The Oriental Insurance Company Ltd. v. Khudeja Bibi & Ors.

Judgment And Order

Whether fit for Reporting : Mr. Karnajit De, Adv. None.

07.05.2025 YES HON’BLE MR. JUSTICE BISWAJIT PALIT Judgment & Order(Oral) This appeal is preferred by the Insurance Company i.e. Oriental Insurance Company Limited challenging judgment and award dated 18.10.2023 delivered by Learned Member, Motor Accident Claims Tribunal, North Tripura, Dharmanagar. By the said judgment and award Learned Tribunal awarded a sum of Rs.15,73,600/- in favour of the claimant-petitioners i.e. the respondents herein with 6% interest p.a. from the date of filing the claim petition i.e. w.e.f. 06.04.2018 to till the date of realization.

Heard Learned counsel Mr. Karnajit De appearing on behalf of the appellant insurance company. But none appeared on behalf of the respondent-claimants at the time of hearing of argument although notices were duly served upon the respondents.

#03. At the time of hearing Learned counsel for the appellant insurance company drawn the attention of the court referring para No.15 of the award and submitted that by the said award Learned Tribunal below has awarded a sum of Rs.20,000/- towards loss of estate, Rs.1,00,000/- for loss of love and affection and also Rs.20,000/- towards funeral expenses. According to the principle of law laid down by the Hon’ble Apex Court in United India Insurance Company Limited vs. Satinder Kaur and Others reported in (2021) 11 SCC 780 specifically in para No.34 and 35 there is no scope to award any amount towards “loss of love and affection”. But the Learned Tribunal below ignoring the principle of law laid down by the Hon’ble Apex Court awarded the said amount which needs to be deleted from the total amount of award. Learned Counsel for the appellant further drawn the attention of the court that as per judgment of the Hon’ble Supreme Court in National Insurance Company Limited vs. Pranay Sethi and Others reported in (2017) 16 SCC 680 in para No.52 only Rs.15,000/- was awarded towards loss of estate, Rs.40,000/- towards loss of consortium and Rs.15,000/- towards funeral expenses with a further direction that there should be an enhancement of 10% of the said amount in a span of three years. But surprisingly Learned Tribunal below without assigning any reason awarded a sum of Rs.20,000/- towards loss of estate and further awarded Rs.20,000/- towards funeral expenses which also needs to be modified. Learned Counsel further submitted that if the Tribunal ought to have increase 10% within a span of three years still in that case there is no scope to award that amount. But the Learned Tribunal below awarded Rs.20,000/- towards funeral expenses, and Rs.20,000/- towards loss of estate which also needs to be modified. Learned Counsel for the appellant further submitted that the appellant insurance company has got no other grievances regarding the award awarded by the Tribunal. So he urged for modification of the award. As already stated none appeared for the respondents at the time of hearing of argument in spite of receipt of notices.

#04. The respondent-claimant petitioners have filed one claim petition to the Learned Tribunal below alleging inter alia that on 08.05.2017 at about 11.00 hours while deceased Anuara Begam, wife of Late Abdul Sahid of Khudrakandi, P.O. Uptakhali, PS Panisagar, North Tripura was going to her ancestral house at Khudrakandi from Uptakhali market through NH 44 by a motor cycle bearing No.TR 05A-8691 as a pillion rider which was being driven being recklessly by Md. Safik Uddin, the owner of the vehicle and when they reached at Khudrakandi just about 200 meters away to her destination suddenly the rider of the motor cycle hold the brake. As a result of which said Anuara Begam fell down on the road and received grievous injury on her person specifically on the head and immediately she was brought to Uptakhali PHC from where she was referred to Dharmanagar District Hospital and finally she was referred to GBP Hospital, Agartala. But in course of her treatment at GBP Hospital on 11.05.2017 she succumbed to her injuries. Post-mortem examination was conducted over the dead body of the deceased and after that the dead body was handed over to the relatives for cremation. According the claimant-petitioners accident took place due to rash and negligent driving by Md. Safik Uddin, the owner cum rider of the bike. It was further submitted that Anuara Begam married with one Abdul Sahid and during their conjugal life a child was begotten namely Mamata Begam in the year 2006. But in the year 2007 suddenly Md. Abdul Sahid expired and Anuara Begam became alone in her life and after that she took shelter in her parental house at Khudrakanti along with Mamata Begam wherein the mother of the deceased used to reside. Hence since 2008 to 2017 said Anuara Begam and her daughter Mamata Begam started living with Khudeja Bibi till the date of accident. The mother of the deceased Khudeja Bibi was taking care and maintaining her grand-daughter depending upon the income of Anuara Begam, but after the death of Anuara Begam both the claimants became helpless and Khudeja Bibi became the guardian of the claimant No.2 who is the minor daughter of Anuara Begam and Khudeja Bibi started taking care of minor claimant No.2. It was also further submitted that at the time of accident deceased was only 34 years old and she was in good health and energetic women and she used to earn not less than Rs.8,000/- per month and used to spend the money towards her daughter and mother namely Khudeja Bibi. After receipt of notices both the opposite parties appeared. The OP No.1 i.e. the insurance company contested the claim by filing written statement denying the assertions of the claimant-petitioners in the claim petition and the OP No.1 further took the plea that the claim petition is subjected to strict proof by the claimant-petitioners. The OP No.2 although appeared but did not file any written statement.

