Tripura High Court
Smt. Kalpana Debbarma vs Sri Krishnendu Dey on 23 April, 2025
HIGH COURT OF TRIPURA
AGARTALA
MAC App. No.85 of 2024
Smt. Kalpana Debbarma, aged about 57 years,
wife of Sri Tilak Bashi Debbarma, resident of
Anandapur, P.O.-Mohanbhog,P.S.-Melaghar,
District-Sepahijala, Tripura, at present residing at-
C/o Sri Jadumani Debbarma, village-Krishna Mohan Kobra Para,
P.O.-Lembucherra, P.S.-Lefunga, District-West Tripura.
----Appellant(s)
Versus
1. Sri Krishnendu Dey,
son of Sri Lal Mohan Dey,
resident of village & P.O.-Mag Puskurini,
P.S.-Kakraban, District-Gomati, Tripura
(Owner of the offending vehicle bearing registration No.TR-03-F-
1516 (Bolero Maxx).
2. Chief Grievance Redressal Officer,
MAGMA HDI General Insurance Co. Ltd.
Office No.516 & 517,5th Floor, Neelkanth Corporate Park,
Plot No.240, 240/1-8, Kirol Road, Vidya Bihar (West),
Mumbai, Maharastra-400086
(Insurer of the offending vehicle bearing registration No.TR-03-F-
1516 (Bolero Maxx)
---- Respondent(s)
Along with
MAC App. No.127 of 2024
Magma HDI, General Insurance Company Ltd.,
Represented by its General Manager,
Magma House, 24 Park Street,
Kolkata-700016, West Bengal.
Local office at Netaji Chowmuhani,
within the building of HDFC Bank,
P.O. Agartala, P.S. West Agartala,
District: West Tripura, PIN-799001.
(Insurer of Bolero Maxx bearing No.TR-03-B-1805)
----Appellant(s)
Versus
1. Smt. Kalpana Debbarma,
W/o Sri Tilak Bashi Debbarma,
Resident of Anandapur, P.O-Mohanbhog,
P.S. Melaghar, District-Sepahijala, Tripura.
At present residing at
C/o Sri Jadumani Debbarma,
Page 2 of 16
Village-Krishna Mohan Kobra Para,
P.O. Lembucherra, P.S. Lefunga,
District-West Tripura.
----Claimant Respondent(s)
2. Sri Krishnendu Dey,
Son of Sri Lal Mohan Dey,
village & P.O.-Mag Puskurini,
P.S.-Kakraban, District-Gomati, Tripura
(Owner of the vehicle bearing registration No.TR-03-F- 1516
(Bolero Maxx).
---- Respondent(s)
In MAC App. No.85 of 2024
For Appellant(s) : Mr. Biplab Debnath, Adv.
For Respondent(s) : Mr. Anjan Kanti Pal, Adv.
Mr. Rajib Saha, Adv.
In MAC App. No.127 of 2024
For Appellant(s) : Mr. Rajib Saha, Adv.
For Respondent(s) : Mr. Biplab Debnath, Adv.
Mr. Anjan Kanti Pal, Adv.
Date of hearing : 17.04.2025
Date of delivery of
Judgment & Order : 23.04.2025
Whether fit for
reporting : NO
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
Both the appeals are taken up together for
hearing and disposal since both the appeals have arisen out of a
common judgment and award dated 26.06.2024. The MAC App.
No.85 of 2024 is preferred by the appellant-claimant petitioner
for enhancement of the award made by the Learned Tribunal
below vide judgment and award dated 26.06.2024 and the MAC
App. No.127 of 2024 is preferred by the respondent-Insurance
Page 3 of 16
Company as appellant challenging the said judgment and award
dated 26.06.2024 delivered by Learned Member, MACT,
Tribunal No.1, West Tripura, Agartala in connection with T.S.
(MAC) No.173 of 2020 for modification of the award.
