Tripura High Court
Smt. Jharna Pal Bhowmik @ Jharna Pal vs Sri Dipak Ranjan Nath on 2 August, 2018
Author: S. Talapatra
Bench: S. Talapatra
HIGH COURT OF TRIPURA
AGARTALA
MAC. App. No.26 of 2017
1. Smt. Jharna Pal Bhowmik @ Jharna Pal,
wife of late Krishnapada Pal
Bhowmik @ Krishna Pal
Bhowmik @ Krishnapada Pal
2. Sri Suman Pal Bhowmik,
son of late Krishnapada Pal
Bhowmik @ Krishna Pal
Bhowmik @ Krishnapada Pal
3. Sri Sujan Ranjan Pal Bhowmik,
son of late Krishnapada Pal
Bhowmik @ Krishna Pal
Bhowmik @ Krishnapada Pal
4. Smt. Sampa Rani Pal Bhowmik,
daughter of late Krishnapada
Pal Bhowmik @ Krishna Pal
Bhowmik @ Krishnapada Pal
-all are residents of village-
Jubarajnagar, P.S. Dharmanagar,
District- North Tripura
5. Smt. Sima Pal Bhowmik,
daughter of late Krishnapada Pal
Bhowmik @ Krishna Pal Bhowmik @
Krishnapada Pal, wife of Sri
Chandan Pal, village-Durgapur, P.S.
Gandacherra, District- Dhalai,
Tripura
......... Appellants
-Versus-
1. Sri Dipak Ranjan Nath,
son of Bipul Ch. Nath, Mission Tilla,
East Kameswar, Ward No.2, P.S.
Dharmanagar, District- North Tripura
[Owner of the offending vehicle]
2. Sri Ansuman Deb @ Hangshuman Deb,
son of Sri Kamal Kr. Deb, Old Motor
Stand, Near Juri Lodge, P.S.
Dharmanagar, District- North Tripura
[Driver of the offending vehicle]
Page 2 of 14
3. The Branch Manager,
National Insurance Company Ltd., P.S.
Dharmanagar, District- North Tripura
[Insurer of the offending vehicle]
4. Shri Kamal Kr. Deb,
son of late Sudhir Ch. Deb, Old Motor
Stand, Near Juri Lodge, P.S.
Dharmanagar, District- North Tripura
......... Respondents
For the appellants : Mr. K. Nath, Adv
For the respondents : Mr. A. Nandi, Adv.
Date of hearing and delivery : 02.08.2018
of Judgment & Order
Whether fit for reporting : Yes No
√
BEFORE
THE HON'BLE MR. JUSTICE S. TALAPATRA
JUDGMENT & ORDER
Heard Mr. K. Nath, learned counsel appearing for the appellants as well as Mr. A. Nandi, learned counsel appearing for the respondent No.3. None appears for the remaining respondents despite due notice from this court. [2] By means of this appeal under Section 173(1) of the Motor Vehicles Act, 1988, the judgment and award dated 15.12.2016 delivered in T.S.(MAC) No.44 of 2013 by the Motor Accident Claims Tribunal, North Tripura, Dharmanagar has been challenged.
[3] The facts in respect of accident that took place on 23.11.2012 at 1500 hours on the college road near Juri Page 3 of 14 Culvert under Dharmanagar Police Station due to rash and negligent driving of the motorbike bearing chasis No.MBLKC12EHCGL00774 and Engine No.KC12EECGL00520 [Hero CBZ Extreme] as the bike was a new one, no registration number was obtained are not in dispute. In the accident, the cyclist, namely Krishnapada Pal Bhowmik was hit from behind. The cyclist received serious injuries on his head and other parts of his person. Immediately, he was shifted to Dharmanagar hospital by the Fire Service but since he was in precarious condition was referred to Silchar Medical College. From there he was taken to Nemcare hospital, Guwahati. The victim's two sons and other friends accompanied the victim and they attended the victim at Silchar and Guwahati by staying in a hotel. On 28.11.2012, the victim succumbed to the injuries and the postmortem examination was done on 29.11.2012. At the time of death, the deceased was 56 years of age. According to the claim petition, he used to carry business earning `22,000/- per month. It has been also asserted that an amount of `5,00,000/- was taken as a loan from various sources for treatment.
