Smt. Gita Rani Sarkar v. The State of Tripura & Others

Ms. R. Majumder, Adv, Mr. B. Banerjee, Adv. Mr. P. Gautam, Adv.

02.12.2024

07.12.2024 YES HON’BLE MR. JUSTICE BISWAJIT PALIT Judgment & Order This appeal under Section 173 of M.V. Act is preferred by the appellant-claimant petitioners challenging the judgment and award dated 31.05.2023 delivered by Learned Member, MAC Tribunal No.2, Gomati District Udaipur in connection with case No.TS(MAC) No.50 of 2021. By the said judgment and award, Learned Tribunal below has awarded a sum of Rs.9,41,200/- along with 6% interest from the date of filing the claim petition i.e. w.e.f 11.08.2021 to till the date of realization.

#2. Heard Learned Counsel Mr. B. Banerjee and Ms. R. Majumder appearing for the appellant-claimant petitioners and also heard Learned Counsel, Mr. P. Gautam representing the respondent No.2-United India Insurance Company Ltd. None appears on behalf of the respondent No.1 inspite of service of notice.

#3. Taking part in the hearing, Learned Counsel for the appellants first of all drawn the attention of the Court regarding determination of monthly income by the Learned Tribunal below. According to Learned Counsel, in para No.14 of judgment/award, Learned Tribunal below determined the daily income of the deceased as Rs.400/- per day and accordingly, determined the monthly income of the deceased at the rate of Rs.8,000/- per month calculating 20 working days a month which is not at all permissible and sustainable in the eye of law. According to Learned Counsel for the appellants, it ought to have Rs.500/- per day as the accident occurred during the year 2020 and for 30 working days, it should be minimum Rs.15,000/- per month but the Learned Tribunal below without considering the actual condition has only determined the monthly income of the deceased for 20 working days at the rate of Rs.8,000/- per month which was too less and for that, Learned Counsel urged for interference of this Court by setting aside the judgment. Learned Counsel further submitted that under conventional head, Rs.15,000/- was awarded as loss of estate, Rs.40,000/- as loss of consortium and Rs.15,000/- towards funeral expenses but in view of the principle of law laid down by the Hon’ble Apex Court in National Insurance Company Limited v. Pranay Sethi & others reported in AIR 2017 SC 5157, the said amount should be enhanced after three years but at the time of delivery of judgment, the said principle of law was not taken into consideration by the Learned Tribunal below. So, Learned Counsel finally urged for allowing this appeal.

#4. On the other hand, Learned Counsel for the Insurance Company fairly submitted that the Learned Tribunal below considering the oral and documentary evidence on record rightly determined the monthly income of the deceased at Rs.8,000/- per month and there was no infirmity in the judgment of the Learned Tribunal below and urged for dismissal of this appeal upholding the judgment of the Learned Tribunal below.

#5. Here in the case at hand, the appellant-claimant petitioners filed one claim petition before the Learned Motor Accident Claims Tribunal No.2, Gomati District, Udaipur alleging inter alia that on 26.09.2020 at about 18:30 hours, Ranjit Sarkar (deceased) was proceeding towards his house from Kali Mandir, Chandrapur Colony by walking keeping the extreme left side of Sabroom-Agartala road and when said Ranjit Sarkar reached near Kali Mandir, Chandrapur Colony No.7, that time, one vehicle bearing registration No.TR-03-3738 (Cruiser Jeep) came from Santirbazar side with an abnormal speed in rash and negligent manner and dashed against said Ranjir Sarkar for which said Ranjit Sarkar received grievous injuries on head, chest and other vital parts of the body. After the accident, the victim was taken to Gomati District Hospital by the Fire Service vehicle, but during treatment on the same day at about 22:00 hours the victim succumbed to his injury.

#6. Accordingly, R.K. Pur P.S. case No.03 of 2021 under Section 279/338/304A of IPC was registered and accordingly, the appellant-claimant petitioners filed the claim petition before the Learned Tribunal below.