2. Heard Learned Counsel, Mr. Biplab Debnath
appearing on behalf of the appellant-claimant petitioner in MAC
App. No.85 of 2024 and on behalf of the respondent-claimant
petitioner in MAC App. No.127 of 2024. Also heard Learned
Counsel, Mr. Rajib Saha appearing on behalf of the respondent-
Insurance Company in MAC App. No.85 of 2024 and appellant in
MAC App. No.127 of 2024 and Learned Counsel, Mr. Anjan Kanti
Pal appearing on behalf of the respondent-owner of the vehicle
in both MAC App.No.85 of 2024 and MAC App. No.127 of 2024.
3. At the time of hearing of argument, Learned
Counsel, Mr. Debnath appearing on behalf of the appellant-
claimant petitioner drawn the attention of this Court that by the
said judgment and award, Learned Tribunal below awarded a
sum of Rs.15,96,000/- along with 9% interest per annum w.e.f.
03.12.2020 i.e. from the date of filing of claim petition till the
date of actual payment. Learned Counsel, Mr. Debnath further
submitted that the amount awarded by Learned Tribunal below
was too less as the appellant-claimant petitioner claimed higher
amount in her claim petition. It was further submitted that the
Learned Tribunal below at the time of determination of the
award assessed the monthly income of the deceased at the rate
of Rs.10,000/- per month whereas his monthly income was
Page 4 of 16
Rs.18,000/- because being a rubber tapper he used to earn
Rs.600/- per day as wages and for 30 working days he used to
earn Rs.18,000/-. But, as the Learned Tribunal below
determined/assessed the monthly income of the deceased at
Rs.10,000/- per month, the amount of compensation has been
reduced. The appellant-claimant petitioner was supposed to get
the enhanced rate of monthly income. Moreso, the employer of
the deceased was produced by the appellant-claimant petitioner
to support her claim but the Learned Tribunal below, ignoring
the evidence on record has wrongly assessed the monthly
income of the deceased at Rs.10,000/- per month. So, Learned
Counsel for the appellant-claimant petitioner finally urged this
Court for enhancement of the amount of compensation awarded
by Learned Tribunal below.
4. On the other hand, Learned Counsel, Mr. Saha
appearing on behalf of the respondent-Insurance Company
first of all drawn the attention of this Court that before the
Learned Tribunal below, the appellant-claimant petitioner
could not adduce any documentary evidence on record
showing monthly income of the deceased. Furthermore, the
evidence of the employer also seems to be contradictory. So,
Learned Tribunal below rightly assessed the monthly income
of the deceased at Rs.10,000/- per month and there was no
illegality or infirmity in the said determination of the amount
by the Learned Tribunal below. It was further submitted that
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the Learned Tribunal below at the time of delivery of award
also imposed rate of interest @ 9% which was contrary to the
principle of law laid down by the Hon'ble Apex Court in
various cases. Learned Counsel, Mr. Saha finally urged this
Court for fixing the rate of interest @ 7% per annum and
urged for modification of the award delivered by Learned
Tribunal below.