The owner of the vehicle, namely Dipak Ranjan Nath, the respondent No.1 herein, and the National Insurance Company Ltd. resisted the claim by filing their respective written statements. Even the rider of the said bike who was Page 4 of 14 alleged of riding the vehicle negligently filed the written statement separately. Later on, the claim petition was amended by incorporating the respondent No.4 herein. The tribunal in the inquiry recorded the evidence both oral and documentary. The claimants adduced 4[four] witnesses and as many as 16 documents were introduced in the evidence [Exbts.1 to 16]. From the opposite parties, the respondents herein, 6[six] witnesses were examined and as many as 8 documents were introduced in the evidence. On evaluating the evidence, the tribunal by the impugned judgment awarded a sum of `4,24,190/-
[4] The relevant facts which are required to be noted for purpose of appreciating the challenge as projected in this appeal are that even though the respondent No.4, namely Kamal Kr. Deb as the O.P No.4 has claimed and testified in the inquiry that at the time of accident he was driving the offending bike but the tribunal after perusing the chargesheet[Exbt.2] has discarded such claim inasmuch as on completion of the investigation, the police filed the chargesheet clearly showing that the respondent No.2 [the OP No.2 in the tribunal] drove the offending bike at the time of accident. The OPs No.1 and 2 proved the insurance policy against the said bike vide its engine and chasis number as issued by the National Insurance Company Ltd., the Page 5 of 14 respondent No.3 herein. The policy was valid from 17.11.2012 to 16.11.2013 [Exbt.H]. It has been, therefore, held that on the date of accident the bike was covered by the said insurance policy. While determining the compensation in exercise of the power under Section 168 of the Motor Vehicle Act, the tribunal has considered the various aspects and awarded total sum of `4,24,190/- on the following heads:
Loss of income : `2,87,928/-
Loss of consortium : `50,000/-
For treatment of : `66,262/-
the deceased Funeral expenses : `20,000/-
But the tribunal has directed that the entire amount shall be paid by the respondent No.2 as according to the tribunal since the person driving the vehicle could not prove that he was driving the vehicle having with valid driving licence. Since as already indicated that an attempt was made to introduce the respondent No.4 as the rider of the said bike at the time of accident but that fact was discarded by the tribunal holding that after investigation, prima-facie the police report under Section 173(2) of the Cr.P.C. clearly shows that it was not the respondent No.4, but the respondent No.2 who was driving the vehicle. Thus, the owner of the bike has been saddled with the responsibilities to make the payment within Page 6 of 14 30 days along with interest @6% per annum from the date of filing of the claim petition till realization of the award. The mode of payment and the management of the money have been observed in the said judgment. It has been ordered that 75% of each share from the awarded amount shall be fixed in a long term fixed deposit scheme at least for a period of 6 years in the name of each of the claimant-petitioners in any branch of the State Bank of India giving a scope to the claimant-petitioners to draw the monthly interests accrued on it. No loan or other advances in any form shall be allowed on such fixed deposits without the express permission from the tribunal. The remainder, 25% of the respective shares together with interest shall be released in favour of the claimant-petitioners by transmitting it directly to the account of the claimants in order to enable them to meet the expenditure of the proceeding and other expenses which they incurred due to the treatment of the deceased.
The said judgment, as stated, has been challenged in this appeal.
[5] Mr. K. Nath, learned counsel appearing for the appellants has raised two pronged objections. Firstly, the determination of the monthly income is faulty inasmuch as the monthly income of the victim has been categorically asserted by the witnesses and there was no cross-examination in that Page 7 of 14 regard. Hence, the amount ought to have been much higher, not `4,000/- per month as determined by the tribunal. That apart, Mr. Nath, learned counsel has submitted that while computing the medical expenses, few vouchers were not added. As a result, even the actual expenses have not been reimbursed in the form of compensation.
