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2012 DIGILAW 365 (GAU)

Sabita Datta v. Santanu Saha

2012-03-20

SWAPAN CHANDRA DAS

body2012
JUDGMENT Hon'ble Mr. Justice S.C. Das 1. This appeal, under Section 173 of Motor Vehicles Act, 1988, is directed against judgment and award dated 14.12.2000, passed by learned Single Member, Motor Accident Claims Tribunal, West Tripura, Agartala, in TS(MAC) No. 17 of 1995 and TS(MAC) No. 24 of 1995(analogous judgment). 2. Heard learned counsel, Mr. Samarjit Bhattacharjee for the appellant and learned counsel, Mr. S.K. Datta for respondent No. 3. None appeared for other respondents. 3. Fact of the case, in short, is that one Jyotsna Deb, wife of Dhirendra Debbarma of Joynagar-Dashamighat, was sitting in front of a tea stall at Dashamighat by the side of the road on 09.11.1994 at about 10/10.30 am, and while awaiting for the other labourers to proceed to her workplace, at that time, a speeding ambassador car, bearing No. TRA-2409, knocked her down and, as a result, she received multiple injuries on her head and other parts of her body and she was shifted to G.B. Hospital, where she died at night on the same day. She was a helper of mason and used to earn about Rs. 1,500/- per month. After her death, her mother, Smti. Radha Rani Deb filed a petition under Section 166 of M.V. Act, claiming compensation of Rs. 5,50,000/-, inter alia, stating that she was residing with her deceased daughter Jyotsna Deb and her daughter used to maintain her, and therefore, she claimed compensation and that petition was registered as TS(MAC) No. 17 of 1995. The present appellant, Smti. Sabita Datta(Deb) daughter of Sri Dhirendra Debbarma and Jyotsna Deb also filed a petition under Section 166 of M.V. Act, claiming compensation for the death of Jyostna Deb, inter alia, stating that she was the only daughter, left by her mother Jyotsna Deb, and therefore, she also claimed compensation of Rs. 4,74,000/-, which was registered as TS(MAC) No. 24 of 1995. 4. Both the cases were tagged together and tried jointly by the Tribunal. Respondent No. 1, the owner of the alleged offending vehicle, submitted written statement denying rash and negligent driving of the vehicle and further stated that the vehicle was insured with the Oriental Insurance Company, covering risk on the date of accident, and so the Insurance Company should be held responsible for payment of compensation, if any. Respondent No. 1, the owner of the alleged offending vehicle, submitted written statement denying rash and negligent driving of the vehicle and further stated that the vehicle was insured with the Oriental Insurance Company, covering risk on the date of accident, and so the Insurance Company should be held responsible for payment of compensation, if any. Respondent No. 2, the Oriental Insurance Company also submitted written statement denying the averments made in the claim petitions but did not deny the factum of insurance of the vehicle, covering the risk on the date of accident. 5. Considering the pleadings of the parties, the Tribunal framed following issues:- 1. Whether Jyotsna Deb died in a Motor Accident at Battala-Dashamighat road on 09.11.1994 at about 10.30 am? 2. Whether the said accident occurred due to rash and negligent driving of the driver of vehicle No. TRA-2409(Taxi)? 3. If so, what should be the amount of compensation? 4. Who will be liable to pay compensation to the claimant? ADDITIONAL ISSUE Whether claimant-petitioners of both the cases viz. T.S.(MAC) 17/95 and T.S.(MAC) 24/95 are entitled to get compensation under M.V. Act due to the alleged accident of Jyotsna Deb? 6. In course of trial, the appellant, who was the claimant-petitioner in TS (MAC) No. 24 of 1995, examined herself as PW.1 and her father, who was added as petitioner No. 2, was also examined as PW.2. Another Smt. Ranu Bala Deb, W/O, Umesh Ch. Deb was examined as witness No. 3. The Tribunal, by impugned judgment and award dated 14.12.2000, granted compensation to the tune of Rs. 1,58,000/- (rupees one lakh fifty eight thousand) with interest and distributed the amount in favour of the appellant i.e. claimant-petitioner Smti. Sabita Datta(Deb) to the extent of 45%, and claimant-petitioner Sri Dhirendra Debbarma to the extent of 5%, and the rest 50% of the amount was directed to be paid to Smti. Ranu Bala Deb, the witness No. 3. 