5. Considered.
6. In the case at hand, the appellant-claimant
petitioner filed one claim petition before the Learned Tribunal
below stating that on 23.09.2020 at about 1:30 p.m., her son
namely, Sanjoy Debbarma(since dead) was waiting for a vehicle
keeping extreme left side in front of Microsa Para Primary
Health Centre near Microsapara Bazar under Jatrapur PS to
return home at Mohanbhog under Melaghar PS after attending
an invitation in the house of his brother-in-law namely,
Akashmani Tripura. That time suddenly a vehicle bearing
registration No.TR-03-F-1516(Bolera Maxx) proceeding through
the wrong side of the road suddenly dashed Sanjoy Debbarma
as a result of which he sustained injuries on his head, back,
legs, hands and other parts of his body and fell down on the
road. Immediately, he was brought to Microsapara Health
Centre but as the condition of the injured was critical, the
attending doctor referred him to Gomati District Hospital,
Udaipur and from there the injured was further referred to GBP
Hospital, Agartala. But on arrival at GBP Hospital, the attending
Page 6 of 16
doctor declared him as dead. On the following day the body of
the deceased was handed over to his family members after
holding post-mortem examination. It was also asserted by the
appellant-claimant petitioner that the accident occurred due to
rash and negligent driving by the driver of the offending vehicle
bearing registration No.TR-03-F-1516. It was also asserted in
the claim petition that the deceased was a tapper in rubber
plantation and at the relevant period of accident, he was
working in the rubber plantation of one Bipul Jamatia at
Shilghati under Kakraban PS and from his engagement he used
to earn Rs.18,000/- per month. On this issue a police case was
also registered with the Jatrapur PS bearing case No.33 of 2020
under Section 279/304(A) of IPC. The OP-owner of the vehicle
contested the claim petition by filing written statement denying
the assertions made by the appellant-claimant petitioner in the
claim petition and further took the plea that he is the registered
owner of the vehicle bearing registration No.TR-03-F-1516
(Bolero Maxx) and on the day of alleged accident, one Hannan
Miah, S/o Unuch Miah of Mohanbhog under Melaghar PS was
the driver of the said offending vehicle and he had valid driving
license to drive the vehicle. It was also submitted that at the
time of accident the vehicle was duly insured with the
respondent-Insurance Company. The respondent-Insurance
Company also contested the case by filing written statement
denying the assertions made by the appellant-claimant
petitioner in the claim petition and further submitted that the
Page 7 of 16
claim petition was subjected to strict proof by the claimant
petitioner. Upon the pleadings of the parties, Learned Tribunal
below framed the following issues:-
"(1) Did deceased Sanjoy Debbarma die in a road
traffic accident occurred on 23.09.2020 at about
1.30 p.m. in front of Microsapara Hospital near
Microsapara Bazar under Jatrapur Police Station
out of use of vehicle bearing registration No.TR-03-
F-1516 (Maxx Bolero) due to rash and negligent
driving of said Maxx Bolero vehicle?
(2) Is the petitioner entitled to get compensation,
as prayed for and if so, to what amount and who is
liable to pay the same?
(3) To what other reliefs the parties are entitled?"
7. To substantiate the issues, the appellant-claimant
petitioner examined herself as PW-1 and adduced 3(three)
more other witnesses and also relied upon some documentary
evidences which were marked as exhibits in the case.
Name of the witnesses of the appellant-claimant
petitioner:
1) PW-1: Smt. Kalpana Debbarma
2) PW-2: Shri Ganesh Debbarma
3) PW-3: Shri Narayan Debbarma
4) PW-4: Shri Bipul Jamatia
Exhibits of the claimant petitioner:
1) Exbt.1 series - Forwarding letter of Bidya
Debbarma, SI of police;
- Seizure list;
2) Exbt.2 - Post-mortem report;
8. On the other hand, the OP-Owner of the vehicle,
Krishnendu Dey examined himself as OPW-1 and he also relied
upon some documents which were marked as Exbt.-A to Exbt.-
D.
Page 8 of 16
Witness of the OP-owner:
1) OPW-1: Sri Krishnendu Dey
Exhibits of the OP-owner:
1) Ext.A - Driving licence of Hannan Miah;
2) Ext.B - Registration certificate of vehicle vide No. TR-
03-F-1516;
3) Ext.C - Insurance Policy certificate of the vehicle;
4) Ext.D - Copy of fitness certificate issued by the DTO,
Gomati against the vehicle TR-03-F-1516.
No oral/documentary evidence was adduced by
the respondent-Insurance Company.
9. Finally, on conclusion of the proceeding, Learned
Tribunal below allowed the claim petition and awarded a sum of
Rs.15,96,000/-with 9% interest.
10. For the sake of convenience, I would like to
narrate hereinbelow the operative portion of the judgment and
award of the Learned Tribunal below:
ORDER
"It is therefore, held that the claimant
petitioner is entitled to get compensation of
Rs.15,96,000/- (Rupees Fifteen Lakh Ninety Six
Thousand only) with interest @ 9% per annum from
03.12.2020 i.e. from the date of filing of the claim
petition till the date of actual payment. The Noticee
MAGMA HDI General Insurance Company Ltd. being
the insurer of the offending vehicle is directed to
make payment of compensation with interest within
30 days from today in terms of Section 168(3) of
M.V. Act, 1988.
