Research › Search › Judgment

Tripura High Court · body

2020 DIGILAW 85 (TRI)

Namita Sarkar v. Shantalal Debbarma

2020-07-03

AKIL ABDUL HAMID KURESHI

body2020
JUDGMENT : Akil Abdul Hamid Kureshi, J. 1. This appeal and cross-objections arise out of the award of the Motor Accident Claims Tribunal, West Tripura, Agartala, dated 6th February, 2019. Appeal is filed by the original claimants. They seek enhancement of the compensation awarded by the Claims Tribunal. Cross-objections are filed by the insurance company. Insurance company wishes that it should be absolved of the liability to satisfy the award. 2. These proceedings arise in following background: On 28th February, 2016 one Rakhal Sarkar aged about 54 years, a Government servant, was proceeding on foot at about 6.00 p.m. on Salbagan - Chanmari Road situated within New Capital Complex Police Station, Agartala. Near Chanmari Class - XII School he was knocked down by a speeding motorcycle. According to claimants as well as insurance company, the said motorcycle at the time of accident was driven by one Tushar Debbarma, a young boy aged about 16 years and who obviously did not have a valid driving licence to ride the said motorcycle. The deceased left behind his widow and two children, a son and a daughter as his dependants. They filed a claim petition before the Claims Tribunal seeking compensation of Rs. 48,75,000/- from the owner and insurer of the motorcycle involved in the accident. Incidentally, one Shantalal Debbarma father of Tushar Debbarma was the registered owner of the vehicle. The vehicle was insured with ICICI Lombard General Insurance Company. 3. Before the Claims Tribunal, opponent No. 1, owner of the vehicle filed a written statement taking the stand of total denial claiming that his motorcycle was never involved in the accident. The insurance company filed a written statement claiming that Tushar Debbarma the rider of the motorcycle did not have a valid licence and that therefore, there was a clear breach of the terms of the policy of insurance. The insurance company, therefore, should be absolved of its liability. 4. Before the Claims Tribunal, Clamant No. 1, widow of the deceased was examined. Her deposition was mainly centering around the age, occupation and income of the deceased. The claimants produced a copy of the insurance policy. An FIR was lodged with the nearby Police Station by the son of the deceased alleging that Tushar Debbarma had caused a fatal accident by his rash and negligent driving. The police had investigated the case and filed charge sheet against Tushar Debbarma. The claimants produced a copy of the insurance policy. An FIR was lodged with the nearby Police Station by the son of the deceased alleging that Tushar Debbarma had caused a fatal accident by his rash and negligent driving. The police had investigated the case and filed charge sheet against Tushar Debbarma. Copy of the charge sheet was also produced by the claimants. 5. Original opponent No. 1 Shri Shantalal Debbarma deposed before the Claims Tribunal. In his deposition, he took a substantial deviation from the contents of his written statement. In the deposition, he virtually admitted that his motorcycle was involved in an accident which caused the death of Rakhal Sarkar. He, however, claimed that he was the rider of the motorcycle and not his son when the accident took place. 6. On behalf of the insurance company one Bitopen Gogoi, the Legal Manager of the insurance company, was examined. He deposed that the insurance company had collected information regarding the accident through its investigator Tanay Goswami. A charge sheet was filed by the police. The vehicle was seized. The materials showed that the vehicle was driven by a driver who did not have a valid driving licence at the time of accident. The owner had thus entrusted the vehicle to his son who was a minor and who did not have a valid licence. There was thus a clear breach of the terms of the policy. On account of such willful breach of the policy by the insured, the insurance company should be absolved of its liability to satisfy the award. 7. Before the Tribunal it had come on record that the deceased was a Government servant. He was drawing a gross salary of Rs. 29,413/- at the time of accident. He was aged about 54 years. Considering his age the Tribunal applied a multiplier of 11 as provided by the Supreme Court in the judgment in case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & another, reported in (2009) 6 SCC 121 . The Tribunal set apart one-third for the personal expenditure of the deceased and awarded a sum of Rs. 25,88,344/- towards loss of dependency benefits. To this, the Tribunal added a sum of Rs. 50,000/- towards consortium payable to the claimant No. 1 widow of the deceased, a sum of Rs. 25,000/- towards funeral expenses and a further sum of Rs. The Tribunal set apart one-third for the personal expenditure of the deceased and awarded a sum of Rs. 25,88,344/- towards loss of dependency benefits. To this, the Tribunal added a sum of Rs. 50,000/- towards consortium payable to the claimant No. 1 widow of the deceased, a sum of Rs. 25,000/- towards funeral expenses and a further sum of Rs. 10,000/- towards loss of estate. The Tribunal thus awarded a total compensation of Rs. 26,73,344/-. 