Ors. vs. Delhi Transport
Corporation & Anr. reported in (2009) 6 SCC 121 and
deducted 1/4th towards the personal and living expenses of the
deceased and determined the yearly income of the deceased
@Rs.1,51,200/- and with that amount he added multiplier 17 as
per Sarla Verma (supra) and finally determined the loss of
dependency amounting to Rs.25,70,400.00/- and with that
amount he also added Rs.15,000/- towards loss of estate,
Rs.15,000/- towards funeral expense as per the judgment
rendered by the Hon'ble Supreme Court in Pranay Sethi
(supra) and also awarded Rs.80,000/- towards loss of filial
consortium and further awarded Rs.1,60,000/- towards loss of
spousal consortium, parental consortium etc. Thus the Tribunal
determined the total amount of compensation amounting to
Rs.27,60,400.00/- and ordered for payment of compensation to
the claimant-petitioners and as such from the judgment and
award of the Learned Tribunal below it appears to me that
Learned Tribunal below did not commit any error or wrong in
determination of the aforesaid amount of compensation in
favour of the claimant-petitioners. The citation as referred by
Learned Tribunal below seems to be inappropriate. In this
regard Hon'ble the Supreme Court of India in National
Insurance Co. Ltd. Vs. Swaran Singh and Others reported
in (2004) 3 SCC 297 in para Nos.110(iii, iv & v) observed as
under:
"110. The summary of the findings to the various issues as
raised in these petitions is as follows:
(iii) The breach of policy condition e.g., disqualification of
driver or invalid driving licence of the driver, as contained
in sub-section (2)(a)(ii) of section 149, have to be proved
to have been committed by the insured for avoiding
liability by the insurer. Mere absence, fake or invalid
driving licence or disqualification of the driver for driving
at the relevant time, are not in themselves defences
available to the insurer against either the insured or the
third parties. To avoid its liability towards insured, the
insurer has to prove that the insured was guilty of
negligence and failed to exercise reasonable care in the
matter of fulfilling the condition of the policy regarding
use of vehicles by duly licensed driver or one who was not
disqualified to drive at the relevant time.
(iv) The insurance companies are, however, with a view to
avoid their liability must not only establish the available
defence(s) raised in the said proceedings but must also
establish 'breach' on the part of the owner of the vehicle;
the burden of proof wherefor would be on them.
(v) The court cannot lay down any criteria as to how said
burden would be discharged, inasmuch as the same would
depend upon the facts and circumstance of each case."
14. From the aforesaid observation of the Hon'ble
Apex Court it appears that in absence of driving license also
there is scope to award compensation with 'Pay and Recover
policy'. Situated thus, it appears that Learned Tribunal below
rightly fastened the liability of payment of compensation upon
the insurance company. From the evidence of the respondent-
claimant petitioners it appears that they could not produce any
documentary evidence regarding monthly income of the
deceased @ Rs.20,000/- per month. However, the Learned
Tribunal below based on the notification of this High Court
determined the monthly income of the deceased @ Rs.12,000/-
per month as a skilled worker. No contrary evidence in this
regard could be laid by the objectors to disbelieve the same. So
it appears to this court that by the said judgment/award no
irregularity and illegality has been committed by the Learned
Tribunal below for which the interference of the court is
required. Situated thus, after hearing both the sides it appears
to me that there is no merit in the appeal filed by the appellant
and there is also no merit in the cross-objection filed by the
respondent-claimant-petitioners as objector for which both the
appeal and the cross-objection are liable to be dismissed.
14. In the result, the appeal filed by the appellant,
insurance company stands dismissed being devoid of merit and
at the same time the CO(FA)No.1 of 2025 filed by the claimant-
petitioners as objectors also stands dismissed being devoid of
merit for want of cogent evidence on record. The judgment and
award delivered by the Learned Motor Accident Claims Tribunal
No.2, West Tripura, Agartala in connection with Case
No.T.S.(MAC)136 of 2018 stands upheld and accordingly the
same stands affirmed. The appellant insurance company be
asked to deposit the compensation to the Learned Tribunal
below within a period of six weeks from the date of delivery of
judgment.
With this observation the appeal and the cross-
objection are stands disposed of accordingly.
Send down the LCR along with a copy of this
judgment and award to the Learned Tribunal below.
A copy of this judgment be given to the Learned
Counsel Mr. K. De appearing for the appellant, insurance
company free of cost for information and compliance and also a
copy of this judgment be supplied to Learned Senior Counsel
Mr. T. D. Majumder appearing on behalf of the respondents.
Pending application(s), if any, also stands
disposed of.
JUDGE
MOUMITA Digitally signed by
MOUMITA DATTA
DATTA Date: 2025.05.03
00:01:41 +05'30'
Moumita