Out of the total awarded amount of
compensation inclusive of interest, 75 % shall be
kept in a fixed deposit scheme in the name of the
petitioner, Smt. Kalpana Debbarma in any
Nationalized Bank of her locality for a period of five
years and the rest 25% shall be paid to her through
her Bank Account. However, liberty is given to the
claimant petitioner to receive monthly interest
therefrom for her day to day expenses. No loan or
premature withdrawal shall be permitted from the
fixed deposit account without prior permission of
this Tribunal.
Supply copy of this award free of cost to the
parties.
The claim petition stands disposed of on
contest.
Make necessary entry in the T.R. and in CIS."
11. Challenging the said judgment and award, the
appellant-claimant petitioner has filed this appeal for
enhancement of the amount of compensation and at the same
time the respondent-Insurance Company as appellant also filed
another appeal bearing MAC App. No.127 of 2024 for setting
aside/modification of the award delivered by Learned Tribunal
below as stated above.
12. I have heard detailed argument of both the sides
and perused the record of the Learned Tribunal below including
the judgment and award delivered by Learned Tribunal.
13. On perusal of the said judgment and award, it
appears to this Court that the Learned Tribunal below at the
time of determination of compensation after perusal of the
oral/documentary evidence on record assessed the monthly
income of the deceased at Rs.10,000/- per month and with that
amount Learned Tribunal below applying the principle of law
laid down in National Insurance Co. Ltd. v. Pranay Sethi &
Ors., (Spl. Leave petition (civil) no.25590 of 2014) added
40% as future income. Finally, as per Judgment of the Hon'ble
Supreme Court of India in Sarla Verma & Ors. vs. Delhi
Transport Corporation & Anr. reported in (2009) 6 SCC
121, and after deducting 50% of monthly income towards
personal expenditure applying the ratio of multiplier as 18, the
Learned Tribunal below determined the loss of dependency to
Rs.15,12,000/-.
Learned Tribunal below further relying upon the
judgment of Pranay Sethi (supra) awarded Rs.48,000/-
towards loss of consortium, Rs.18,000/- towards loss of estate
and another Rs.18,000/- towards loss of funeral expenses
after adding 20% increase in every 3(three) years at the
enhanced rate of 10 %. Since the judgment of Pranay Sethi
(supra) was passed on 31.10.2017 and after adding 20%
increase towards loss of consortium for a gap of 6(six) years
determined the amount of compensation towards loss of
consortium at Rs.48,000/-. In total, the Learned Tribunal
below determined the amount of compensation at
Rs.15,96,000/-.
14. Admittedly, Learned Tribunal below at the time of
determination of compensation assessed the monthly income of
the deceased at Rs.10,000/- per month. Learned Counsel for
the appellant-claimant petitioner in course of hearing only
stressed upon this point stating inter alia that the said amount
does not commensurate with the monthly income used to earn
by the deceased prior to accident as a rubber tapper which
needs to be enhanced and modified.
As already stated, to substantiate the issues the
appellant-claimant petitioner examined herself as PW-1 and she
also adduced more 3(three) other witnesses in support of her
case. PW-4, Bipul Jamatia was the employer of the deceased
where the deceased used to perform his job as a rubber tapper.