8. On the question of liability of the insurance company, the Tribunal recorded the controversy but rejected the opposition of the insurance company on the grounds that the police had arrested the son of the owner after about 9(nine) days of the accident, the insurance company had not produced the policy certificate to prove the terms and conditions of the insurance and lastly, that the FIR and the charge sheet cannot be considered substantive evidence for accepting the contention of insurance company. In the result, the insurance company was held liable to satisfy the award. 9. Appearing for the appellants-claimants learned counsel Mrs. S. Deb(Gupta) raised two contentions. She first submitted that the Claims Tribunal did not award any rise for future income. She relied on the decision of Supreme Court in case of National Insurance Company Limited Vs. Pranay Sethi & others reported in (2017) 16 SCC 680 to contend that there should have been 15% rise for future income since the deceased was in the age group of 50-60. She placed reliance on a recent judgment of the Supreme Court in the case of United India Insurance Company Ltd. Vs. Satinder Kaur alias Satwinder Kaur and Ors., Civil Appeal No. 2705/2020 reported in dated 30th June, 2020 to contend that even the children of the deceased are entitled to separate payment of loss of consortium. 10. Learned counsel Mr. Rajib Saha for the insurance company who is the cross-objector, submitted that there was reliable evidence on record to establish that Tushar Debbarma was the rider of the motorcycle when the accident took place. The Claims Tribunal made serious errors in appreciating such evidence. The insurance company should, therefore, be absolved of its liability. 11. Learned counsel Mr. Raju Datta for the owner submitted that there was no evidence to show that Tushar Debbarma was riding the motorcycle at the time of accident. The Claims Tribunal made serious errors in appreciating such evidence. The insurance company should, therefore, be absolved of its liability. 11. Learned counsel Mr. Raju Datta for the owner submitted that there was no evidence to show that Tushar Debbarma was riding the motorcycle at the time of accident. Mere filing of the charge sheet by the police would not be sufficient. The owner has filed written statement as well as had led his evidence before the Claims Tribunal. From such evidence it was clear that the motorcycle was driven by the owner and not by anyone else. Since the owner had a valid driving licence and the vehicle was duly insured, the insurance company was, correctly held liable to satisfy the award. 12. I may first address the question of quantum of compensation. As per the evidence on record, the deceased was drawing a salary of Rs. 29,413/- at the time of accident. A salary certificate dated 17th May, 2017 was produced before Claims Tribunal at Exbt. 3. This salary certificate records the deductions from the pay of the deceased which principally includes GPF contribution of Rs. 3,000/-. Significantly, this does not indicate any deduction of tax at source. This is important because as per the settled law, not the gross salary but the net salary after deducting payable taxes would have to be taken into consideration for awarding motor accident compensation. Since there is no deduction of tax at source and since the deceased was a Government servant, it can be safely presumed that he did not have any tax liability. Only deduction which should have been applied by the Claims Tribunal is of Professional Tax of Rs. 208/-. The net celery of the deceased would, therefore, be Rs. 29,205/-. As per the decision of Pranay Sethi(supra), since the deceased was aged 54 years, there shall be 15% rise for future income which comes to Rs. 4,380/-. The prospective income would, therefore, come to Rs. 33,585/- per month or Rs. 4,03,020/- per annum. Setting apart one-third thereof for the personal expenditure of the deceased the amount would come to Rs. 1,34,340/-. Thus loss of dependency benefits for the claimants per annum, therefore, would be Rs. 2,68,680/-. Applying a multiplier of 11 the loss of dependency benefits would come to Rs. 29,55,480/-. 13. Coming to conventional figures, the Supreme Court in case of Pranay Sethi(supra), has standardised such payments. 1,34,340/-. Thus loss of dependency benefits for the claimants per annum, therefore, would be Rs. 2,68,680/-. Applying a multiplier of 11 the loss of dependency benefits would come to Rs. 29,55,480/-. 