[6] Ancillary to these two grounds, Mr. Nath, learned counsel appearing for the appellants has raised one additional ground that by not accepting the respondent No.4 as the driver of the vehicle, the tribunal has committed serious error of law inasmuch as the evidence as led by the respondents in the inquiry would clearly show that the respondent No.4 had been driving the vehicle at the time of accident. Since the respondent No.4 has got the valid driving licence, the insurance company is liable to make payment under Section 125 of the Indian Contract Act as by the insurance policy which is the form of agreement, the respondent No.1 had been indemnified. Even the policy has been placed on the record that the insurance company cannot escape the liability of making payment. Mr. Nath, learned counsel while dilating his submission has further submitted that a guesswork even, should be based on the attending facts while determining the income. He has submitted that the deceased was carrying on his own business and he used to earn a sum of `22,000/- per Page 8 of 14 month. He had the business of clothes and retail shot at Rana Plaza market, Dharmanagar. Mr. Nath, learned counsel has taken to this court to a cash memo issued by the authority of Nemcare hospital regarding receipt of `42,000/- for the consultation fee and the fees of the surgeon. Mr. Nath, learned counsel has further submitted that this amount has not been included in the expenses for medical treatment. It has been emphatically asserted that the determination of the income is so arbitrary that unless this court intervenes the same would continue to affect the appellants prejudicially. [7] From the other side, Mr. A. Nandi, learned counsel appearing for the respondent-insurance company has seriously resisted the proposition advanced by Mr. Nath, learned counsel appearing for the appellants. As the breach of Section 149 (2)(a) of the Motor Vehicles Act, 1988 has been pleaded, the provision for purpose of reference may be revisited. The said section reads as follows:
―149.2(a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:--
(i) a condition excluding the use of the vehicle--
(a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or
(b) for organised racing and speed testing, or
(c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or
(d) without side-car being attached where the vehicle is a motor cycle; or Page 9 of 14
(ii) a condition excluding driving by a named person or persons or by any person who is not duly licenced, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or
(iii) a condition excluding liability for injury caused or contributed to by conditions of war, civil war, riot or civil commotion;‖ [8] Mr. Nath, learned counsel appearing for the appellants has relied the proposition of National Insurance Company Ltd. vs. Swaran Singh and others, reported in (2004) 3 SCC 297, for purpose of making initial payment by the insurance company and thereafter, to realize the said amount from the respondent No.1 [the owner] by instituting a certificate proceeding under Section 174 of the Motor Vehicles Act inasmuch as the principle as laid in Swaran Singh (supra) is in consonance with the very object of protecting the victim's life by restoring the financial security.
[9] From the other side, Mr. Nandi, learned counsel appearing for the respondent-insurance company has stoutly submitted that since the breach has been clearly established by the tribunal, this court may not direct the method devised by Swaran Singh (supra) inasmuch as Swaran Singh (supra) has been substantially diluted by the subsequent decisions of the apex court. In this regard, Mr. Nandi, learned counsel has relied on a decision in United India Insurance Company Ltd. vs. K. Subramaniam & Ors., reported in Page 10 of 14 1991 ACJ 625, where it has been categorically observed that the insurance company cannot be made liable to pay compensation if the offending vehicle was being driven by a person not holding a valid driving licence at the time of accident. No doubt that Swaran Singh (supra) was decided much later of this decision.