15. Now, let us discuss his evidence on record. Said
Bipul Jamatia i.e. the PW-4, submitted examination-in-chief in
affidavit before the Court. In his examination-in-chief in
affidavit he stated that he has got one rubber plantation since
2015 about 15 kanis of ancestral land which is situated at
Shilghati under Kakraban PS. He further stated that he was
unable to manage the affairs of said rubber plantation alone, so
he had to keep one staff namely, Sanjoy Debbarma for doing
whole work for which he used to pay Rs. 18,000/- per month to
him i.e. Rs.600/- per day and no leave was allowed to him as it
was a day to day work except illness. Sanjoy Debbarma used to
perform his work from 8.00 a.m. to 2.00 p.m. He further stated
that being a member of ST community, he is not required to
pay any income tax, so, he did not maintain Income Tax Return
file or pay slip to his employee, Sri Sanjoy Debbarma who died
in a road traffic accident on 23.09.2020 near Microsa Para
Primary Health Centre at Microsapara Bazar. He further stated
that he paid Rs.18,000/- per month i.e. Rs.600/- per day salary
to Sanjoy Debbarma as he was an able bodied energetic man
and very much efficient for doing his work. During cross-
examination, PW-4 stated that his homestead is situated at a
distance of 1 km from the house of the deceased Sanjoy
Debbarma. He has not submitted any document to substantiate
the fact that he has got one rubber plantation over 15 kanis of
land at Shilghati under Kakraban PS. He further stated that he
did not submit any paper showing that the deceased Sanjoy
Debbarma was his staff and he used to pay Rs.18,000/- per
month to Sanjoy Debbarma. Again, he stated that the deceased
Sanjoy Debbarma used to collect rubber latex on day to day
basis and he did never maintain any register regarding payment
of wages to his staff including Sanjoy Debbarma.
16. Learned Counsel for the respondent-Insurance
Company in course of hearing of argument referred the cross-
examination part of the said witness PW-4 and submitted that
since the said witness failed to submit any relevant
documentary evidence showing his ownership over more than
15 kanis of rubber plantation and also regarding payment of
wages to the deceased, no reliance could be placed upon his
evidence. However, Learned Tribunal below misappreciating the
evidence on record assessed the interest @ 9% which requires
to be modified.
17. From the judgment and award of the Learned
Tribunal below it appears to this Court that at the time of
determination of compensation, Learned Tribunal below based
upon the notification dated 04.08.2023 issued by the Registrar
General, High Court of Tripura and determined the monthly
income of the unskilled workers at Rs.10,000/- per month
involving the accident which had taken place prior to
31.12.2015. But since in the instant case, the accident took
place on 23.09.2020 so in absence of any documentary
evidence Learned Tribunal below assessed the monthly income
of the deceased at Rs.10,000/- without narrating any specific
grounds as to why the said income was assessed.
Admittedly, the deceased was a rubber tapper who
served under PW-4 but before the Learned Tribunal below the
appellant-claimant petitioner could not produce any
documentary evidence in respect of income of the deceased
save and except the evidence of PW-4. PW-4 also could not
submit any documentary evidence showing his ownership over
the rubber plantation nor could he produce any register showing
payment of wages to the deceased. But, it is on record that the
deceased used to work under him for collecting rubber latex
almost everyday in a month.
However, considering 30 days in a month it can be said
that the deceased used to work under the said PW-4 for at least
25 days in a month because sometimes due to some
unforeseen reasons, in the considered opinion of this Court, it
could not have been possible for the deceased to work for 30
days under said PW-4. Furthermore, since the deceased used to
collect rubber latex which also requires some skill because for a
normal labourer/worker it may not be possible to easily collect
latex from rubber plants. So, considering the location of PW-4,
it can be assessed that the deceased being a skilled worker at
least used to receive Rs.500/- per day from his employer i.e.
PW-4 at least for 25 days in a month. So, in such a situation,
the monthly income of the deceased could be assessed at
Rs.12,500/- per month (Rs.500/- ×25 days). Learned Tribunal
below did not assess the monthly income of the deceased in
such a manner for which in the considered opinion of this Court,
the amount assessed/awarded by the Learned Tribunal below
needs to be modified and it would be proper if the monthly
income of the deceased is assessed to Rs.12,000/- per month in
place of Rs.12,500/-. So, considering the facts and
circumstances of the case, we can assess that the deceased
used to earn Rs.12,000/- per month as a rubber tapper from his
employer i.e. PW-4 and with that amount as per law laid down
by the Hon'ble Supreme Court of India in Pranay Sethi
(supra), 40% of income be added as future income. Thus, on
calculation the monthly income of the deceased comes to
Rs.12,000/- plus 40% thereof which comes to Rs.16,800/-
(Rs.12,000/- + Rs.4,800/-). Hence, loss of dependency would
be as follows i.e. Rs.16,800/× 12 i.e. Rs.2,01,600/- per annum.
