MAC App./25/2021 of Shri Parimal Das Vs Shri Sukanta Paul and 4 Ors on 22 December 2021

1. Shri Sukanta Paul,

Son of Shri Santosh Kumar Paul resident of Santipally, P.S. Birganj, Sub-Division Amarpur, Gomati, Tripura, Pin-799101 (Owner of TR-01-C-1824 Truck, TATA)

2. Shri Mahaprabhu Jamatia, Son of Shri Abhi Manya Jamatia resident of village Duluma Para, P.S. Birganj, Sub-Division Amarpur, Gomati, Tripura, Pin-799101 (Driver of TR-01-C-1824 Truck, TATA)

3. The Oriental Insurance Company Ltd., Udaipur Branch, Udaipur, P.S. RK Pur, Udaipur, Gomati, Tripura, Pin-799120 (Insurer of TR-01-C-1824 Truck, TATA)

4. Shri Shital Chandra Das, Son of Sri Harendra Chandra Das, resident of Village Rangkang, Netaji Coloney, P.S. Birganj, Sub-Division Amarpur, Gomati, Tripura, Pin-799101 (Owner of TR-03-A-4546 Motor Bike)

5. United Insurance Company Ltd., Udaipur Branch, Udaipur, P.S. RK Pur, Udaipur, Gomati, Tripura, Pin-799120 (Insurer of TR-03-A-4546 Motor Bike)

…………… Respondent.

BEFORE

THE HON’BLE MR. JUSTICE S. G. CHATTOPADHYAY

For Appellant(s) : Mr. J. Majumder, Adv. Mrs. A. S. Lodh, Advocate.

For Respondent(s)

: None.

: 17[th] November, 2021.

Date of hearing

: 22[nd] December, 2021.

Date of Judgment & Order

Whether fit for reporting

:

NO.

JUDGMENT AND ORDER

This appeal is directed against the award dated 15.02.2021 passed by MACT No.2, Udaipur in Gomati Judicial District in Case No.TS(MAC) 44 of 2017 whereby claimant Parimal Das was awarded compensation of a sum of Rs.4,38,317/- with 6% annual interest thereon for the injuries sustained by him in a road traffic accident which occurred on 30.03.2012.

[2]The factual background of the case is as under:

Sri Pradip Das, son of the injured lodged a written FIR with the Officer-in-charge of Birganj Police Station, Amarpur on 30.03.2012 alleging that the offending truck bearing Registration No.TR-01C-1824 hit the motor bike of his father when his father was going to Amarpur from their Netaji Colony home on his motor bike at about 11.30 a.m. It was alleged by the informant that the accident occurred due to rash and negligent driving of the truck and as a result of the said accident his father received fatal injuries. His left leg was fractured. From the place of occurrence he was first taken to Amarpur Hospital from where he was referred to GBP and AGMC Hospital at Agartala. The informant claimed police investigation and action against the offender.

[3]Based on his FIR, BRG police station Case No.29 of 2012 under Section 279 and 338 IPC was registered and investigation was taken up. During investigation, evidence was collected by the investigating agency. The Investigating Officer arrived at the conclusion that the accident occurred due to rash and negligent driving of the truck bearing registration No.TR-01-C-1824 which hit the motor

bike of the appellant from behind. Accused driver of the truck was found to be responsible for the accident and he was charge sheeted for rash and negligent driving punishable under Sections 279 and 338 IPC.

[4]The injured appellant filed an application under Section 166 of the Motor Vehicles Act (M.V.Act hereunder) claimimg compensation of a sum of Rs.10,00,000/-. The appellant pleaded in his claim petition that he incurred expenses of a sum of Rs.3,00,000/- for his treatment in various hospitals within and outside the State. He also claimed that at the time of accident he used to earn Rs.20,000/- per month from his business. As a result of the injury sustained by him from the said accident, he became permanently disabled and lost his earning capacity. He, therefore, claimed the said compensation.

[5]The owner, driver and insurer of the offending vehicle were impleaded as respondents No. 1, 2 and 3 respectively. The owner and insurer of the motor bike were also impleaded as respondents No.4 and 5. All respondents submitted written reply to the claim of the appellant. In their joint written statement, the owner and driver of the offending truck pleaded that there was no negligence on the part of the driver of the vehicle. They claimed that all the documents relating to their vehicle were operative at the time of the accident and as such, they were not liable to pay any compensation to the claimant.