#7. Before the Tribunal, the O.P.-owner cum rider appeared by filing written statement denying the assertions of the claimant-petitioners and it was further asserted that the accident did not occur due to the fault of the owner-cum-driver and the O.P. No.1 also asserted that the vehicle had valid registration and other relevant documents and the same was insured with O.P. No.2 on that relevant point of time and the driver had valid driving licence. The Insurance Company also contested the case by filing written statement and denied the assertions of the claimant-petitioners and it was further submitted that the claim petition was subjected to strict proof by the claimant petitioners.

#8. Upon the pleadings of the parties, two nos. of issues were framed by the Learned Tribunal below. To substantiate the issues, both the parties have adduced oral/documentary evidence on record and finally, on conclusion of hearing of argument, Learned Tribunal below by the judgment and award dated 31.05.2023 allowed the claim petition filed by the claimant-petitioners. The operative portion judgment/award runs as follows: ORDER “16. In the result, it is hereby ordered that the claimant-petitioners are entitled to get compensation of Rs.9,41,200 (Rupees nine lacs forty one thousand two hundred) only. The OP No.2 i.e. the OP No.2 United India Insurance Co. Ltd., the insurer of the offending vehicle bearing Registration No.TR-03-3738 (Cruiser Jeep) is directed to make the payment of compensation claimant-petitioners within 30 (thirty) days from today along with interest thereon @ 6% per annum from the date of filing of cliam petition, i.e., from 11.08.2021 till payment/realization of the same.

#17. Out of the said amount the claimant- petitioner No.1 is entitled to get Rs.3,00,100/- and rest three claimant-petitioner Nos.2, 3 & 4 each are entitled to get an amount of Rs.2,13,700/-. The claimant-petitioner No.1 be paid Rs.1,50,100/- in her favour out of her amount of Rs.3,00,100/- and rest amount of Rs.1,50,000/- should be kept in fixed deposit in her respective account in any Nationalized Bank for the period of 5(five) years. The total amount of Rs.2,13,700/- of the claimant- petitioner No.2 be kept in fixed deposit in his respective account in any Nationalized Bank for the period of 10(ten) years or till his attaining the majority whichever is earlier. The claimant- petitioner No.3 & 4 each be paid Rs.50,000/- in their favour out of the amount of Rs.2,13,700/- and rest amount of Rs.1,63,700/- each should be kept in fixed deposit in their respective account in any Nationalized Bank for the period of 5(five) years. In the case in which investment in long term in the nature of fixed deposit is made on condition that the Bank will not permit any loan or advance on the Fixed Deposit and interest on the amount invested is paid monthly directly to the claimants or their legal heir, as the case may be. Further the claimant-petitioners are also granted liberty to apply for withdrawal in case of an emergency. To facilitate the payment of amount of the claimant-petitioners and the fixed deposit amount on maturity, the claimant-petitioners at the appropriate time shall file photo copy of their Bank Pass Book in their name containing photograph, account number, IFSC number and the RTGS number duly certified by the Banker and a copy of Passport Size photograph before making payment so as to enable this Tribunal to transfer the amounts directly to his Bank Account.

#18. The case is disposed of on contest.

#19. Enter the result in the relevant register.

#20. Supply a copy of the award to the parties free of cost and also email an authenticated copy of the award to the insurer i.e. OP No.2 at earliest.”

#9. I have heard both the sides at length and also perused the judgment delivered by Learned Tribunal below. On perusal of the judgment, it appears that in para No.14 of the judgment, Learned Tribunal below came to the observation that the deceased was earning Rs.400/- per day by doing his job and treating that he was working for 20 days in a month, assessed the monthly income at Rs.8000/- which in my considered view was not proper because for a worker or unskilled labourer, if we presume that he was earning Rs.400/- per day still he might have worked during that time not less than 25 days in a month because in a given month, it may so happen that he may not get work for all the days in a month. So, considering the situation, in my considered view, if we count 25 working days of the deceased in a month that he worked, in that case, at the rate of Rs.400/- per day as determined by the Tribunal, his monthly income would be assessed to Rs.10,000/-. If it is so, the calculation would be as follows: Monthly income – Rs.10,000/- along with that amount, there should be an addition of 10% of his yearly income in view of the law laid down by the Hon’ble Apex Court reported in AIR 2017 SC 5157 in National Insurance Copany Limited v. Pranay Sethi & others as per para 61, sub-para (iv). Since the deceased was aged about 51 years so the income of the deceased towards future prospect would be 10% in addition i.e. total income is Rs.1,32,000/- ((Rs.10,000 x 12) + Rs.12,000/- i.e. 10% of Rs.1,20,000/-).