Since, the deceased was a bachelor at the time of dead, so as
per law laid down by the Hon'ble Supreme Court of India in
Sarla Verma (supra), 50% therefrom be deducted on account
of personal expenditure of the deceased and thus, the amount
comes to Rs.1,00,800/-. Thus, the loss of dependency would
comes to Rs.1,00,800/-× 18 i.e. Rs.18,14,400/-(after applying
multiplier as per Sarla Verma's case). Since, the appellant-
claimant petitioner did not raise any other point at the time of
hearing of argument, so as per law laid down by the Hon'ble
Supreme of India in Pranay Sethi (supra) Rs.18,000/- be
added as loss of estate, further Rs.18,000/- would be added as
loss of funeral expenses and Rs.48,000/- would be added as
loss of consortium. Thus, the total amount of compensation
would come to Rs.18,98,400/- and the appellant-claimant
petitioner would be entitled to get Rs.18,98,400/- as
compensation.
18. Now, regarding rate of interest, Learned Counsel
for the respondent-Insurance Company drawn the attention of
this Court that in this case rate of interest has been calculated
at the rate of 9% per annum by the Learned Tribunal below
w.e.f. 03.12.2020 till the date of realization of actual payment.
It is an admitted position that in many cases even this High
court also awarded rate of interest at the rate of 9% and in
some cases the rate of interest has been shown as 7.5% by the
Hon'ble Supreme Court of India. Learned Tribunal below at the
time of delivery of judgment and award did not assign any
reason as to why the said rate of interest was imposed without
referring any citations. However, considering this situation, I
think it would be proper if the rate of interest is reduced to 8%
in place of 9%.
19. In the result, accordingly, the MAC App. No.85 of
2024 filed by the appellant-claimant petitioner is partly allowed
with modification that the appellant-claimant petitioner would
be entitled to get Rs.18,98,400/- along with 8% interest in
place of 9% interest from the date of filing of the claim petition
i.e. w.e.f. 03.12.2020 till the date of actual payment. The cross
appeal filed by the respondent-Insurance Company being MAC
App. No.127 of 2024 is also partly allowed with modification
that the aforesaid amount determined by this Court today be
given to the appellant-claimant petitioner with 8% interest in
place of 9% interest awarded by the Learned Tribunal below
vide the said judgment and award dated 26.06.2024 from the
date of filing of the claim petition till the date of actual
payment.
Since necessary order is already been passed by the
Learned Tribunal below regarding disbursal of amount to the
appellant-claimant petitioner, so, the same is not interfered
with and the amount of compensation would be disbursed in
accordance with the judgment and award delivered by Learned
Tribunal below on 26.06.2024 in T.S. (MAC) No.173 of 2020.
20. The respondent-Insurance Company i.e. the
appellant in MAC App. No.127 of 2024 be asked to deposit the
aforesaid amount of compensation to the Registry of the High
Court within a period of 6(six) weeks from the date of passing
of this judgment/award.
Supply a copy of this judgment to the Learned
Counsel for the appellant-claimant petitioner in connection with
Mac App. No.85 of 2024. Also supply a copy of this judgment to
the Learned Counsel for the appellant in connection with MAC
App. No.127 of 2024 free of costs.
Send down the LCR along with a copy of this
judgment.
With this observation, both the appeals are
disposed of.
Pending application(s), if any also stands disposed
of.
JUDGE
Snigdha
MOUMIT Digitally signed by
MOUMITA DATTA
A DATTA Date: 2025.04.24
15:57:59 +05'30'