[10] In reply, Mr. Nath, learned counsel appearing for the appellants has relied two decisions of the apex court in Francisca Luiza Rocha and Ors. vs. K. Valarmathi and Ors. [the order dated 09.11.2017 delivered in Civil Appeal No.18367/2017] where the apex court has observed that where in a case the owner has claimed that he did not know that the driver whom he had authorized to drive the vehicle had no valid driving licence for 2[two] months prior to the date of the accident, in that context, the apex court held that 'as the driver had a licence but validity of the same had expired, we are of the view that the conclusion of the High Court that the said fact, by itself, constitutes a fundamental breach of the terms and conditions of the policy of insurance is not correct.' Another decision relied by Mr. Nath, learned counsel in Kempaiah & Ors. vs. S.S. Murthy & Anr. [the order dated 02.03.2017 delivered in Civil Appeal Nos.3535- 3536 of 2017], where the apex court had occasion to observe as under:
Page 11 of 14
―In paragraph 110(viii) of the report of Swaran Singh (supra), it has been also held that the same would be the position in case the driver of the offending vehicle had a learner's licence. The ratio of the law laid down by this Court in Swaran Singh (supra) is in consonance with the object behind the enactment of the Motor Vehicles Act, 1988.‖ [11] The circumstances in both the decisions as relied by Mr. Nath, learned counsel are well qualified. In one case, the driver had the licence but the renewal was not done and in the other case, the driver had the learner's licence. But in the instant case, no such fact has been pleaded. The respondent No.2 who had been found driving the vehicle by the police investigation and accordingly, he had been chargesheeted for rash and negligent driving causing harm to the human body.
Prima-facie, in absence of any supervening evidence is adduced, this court has to accept the police report which has been duly admitted in the evidence. Thus, this court is unable to accept the contention of Mr. Nath, learned counsel in this regard. However, this court finds that a family of four persons can hardly be maintained with an amount of `4,000/-. Further, it appears that the victim had the business of clothes etc. Based on those components, it would not be improper to hold that for maintaining the family of that size, the victim used to earn `6,000/- per month. Thus, the loss of income as determined by the tribunal has to be interfered and be substituted by the computed loss of income on the monthly income of `6,000/-. The tribunal on the basis of the age of the Page 12 of 14 victim has correctly applied the multiplier '9' in terms of Sarla Verma & Ors. vs. Delhi Transport Corporation & Anr., reported in (2009) 6 SCC 121. This court will not interfere the choice of multiplier having due regard to the age of the victim as stated. Even the deduction of 1/3rd of the monthly earning is proper and thus, no inference is called for. With the said sum of income, 10% further be added as the loss of future prospect in view of the decision rendered by the apex court in National Insurance Company Ltd. vs. Pranay Sethi, reported in AIR 2017 SC 5157 where the apex court has observed inter-alia as under:
―61. (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.‖ Since this court has determined the income of the victim at `6,000/- per month, it was not an income exigible to tax and thus, no tax element is involved in the said income. Therefore, there is no question of deducting any tax from the said income. The monthly index along with 10% of loss of future prospect would be `6,600/-. From the said amount, 1/3rd has to be deducted as the personal expenses of the deceased. The monthly income component would therefore for purpose of determining the compensation be `4,400/- and Page 13 of 14 thus, the annual loss of income would be `52,800/-. With the said sum, for purpose of getting the loss of dependency, the multiplier '9' be applied to the annual loss of dependency [`52,800/-. Thus, the total dependency comes to `4,75,200/-. With the said amount, the loss of medical expenses, loss of consortium and the funeral expenses also added. [12] Mr. Nath, learned counsel has shown the voucher of the consultation fee which has not been added to the medical expenses. Thus, the medical expense would come to [`66,262+`42,000] =`1,08,262/-. The loss of consortium would come down to `40,000/- in terms of Pranay Sethi (supra) from `50,000/-. Further, 10% shall be added to that amount for lapse of 3[three] years and hence, the loss of consortium would come to `44,000/-. The funeral expenses would also come down to `15,000/-. Hence, the total compensation would comes to `6,42,462/-. The said amount shall carry interest @6% per annum from the date of filing the application till the realization. The entire award shall be satisfied by the respondent No.1 within a period of 2[two] months from the day of receipt of a copy of this judgment and order.
[13] In view of the above, this appeal stands allowed to the extent as indicated above. It is further observed that if the Page 14 of 14 amount is deposited in the tribunal, in terms of the observation made by the judgment dated 15.12.2016, the appellants will be entitled to receive and manage their share in terms of the said observation [at Para-23 of the impugned judgment dated 15.12.2016].
There shall be no order as to costs.
A copy of this judgment and order shall be sent by the registered post to the respondent No.1 by the Registry.
The respondent No.3 and the appellants shall get a copy of this judgment and order free of costs.
JUDGE Sujay