#10. Then, along with that amount, there would be multiplier of 11 in pursuance of the judgment of Smt. Sarala Verma & Ors. V. Delhi Transport Corporation & Anr. reported in (2009) 6 SCC 121 as per para 21. Since the deceased was 51 years, so, the total loss of dependency would be Rs.1,32,000 X 11 = Rs.14,52,000/-. From the said amount, there would be 1/4th of deduction on account of personal and living expenses of the deceased since the deceased, was a married person. So, after deduction, total contribution to the family (dependents) would comes to Rs.10,89,000/- i.e. (Rs.14,52,000/- - (1/4 X 14,52,000/-) i.e. Rs.3,63,000/-).

#11. Thereafter, the Learned Tribunal below also awarded Rs.15,000/- as loss of estate, Rs.40,000/- as loss of consortium and Rs.15,000/- as funeral expense. Thus, total amount of Rs.70,000/-(Rs.15,000/- + Rs.40,000/- + Rs.15,000/-) comes under conventional head.

#12. Further, as submitted by Learned Counsel for the appellant-claimant petitioners at the time of hearing of argument regarding enhancement of 10% in a span of 3 years in respect of conventional heads, I have also seen the judgment of the Hon’ble Apex Court in National Insurance Company Limited v. Pranay Sethi and others reported in (2017) 16 SCC 680 wherein in para No.52, Hon’ble Apex Court observed as under: say, “52. As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh v. Rajbir Singh :(2013) 9 SCC 54. It has granted Rs 25,000 towards funeral expenses, Rs 1,00,000 towards loss of consortium and Rs 1,00,000 towards loss of care and guidance for minor children. The head relating to loss of care and minor children does not exist. Though Rajesh (supra) refers to Santosh Devi v. National Insurance Company Ltd. :(2012) 6 SCC 421, it does not seem to follow the traditional same. The conventional and heads, needless cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to loss of estate, us that reasonable figures on conventional heads, namely, loss of consortium and funeral expenses should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively. The principle of revisting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads.” enhanced should

#13. The accident took place in the year 2020. Under conventional heads, Learned Tribunal below has already awarded Rs.70,000/-. So, in view of the principle of law laid down by the Hon’ble Apex Court in the aforenoted case, the appellant- petitioner also would get additional amount Rs.7000/- (10% of Rs.70,000/- under conventional heads). Thus, the total amount of compensation after counting all factors would comes to Rs.11,66,000/- (Rs10,89,000/- + Rs.70,000/- + Rs.7,000/-).

#14. In the result, the appeal filed by the appellants is hereby partly allowed with modification that the appellant- claimant petitioners would get Rs.11,66,000/- as compensation with 6% interest per annum from the date of filing the claim petition i.e. w.e.f. 11.08.2021 to till the date of realization. The respondent-Insurance Company be asked to deposit the said amount within a period of 6(six) weeks from today to the Registry of the High Court, if not yet deposited. However, the disbursal of amount of compensation would be made in pursuance of the judgment and award dated 31.05.2023 delivered by the Learned Tribunal below. With this observation, this appeal is disposed of. A copy of this judgment be supplied to Learned Counsel for the appellant-claimant-petitioners. Also, a copy of this judgment be furnished to Learned Counsel for the respondent-Insurance Company. Send down the LCR along with a copy of this judgment. Pending applications(s), if any, also stands disposed of. JUDGE MOUMITA DATTA Deepshikha DATTA +05'30'