#05. Upon the pleading of the parties Learned Tribunal below framed the following points for determination: (i) Whether the suit is maintainable? (ii) Whether there is any cause of action for filing this instant suit? the claimants are entitled (iii) Whether to get compensation due to death of Anuara Begam and if so, what should be the quantum of compensation and who shall be liable to pay the compensation? (iv) Any other relief/reliefs as the claimants entitled to?

#06. To substantiate the case on behalf of the claimant-petitioners two witnesses were examined as PW-1 and PW-2 and they relied upon some documents which were marked as exhibits which are as follows: Witnesses of the Claimant-respondents: PW-1: Khudeja Bibi PW-2: Mst. Rukia Begam Exhibits of the Claimant-Appellants: (i) Exbt.1(i) to 1(ix): certified copies of printed FIR, ejahar, seizure memos, MVI report, certified copy of screen report of the involved vehicle, certified copy of driving license of the accused driver in connection with Panisagar PS case no.2017 PNS 014 dated 01-06-2017 under Sections 279/304A of IPC in 09 sheets. (ii) Exbt 2: Copy of birth certificate of Mamata Begam Bearing registration No.93/06 dated

26.07.2006. (iii) Exbt 3: Copy of birth certificate of deceased Anwara Begam. (iv) Exbt 4: Copy of Adhar card of deceased Anwara Bengam. (v) Exbt 5: Copy of Adhar card of Khudeja Bibi bearing No.5263 4927 2130. (vi) Exbt 6(i) to 6(vii): Certified copy of final report/chargesheet dated 31.07.2017 in respect of Panisagar PS case No.2017 PNS 014 dated

01.06.2017 under Sections 279/304A of IPC. (vii) Exbt 7(i) tp 7(v): Certified copy of the post- mortem examination report of deceased Anwara Begam in five sheets. On the other hand, OP No.2 Safik Uddin i.e. the owner of the vehicle examined himself as OPW 1 and relied upon some documents which are marked as exhibits which are as follows: Witnesses of OP Witness: OPW-1: Md. Safik Uddin Exhibits of the OPWs: 1) Exbt. A: copy of insurance policy of vehicle bearing No.TR-05A-8691 vide policy no.322790/31/2018/297 valid from 26.04.2017 to 25.04.2018. 2) Exbt. B: Copy of the registration certificate of vehicle bearing No.TR-05A-8691 which was issued on

19.05.2017 and valid upto 18.05.2032. 3) Exbt C: Copy of driving license of Md. Safik Uddin, son of Md. Abdul Gofur vide No.TRB0220050012637 issued on 30.12.2005 and valid upto (T) 16.07.2025 and (NT) 29.12.2025.

#07. Finally on conclusion of inquiry the Learned Tribunal below determined the amount of compensation @ Rs.15,73,600/- along with 6% interest from the date of filing the claim petition to till the date of realization. For the sake of convenience the operative portion of the judgment urns as under: “17. In view of the above discussion and findings, the application under Section 166 of the Motor Vehicles Act, 1988 filed by the claimant-petitioners is allowed on contest. It is ordered that the OP No.1, the Oriental Insurance Company Limited, Rajbari, Dharmanagar, North Tripura being the insurer of the vehicle bearing No.TR-05A-8691 will pay the compensation of Rs.15,73,600/- (Rupees fifteen lakh seventy three thousand six hundred) only to the claimant-petitioners within a period of 30 days from this day of award. This award of compensation shall carry interest at the rate of 6% per annum from the date of presentation of the claim petition before this Tribunal i.e. 06-04-2018 till the realization. Both the claimant- petitioners will get equal share of the total compensation together with accrued interest.