7. Learned counsel, Mr. Bhattacharjee appearing for the appellant submits that Ranu Bala Deb was neither a claimant petitioner nor a respondent in either of the suits. She was not a legal representative of the deceased Jyostna Deb. Admittedly, she was the wife of Umesh Deb, brother of deceased Jyostna, in whose house Jyostna used to reside. The Tribunal illegally directed 50% of the amount of compensation to be paid to Smti. She was not a legal representative of the deceased Jyostna Deb. Admittedly, she was the wife of Umesh Deb, brother of deceased Jyostna, in whose house Jyostna used to reside. The Tribunal illegally directed 50% of the amount of compensation to be paid to Smti. Ranu Bala Deb, and that part of the order, since illegal, is liable to be set aside. He has further submitted that Radha Rani Deb, the mother of deceased Jyotsna Deb, died during pendency of the suit, and no legal heir of Radha Rani Deb came forward to be a party in her place. Virtually, the appellant was the sole legal representative of the deceased Jyotsna Deb and was only entitled to get compensation, but the Tribunal illegally directed payment of 50% compensation to Smti. Ranu Bala Deb. He has also submitted that claimant-petitioner No. 2, Dhirendra Debbarma, the husband of deceased Jyotsna Deb i.e. the father of the appellant was living apart from the deceased for twenty five years, and the Tribunal awarded 5% of the compensation as a token to Dhirendra Debbarma, and that part of the direction the appellant does not challenge. Learned counsel, Mr. Bhattacharjee, therefore, prayed for setting aside the part of the order passed by learned Tribunal in respect of distribution of the amount and also prayed for enhancement of the compensation on the ground that the calculation was not proper. 8. Learned counsel, Mr. Datta appearing for respondent No. 3 has submitted that order of the learned Tribunal regarding distribution of the amount of 50% in favour of Smti. Ranu Bala Deb does not stand good since Ranu Bala was not a party to the suit. 9. As prescribed in Section 166 of the M.V. Act, an application for compensation arising out of an accident may be made, where the death has resulted from the accident, by all or any of the legal representatives of the deceased or by any agent duly authorized by the person injured or all or any of the legal representatives of the deceased, as the case may be. If all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application. 10. If all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application. 10. On perusal of the depositions of PWs.1, 2 and 3 and the finding of the learned Tribunal, it appears that the deceased Jyotsna Deb along with her mother Radha Rani Deb used to reside in the house of Umesh Ch. Deb, the brother of deceased Jyotsna, and both Umesh Ch. Deb and Radha Rani Deb died in the meantime. The appellant Sabita Datta(Deb) was given in marriage and she was residing with her husband but her husband also deserted her and she had been residing elsewhere, depending on her own income. Dhirendra Debbarma, the husband of deceased Jyostna Deb was also residing elsewhere, and there was no relation between Dhirendra and Jyostna for twenty five years before the accidental death of Jyotsna. Ranu Bala Deb is the widowed wife of Umesh Ch. Deb in whose house deceased Jyotsna with her mother used to reside. The said Smti. Ranu Bala Deb (witness No. 3) is/was neither a legal representative nor a dependent on the income of the deceased and she was not even a party to either of the suits and so the direction of the Tribunal to pay 50% of the compensation to said Ranu Bala Deb was not only uncalled for but was also absolutely illegal. Ranu Bala Deb, in her statement, nowhere stated that she was a member of the family of the deceased or that the deceased used to maintain them though they were not the legal representatives of the deceased. The distribution of 50% of compensation, in favour of Ranu Bala Deb, therefore, cannot sustain and liable to be interfered. The argument of learned counsel, Mr. Bhattacharjee towards enhancement of compensation, as I find, has no merit at all since the calculation of compensation, taking into account, the age and income of the deceased, was rightly made by the Tribunal, and I find no reason at all to enhance the compensation further. Accordingly, the appeal is partly allowed. 11. The argument of learned counsel, Mr. Bhattacharjee towards enhancement of compensation, as I find, has no merit at all since the calculation of compensation, taking into account, the age and income of the deceased, was rightly made by the Tribunal, and I find no reason at all to enhance the compensation further. Accordingly, the appeal is partly allowed. 11. The direction of the learned Tribunal to pay 50% of the awarded compensation to Ranu Bala Deb (witness No. 3), wife of Umesh Ch. Deb, is set aside. The appellant, Sabita Datta(Deb), who was the claimant-petitioner of TS(MAC) No. 24 of 1995 shall be entitled to get 95% of the compensation with interest thereon and the rest 5% shall be in favour of claimant petitioner No. 2, Sri Dhirendra Debbarma. 12. With the above modification in the judgment and award, passed by learned Tribunal, the appeal is disposed of. 13. Send back the L.C. records along with a copy of this judgment.