13. Coming to conventional figures, the Supreme Court in case of Pranay Sethi(supra), has standardised such payments. It is provided that there shall be award of Rs. 40,000/- towards loss of consortium, Rs. 15,000/- for loss of estate and Rs. 15,000/- for funeral expenses. In a recent judgment the Supreme Court in case of Satinder Kaur alias Satwinder Kaur (supra), dealt with the question of payment of consortium. Decision of the Supreme Court in case of Pranay Sethi (supra) was cited. The Supreme Court in the said judgment came to the conclusion that loss of consortium is to be paid not only to the spouse of the deceased but also to children in case of death of a parent or to the parents in case of death of any child. The Supreme Court awarded separate amounts of loss of consortium at the rate Rs. 40,000/- per such claimant. Relevant portion of the judgment of the Supreme Court reads as under: "b) 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. In Magma General Insurance Co. Ltd. v. Nanu Ram & Ors., (2018) 18 SCC 130 , 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. 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. 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 child during their lifetime. Children are valued for their love and affection, and their role in the family unit. 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. 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). 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 (supra), 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(supra), this Court gave a comprehensive interpretation to consortium to include spousal consortium, parental consortium, as well as filial consortium. The Constitution Bench in Pranay Sethi (supra), 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(supra), this Court gave a comprehensive interpretation to consortium to include spousal consortium, parental consortium, as well as filial consortium. Loss of love and affection is comprehended in loss of consortium. 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. xxxxxxxxx 9.7. Insofar as the conventional heads are concerned, the deceased Satpal Singh left behind a widow and three children as his dependants. On the basis of the judgments in Pranay Sethi (supra) and Magma General (supra), the following amounts are awarded under the conventional heads:- (i) Loss of Estate: Rs. 15,000 (ii) Loss of Consortium: (a) Spousal Consortium : Rs. 40,000 (b) Parental Consortium: 40,000 x 3 = Rs. 1,20,000 (iii) Funeral Expenses : Rs. 15,000/- xxxxx 10. In light of the aforesaid discussion, the Claimants are awarded compensation as follows: (i) Income : Rs. 3,87,192 p.a. (ii) Deduction towards Personal Expenses : 50% (iii) Future Prospects : 30% (iv) Multiplicand : Rs. 2,51,675 (3,87,192 - 50% + 30%) (v) Multiplier : 15 (vi) Loss of Dependency : Rs. 37,75,125 (2,51,675 x 15) (vii) Funeral Expenses : Rs. 15,000 (viii) Loss of Estate : Rs. 15,000 (ix) Loss of Spousal Consortium : Rs. 40,000 (x) Loss of Parental Consortium to each of the 3 children : Rs. 1,20,000 (xi) Total compensation : Rs. 39,65,125 (xii) Deduction on account of contributory negligence : 50% Total compensation to be paid : Rs. 19,82,563/-." 14. Under the circumstances, they shall be awarded Rs. 40,000/- by way of loss of consortium in favour of all three claimants separately i.e. Rs. 1,20,000/- in all. The claimants would also receive Rs. 15,000/- towards loss of estate and Rs. 15,000/- for funeral expenses. The total compensation payable, therefore, would be Rs. 31,05,480/- (i.e. Rs. 29,55,480 + 1,20,000 + 15,000 + 15,000/-). 15. We may now come to the question of liability of the insurance company. In the claim petition, the claimants had averred that the accident had taken place on account of rash and negligent driving of Tushar Debbarma. Claimant No. 1 had given a similar deposition. 31,05,480/- (i.e. Rs. 29,55,480 + 1,20,000 + 15,000 + 15,000/-). 15. We may now come to the question of liability of the insurance company. In the claim petition, the claimants had averred that the accident had taken place on account of rash and negligent driving of Tushar Debbarma. Claimant No. 1 had given a similar deposition. An FIR was filed by the son of the deceased to this effect. They were, however, not the eye-witnesses to the accident. The police had taken cognizance of the FIR and investigated into the allegations and filed a charge sheet against the said juvenile. As noted, the opponent No. 1 owner of the vehicle had filed a written statement taking a stand of total denial. He, in fact, denied that his vehicle was ever involved in an accident. He substantially modified the stand of total denial in his deposition before the Claims Tribunal in which he had made the following statements: "4. That, the statements of the claimant petitioners that on 28.02.2016 at about 18.00 hours the motor cycle bearing No. TR-01V-9136 dashed the victim on the back side due to rash and negligent driving at a high speed are not true and correct and hence denied by me. The accident took place due to contributory negligence of the victim. .........This is true to my knowledge. xxxxxxxxx 7. That, I am the owner of the motor bike and it has been used and driven by me for my personal need and on the date of alleged accident I was riding the said motor bike and no accident occurred due to my rash and negligent driving. So, I am not liable for making any payment of compensation as the alleged accident took place due to the contributory negligent on the part of the victim. .........This is true to my knowledge." As per the deposition of the owner thus the accident did take place which caused the death of the pedestrian, that he himself was driving the motorcycle at the time of the accident but that he was not negligent in driving the motorcycle. It was the deceased who was responsible for causing the accident. 