#18. Keeping in mind the guidelines of Hon’ble Apex Court in General Manager, Kerala State Road Transport Corporation, Trivandam Vs. Ms. Sushama Thomas and others (AIR 1994 SC 1631) and the guidelines as laid down in Union Carbide Corporations case (1991) 4 SCC 584 and subsequent decision of the Hon’ble High Court of Tripura in case no.MAC Application 36 of 2006 Joydeep Chakraborty Vs. Pintu Sharma and another, since the claimant petitioner no.2 namely Mamata Begam is a minor, it is ordered that the share of the minor claimant- petitioners together with interest shall be fixed in a long term fixed deposit scheme till she attain her majority in her name in any Nationalized Bank making the claimant- petitioner no.1 as her nominee. No loan or other advance in any form shall be allowed on such fixed certificate without the express permission of this tribunal. Since claimant petitioner no.2 namely Khudeja Bibi is an aged woman, it is ordered that 50% of the share of the claimant-petitioner no.1 together with interest shall be fixed in a long term fixed deposit scheme at least for a period of six years in her name in any Nationalized Bank giving a scope to her to draw the monthly interest accrued on it. No loan or other advances in any form shall be allowed on such fixed certificate without the express permission of this tribunal. Rest 50% of the share of the claimant-petitioner no.1 together with interest shall be released in her favour by transmitting it directly to her savings bank account to allow her to meet the expenditure of their livelihood which they might have incurred for the death of the deceased.

#19. Supply a copy of the judgment to the claimant- petitioners for their ready reference and a copy of the judgment shall also be communicated to the Opposite Party No.1, The Oriental Insurance Company Limited, Rajbari, Dharmanagar, North Tripura to facilitate the payment of the awarded compensation in time. Thus, the instant claim petition is disposed off on contest. Make entry in the TR and in CIS.” Challenging the award the appellant insurance company has preferred this appeal.

#08. I have heard argument of Learned Counsel for the appellant. As already stated none has appeared on behalf of the respondent-claimant petitioners and the respondent-owner inspite of service of notice. In course of hearing Learned Counsel for the appellant as already stated relied upon two citations of the Hon’ble Apex Court. In United India Insurance Company Limited vs. Satinder Kaur alias Satwinder Kaur and Others reported in (2021) 11 SCC 780 Hon’ble the Apex Court in para Nos.34 and 35 observed as under: “34. At this stage, we consider it necessary to provide uniformity with respect to the grant of consortium, and loss of love and affection. Several Tribunals and High Courts have been awarding compensation for both loss of consortium and loss of love and affection. The Constitution Bench in Pranay Sethi (2017) 16 SCC 680 has recognized only three conventional heads under which compensation can be awarded viz. loss of estate, loss of consortium and funeral expenses. In Magma General(2018) 18 SCC 130 this Court gave a comprehensive interpretation to consortium to include spousal consortium, parental consortium, as well as filial consortium. Loss of comprehended in loss of consortium. love and affection

#35. The Tribunals and High Courts are directed to award compensation for loss of consortium, which is a legitimate conventional head. There is no justification to award compensation towards loss of love and affection as a separate head.” From the aforesaid paragraphs of the Hon’ble Apex Court it appears that Hon’ble the Apex Court in disposal of the appeal observed that there is no justification to award compensation “towards love and affection as a separate head”. Here from the judgment and award of the Learned Tribunal below it appears that towards love and affection a sum of Rs.1,00,000/- was awarded by the Tribunal. But in this regard in the judgment no explanation was given as to why the said amount was fixed towards love and affection. Situated thus, it appears that Learned Tribunal below ignoring the principle of law laid down by the Hon’ble Apex Court, awarded the amount which needs to be deleted and accordingly the said amount is deleted from the amount which was determined by the Learned Tribunal below. Furthermore, Hon’ble the Apex Court in National Insurance Company Limited vs. Pranay Sethi and Others reported in (2017) 16 SCC 680 in para No.52 observed as under: “52. As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh. It has granted Rs. 25,000/- towards funeral expenses, Rs. 1,00,000/- 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 refers to Santosh Devi, it does not seem to follow the same. The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be 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 us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The principle of revisiting 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 should be enhanced on 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 consistency in respect of those heads.” From the aforesaid paragraph it appears that Hon’ble the Apex Court at the time of delivery of the judgment observed that Rs.15,000/- be awarded towards loss of estate and Rs.15,000/- would be decided towards funeral expenses which should be increased @10% in a span of three years, but there was no specific head towards love and affection. But the Learned Tribunal below at the time of determination of the award awarded Rs.20,000/- towards loss of estate and also Rs.20,000/- towards funeral expenses. In this regard Learned Tribunal also did not give any specific observation as to why the said amount was given in place of Rs.15,000/- under each component. The alleged accident took place on 08.05.2017 and the Learned Tribunal below delivered the award on 18.10.2023. By this time six years have been elapsed and as such the claimant- petitioners are entitled to get more 20% for loss of estate and more 20% of Rs.15,000/- for loss of funeral expenses and thus after calculation towards loss of estate the amount would comes to Rs.15,000/-+20% of 15,000/- i.e. 18,000/- and further Rs.15,000/-+ 20% of Rs.15,000/- i.e. 18,000/-. In total towards loss of estate the petitioners would get Rs.18,000/- and towards loss of funeral expenses Rs.18,000/- in place of Rs.20,000/- which is awarded under each components. As already stated, towards love and affection there is no scope to award any amount in view of the aforesaid principle of law laid down by the Hon’ble Apex Court. In the aforenoted case of United India Insurance Company Limited (supra) further in para Nos.29 to 33 Hon’ble the Apex Court observed as under: “29. Loss of Consortium Loss of Consortium, in legal parlance, was historically given a narrow meaning to be awarded only to the spouse i.e. the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non- pecuniary damage for loss of consortium is one of the major heads for awarding compensation in various jurisdictions such as the United States of America, Australia, etc. English courts have recognised the right of a spouse to get compensation even during the period of temporary disablement.