[6]The insurer of the offending vehicle (respondent No.3) denied the accident. In paragraph-15 of its written statement the

insurance company, however, pleaded that in absence of policy particulars and fulfillment of the terms and conditions of such policy, the insurance company would not be liable to pay any compensation. Respondent No.4 Shital Ch. Das who was the owner of the motor bike bearing registration No.TR-03-4546 averred in his written statement that the said motor bike was owned by him which was insured with the United India Insurance Co. Ltd. and the insurance policy was in operation on the date of occurrence. He claimed that at the time of occurrence his motor bike was driven by the appellant who had a valid driving licence. He denied his responsibility to pay compensation since his vehicle was insured and the policy was in force.

[7]Written objection was also filed by the insurance company of the motor bike (respondent No.5) which denied the accident saying that such accident was never reported to the respondent by the owner of the motor bike. The insurance company further pleaded that without complete details of the insurance policy, the respondent would not be liable to pay any compensation to the injured appellant.

[8] In the course of trial, the appellant was examined and cross-examined as PW-1, his son Pradip Das was examined and cross-examined as PW-2 and Dr. Sukumal Sarkar, a Medical Officer and Member of District Disability Board, Udaipur was examined and cross-examined as PW-3. Apart from adducing the ocular testimony of said witnesses, the appellant adduced as many as 17 documentary evidence which were exhibited and marked as Exbt.1 to Exbt.17/2. No evidence was however, adduced on behalf of the respondents.

[9]

[9]On appreciation of evidence, the tribunal held that appellant was entitled to a total compensation of Rs.4,38,317/- along with 6% annual interest thereon from the date of presentation of the claim petition at the Tribunal till disbursement.

[10]The impugned award demonstrates that after scrutiny of the vouchers submitted by the appellant, Tribunal awarded a sum of Rs. 1,57,572/- to the appellant for medical expenses. This apart Tribunal also awarded Rs. 54,745/- to the appellant as transportation and attendant charges. His monthly income was worked out to be Rs.5,000/-. Since he was confined to bed for about two months and unable to pursue any normal work, Rs.10,000/- was awarded to him for actual loss of income. Rs.6000/- was granted for pain and suffering. Since the claimant-appellant suffered 70% permanent locomotor disability, the tribunal going by his age applied multiplier 15 and assessed the loss of his future income at Rs.2,10,000/- and thus calculated the total amount of compensation as under:

[11]By means of filing this appeal under Section 173(1), M.V. Act, appellant has challenged the impugned award mainly on the following grounds:

(i) Assessment of monthly income of the appellant was completely erroneous because tribunal failed to appreciate that even a day labourer would earn not less than Rs.500/- per day and, as such, the monthly income of a day labourer would be around Rs.15,000/- per month whereas the monthly income of the appellant was assessed at Rs.5,000/- per month.

(ii) The medical bills submitted by the appellant were not properly scrutinised by the Tribunal as a result of which the amount less than the amount actually incurred by the appellant for treatment was granted to him.

(iii) Calculation of the Tribunal with regard to loss of income was completely erroneous.

(iv) No amount was granted towards loss of future prospect despite the law laid down by the Apex Court in this regard.

[12] In the course of his arguments, counsel appearing for the claimant argued that the monthly income of the appellant assessed by the tribunal was grossly inadequate because the appellant had an established business at the time of the accident from which he used to earn around Rs.20,000/- per month. Counsel contended that even a

day labourer would earn Rs.500/- per day and Rs.15,000/- per month whereas claimant’s monthly income was assessed at Rs.5000/- only. Counsel further argued that the Tribunal should have granted a just and proper compensation to the claimant who suffered 70% permanent locomotor disability from the accident. Counsel therefore, urges the Court to enhance the amount of compensation. In support of his contention learned counsel has relied on a decision of this Court in United India Insurance Co. Ltd. Vrs. Smt. Lila Devi Jamatia and others; reported in 2016 SCC OnLine Tri 164 wherein it was held by this court that even in the year 2010 a grocery shop owner would not earn less than Rs.300/- per day. Counsel submits that the Tribunal thus committed error in assessing the income of the appellant. Relying on the decision of the Apex Court in the case of National Insurance Company Limited Vrs. Pranay Sethi and others; reported in (2017) 16 SCC 680 counsel has argued that in view of the said decision of the Hon’ble Apex Court, Tribunal should have made an addition of 25% because the appellant is a self employed person and at the time of accident he was between the age of 40 to 50 years. In this regard, counsel has relied on paragraph-59/4 of the said judgment of the Hon’ble Apex Court which reads as under:

“59.4 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.” 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.”