16. There is, thus, a significant shift in the stand of the owner of the vehicle from the written statement in which he had taken the position of total denial, even denying the involvement of his vehicle in the accident. It was the deceased who was responsible for causing the accident. 16. There is, thus, a significant shift in the stand of the owner of the vehicle from the written statement in which he had taken the position of total denial, even denying the involvement of his vehicle in the accident. In his deposition before the Tribunal, he shifted to a position where he admitted that his vehicle was involved in an accident which caused the death of the pedestrian, that he was the rider of the motorcycle and not his son and lastly, that he was not negligent in driving the motorcycle but the accident occurred due to negligence of the pedestrian. The material shift in the stand of the owner would make him a highly unreliable witness having no regard for truth. His deposition, therefore, would be of no substance. The other material on record suggested that the accident took place near Chanmari Class - XII School where learned counsel for the owner admitted his son was studying. On a complaint filed by the son of the deceased, the police had investigated and found prima facie evidence against the minor of having caused accident by rash and negligent driving. In a motor accident claims case, where the nature of proof required is one of preponderance of probabilities, I find sufficient evidence to hold that it was not the owner but his son who was driving the motorcycle at the time of accident. His own prevarications would further strengthen this belief. Initially he had claimed that his motorcycle was never involved in an accident. Faced with the possibility of satisfying the award, he took a material shift in his stand and claimed that it was not his son but he was the one driving the motorcycle at the time of accident. The Claims Tribunal committed a serious error in rejecting this contention of the insurance company on the ground that the insurance policy was not on record. The claimants had produced a copy of the policy and even otherwise, the Court would have perhaps been justified in taking a judicial notice of the fact that driving of a motor vehicle by an under-aged person without licence is a serious breach of the condition of the insurance policy. The claimants had produced a copy of the policy and even otherwise, the Court would have perhaps been justified in taking a judicial notice of the fact that driving of a motor vehicle by an under-aged person without licence is a serious breach of the condition of the insurance policy. Since it is established that it was Tushar Debbarma the son of the owner who was driving the motorcycle at the time of the accident, the insurance company must be absolved of its liability to satisfy the award. 17. As is often done, the principle of pay and recovery must be applied in the present case. In the result, the appeal and cross objections are disposed of with following directions: (a) The amount of compensation payable to the claimants is enhanced to Rs. 31,05,480/-. The entire amount shall carry simple interest @ 7% per annum from the date of claim petition till actual payment. (b) The insurance company is absolved of its liability to satisfy the award. However, the insurance company shall deposit the deficit amount with cost and interest before the Claims Tribunal within a period of 8(eight) weeks from today. (c) It would be open for the insurance company to recover such amount from the owner by way of filing a separate proceeding for such purpose. (d) As and when the insurance company deposits such amount before the Claims Tribunal, the same would be apportioned in the proportion of 60% in favour of claimant No. 1, widow of the deceased and 20% each in favour of the remaining 2(two) claimants i.e. his son and daughter. (e) Out of the total amount that the insurance company my deposit, 75% would be invested in a fixed deposit in any nationalized Bank for a period of 5(five) years in the proportion of apportionment in favour of the claimants as provided above. The respective claimants to the extent of their shares would receive periodic interest on such fixed deposits. Upon completion of the period of 5(five) years, the amounts would be paid over the claimants in proportion of their respective shares. 18. MAC Appeal and Cross-objections are disposed of accordingly. Records may be transmitted to the Claims Tribunal. Pending application(s), if any, also stands disposed of.