#30. In Magma General Insurance Co. Ltd. v. Nanu Ram & Ors.,12 this Court interpreted “consortium” to be a compendious term, which encompasses spousal consortium, parental consortium, as well as filial consortium. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse.

#31. Parental consortium is granted to the child upon the premature death of a parent, for loss of parental aid, protection, affection, society, discipline, guidance and training. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their 12 (2018) 18 SCC 130.child during their lifetime. Children are valued for their love and affection, and their role in the family unit.

#32. Modern jurisdictions world-over have recognized that the value of a child’s consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is the compensation for loss of love and affection, care and companionship of the deceased child.

#33. The Motor Vehicles Act, 1988 is a beneficial legislation which has been framed with the object of providing relief to the victims, or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium. Parental Consortium is awarded to the children who lose the care and protection of their parents in motor vehicle accidents. The amount to be awarded for loss consortium will be as per the amount fixed in Pranay Sethi (supra).” From the aforesaid principle it appears that since the claimant-petitioner No.2 was a minor at the time of accident of her mother and was aged about 12 years who was represented by her grand-mother i.e the claimant petitioner No.1 herein. So in view of the aforesaid observation of the Hon’ble Apex Court the claimant-petitioner No.2 would be entitled to parental consortium as per the rate decided by the judgment of Hon’ble Supreme Court of India in National Insurance Company Limited (supra). So under that head the claimant-petitioner No.2 would also get Rs.40,000/- towards loss of parental consortium and since this amount is to be increased @10% in every span of three years. So after calculation this amount would comes to Rs.48,000/- i.e (400000+10% increase in three years) i.e for six years in two span, the amount would comes to more Rs.8,000/- i.e in total Rs.48,000/-. So after calculation the amount compensation would Rs.14,33,600/-+18,000/-+48,000/-+18,000/-=15,17,600/- which the respondent-claimant petitioners would be entitled to get from the appellant insurance company. The appellant insurance company at the time of hearing of argument did not raise their voice towards any other point regarding determination of compensation awarded by Learned Tribunal below. As such, the appellant insurance company the insurer of the offending motor bike would be liable to pay the said amount to the respondent-claimant petitioners of this case.

#09. In view of the above, the appeal is partly allowed with modification that the appellant Oriental Insurance Company Limited, Rajbari, Dharmanagar being the insurer of the vehicle being TR-05A-8691 shall pay total amount of Rs.15,17,600/- to the respondent-claimant petitioners in place of Rs.15,73,600/- within a period of six weeks from the date of delivery of the judgment with 6% interest p.a. as already been awarded by the Learned Tribunal from the date of filing the claim petition w.e.f. 06.04.2018 to till the date of realization. From the record of the case it appears that 50% of the award is already been deposited by the appellant insurance company to the Registry of this High Court as per order dated 27.06.2024 passed by this Court in IA No.02 of 2024 arising from the MAC APP No.53 of 2024. So the balance amount as per this award also be deposited to the Registry of the High Court within a period of six weeks from the date of delivery of the judgment/award. It is made clear that by the judgment and award of the Learned Tribunal it was ordered that the amount of compensation would be distributed equally to both the claimant-petitioners. But since the parental consortium is only awarded to the minor daughter namely Mamata Begam of the deceased Anuara Begam, so she would get more Rs.48,000/- towards parental consortium with up-to-date interest than the amount of award be released in favour of the claimant-petitioner No.1, Khudeja Bibi. The distribution of the money would be made to the respondent-claimant petitioners in pursuance of the judgment and award delivered by the Learned Tribunal on 18.10.2023. Send down the LCR along with a copy of this judgment/order. Supply a copy of this order to the Learned Counsel appearing for the appellant free of cost for information and compliance. Also a copy of order/judgment be furnished to the Learned Counsel for the claimant-respondents. With this observation, this appeal stands disposed of. Pending application, if any, stands disposed of. JUDGE MOUMITA DATTA MOUMITA DATTA 04:31:32 +05'30' Moumita