[13] It appeared from the Registry’s note dated 16.11.2021 that notice was properly served on all the five respondents. Since they did not turn up on the date of hearing despite service of notice, case was heard ex parte against them.

[14]Undisputedly, the accident occurred on 30.3.2012 in which the appellant, a businessman, received fatal injuries. Police investigation revealed that as a result of rash and negligent driving of the offending truck bearing registration No.TR-01C-1824, the said accident occurred for which driver (respondent No.2) of the said truck was charge sheeted by the investigating agency. By producing the disability certificate (Exbt.17) appellant established at the tribunal that he suffered 70% permanent locomotor disability due to such accident. On the basis of such materials Tribunal awarded the aforesaid compensation by the impugned award.

[15]Even though, respondents contested the case at the Tribunal by filing written objection, they did not turn up to challenge the appeal despite receiving notice.

[16]In his disability certificate (Exbt.17) dated21.10.2014 claimant’s age is recorded as 55. Accident occurred in 2012 when he was 53 years old. Therefore, as per the judgment of the Hon’ble Apex Court in Sarla Verma(Smt.) and others Vrs. Delhi Transport Corporation and Another: reported in (2009) 6 SCC 121 Tribunal should have applied multiplier 11 instead of 15 for assessment of compensation. Tribunal did not also take a rational view while assessing the income of the appellant. Since the appellant could not adduce any documentary proof of his income, tribunal guessed that his average monthly income would be around Rs.5000/-. Tribunal lost sight of the fact that appellant maintains a family consisting of his parents, wife and children and he is the only bread winner of his family. It would be hardly possible for a person to maintain such family with a meagre income of Rs.5000/- per month. Even a day labourer of his age would have earned Rs.10-12 thousand per month at the time when the accident occurred. The appellant was a businessman by occupation. Therefore, it would not be irrational to assess his monthly income at Rs.10,000/-.

[17]In view of his age, income and the disability suffered from the said accident, the future loss of income may be worked out as under:

His annual income would be Rs.10,000 x12 = 1,20,000/-. Since the appellant is a self employed person in the age between the age of 50 to 60 years there will be an addition of 10% for loss of future prospects in terms of the judgment of the Apex Court in Pranay Sethi(supra). After such addition annual loss of his future income would be Rs.1,20,000 + 12,000 = Rs.1,32,000/-. After multiplication by 11 the amount would come to Rs.1,32,000/- X 11 = Rs.14,52,000/- . As the appellant suffered from 70% permanent disability the loss of his future income would come to Rs.14,52,000 X 70 ÷ 100 = Rs.10,16,400/-. With regard to assessment made by the tribunal

under the other heads, it appears that Tribunal assessed the medical expenditures, transportation charges etc. on actual basis. Therefore, no interference is warranted in respect of such assessment. Appellant was confined to bed almost for two months. During such period he could not pursue his occupation. Therefore, his actual loss of income would be Rs.20,000/- at the rate of Rs.10,000/- per month. For pain and suffering Tribunal should have awarded at least Rs.25,000/- instead of awarding Rs.6,000/-.

[18]In view of what is discussed above, award payable to the appellant is reassessed as under:

[19]The appellant originally claimed Rs.10,00,000/-(ten lakhs) at the Tribunal. The amount of compensation worked out by this court exceeds Rs.10,00,000/-.Even though court is not powerless to award compensation more than the amount claimed, this court is of the view that in the given case compensation payable to the appellant should be limited to the amount claimed by him.

[20]The insurance company (respondent No.3) is directed to deposit the said amount of compensation of Rs.10,00,000/-(rupees ten lakhs) with the Registry of this Court within 8(eight) weeks along with 6% annual interest on the said amount from the date of filling till disbursement.

[21]In terms of the above, the appeal stands disposed of. Pending application(s), if any, shall also stand disposed of.

Since the matter has been heard ex parte, Registry will communicate copy of the judgment to respondent No.3 immediately. In addition, appellant is also directed to submit copy of the judgment at the office of the respondent No.3. Send down the LCR.

JUDGE