HIGH COURT OF TRIPURA
AGARTALA
MAC App. No.91 of 2024
Magma HDI, General Insurance Company Ltd.,
Represented by its General Manager,
Magma House, 24 Park Street,
Kolkata- 700016, West Bengal.
Local office at Netaji Chowmuhani,
Within the building of HDFC Bank,
P.O. Agartala, P.S. West Agartala,
District: West Tripura, PIN- 799001.
(Insurer of Truck bearing No.TR-03-B-1805).
.
…Appellant
Versus
1. Smt. Parul Bala Pal,
W/O- Late Nirendra Rudra Paul,
Resident of Village- South Hurua,
P.O.- Kameswar,
P.S.- Dharmanagar, District- North Tripura
Pin- 799280.
...Claimant-Respondents.
2. Th. Suraj Singha,
S/O. Jatin Singha,
Resident of Kameswar, P.S. Dharmanagar,
District- North Tripura.
…Owner Respondent.
3. Sri Arpan Deb,
S/O. Sri Anjan Deb,
Resident of Vagyapur, Ward No.06,
P.S. Dharmanagar, Dist. North Tripura,
(Driver of vehicle No.TR-05-B-1800) (TATA Magic)
For Appellant(s) : Mr. Rajib Saha, Adv.
For Respondent(s) : Mr. Kundan Pandey, Adv,
Date of Hearing : 29.11.2024
Date of delivery of
Judgment and Order : 30.11.2024
Whether fit for
Reporting : NO
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JUSTICE BISWAJIT PALIT
HON’BLE MR.
Judgment & Order
This appeal under Section 173 of M.V. Act is filed
challenging the judgment and award dated 22.05.2024
delivered by Learned Member, MAC Tribunal, North Tripura,
Dharmanagar, in connection with case No.T.S. (MAC) No.16 of
2019.
02. Heard Learned Counsel, Mr. Rajib Saha, appearing
on behalf of the appellant-Insurance Company and also heard
Learned Counsel, Mr. Kundan Pandey, appearing on behalf of
the claimant-respondent. None appeared on behalf of the
respondent Nos.2 and 3 inspite of notice served upon them
properly.
03. Taking part in the hearing, Learned Counsel for the
appellant drawn the attention of the Court that in this case,
there was contributory negligence on the part of the deceased
but the Learned Tribunal below without appreciating the
evidence on record decided the case and determined the
compensation for which the present appellant has preferred
this appeal before this Court. So, Learned Counsel urged for
allowing this appeal by setting aside the judgment and award
of the Learned Tribunal below.
04. Learned Counsel for the appellant-Insurance
Company at this stage submitted that the Learned Tribunal
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below after considering the evidence on record rightly and
reasonably allowed the claim-petition of the claimant and
passed the judgment/award, but the Learned Tribunal below at
the time of determination of compensation awarded rate of
interest only at the rate of 6% per annum, which should be
atleast 7.5% for the sake of justice. No other points were
raised by Learned Counsels for the parties.
05. In this case, the respondent-claimant filed one
claim-petition under Section 166 of M.V. Act before the
Learned Tribunal below alleging inter alia that on 14.10.2018
at about 3.00 p.m. her son Ashish Rudra Paul was proceeding
towards Bagbassa from Missiontilla Bazar riding his elder
-05-A-8589 (Honda) and when he
brother’s bike vide No.TR
reached near brick field of one Usha Ranjan, that time one
vehicle TATA Magic vide No.TR-05B-1800 came from the
opposite direction with high speed suddenly dashed against the
bike of the rider and destroyed the bike, for which the rider
sustained multiple bleeding and grievous injuries all over his
body. Immediately, the local people shifted the injured Ashish
Rudra Paul to Dharmanagar District Hospital for treatment.
Thereafter, the attending doctor of the said hospital referred
the injured to Silchar Medical College & Hospital for his better
treatment and then the family members of the injured shifted
him to Silchar Medical College & Hospital on the same day, but
unfortunately on arrival at Silchar, the injured succumbed to
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his injury in course of treatment and according to the
petitioner, the accident took place due to rash and negligent
driving of the driver of the said TATA Magic vehicle. It was
further stated that the deceased Ashish Rudra Paul was aged
about 24 years 11 months at the time of accident and he
passed B.Com examination in the year 2016 from
Dharmanagar Govt. Degree College and prior to his death he
was working as GDSMC-II under Head Post Office,
Dharmanagar and his monthly salary was 11,984/-. Hence, the
respondent-claimant filed the claim-petition before the
Tribunal.
On receipt of notice the O.P. Nos.1 and 2 appeared
and filed one written statement denying the assertions of the
respondent-claimant-petitioner in the claim-petition and
submitted that the O.P. No.1 is the registered owner of the
offending vehicle bearing registration No.TR-05B-1800 (TATA
MEGA XL BSIV), which was insured with the Insurance
Company vide policy No.P0019000100/4103/804641 and the
same was valid w.e.f. 29.05.2018 to mid night of 28.05.2019
and the vehicle had valid registration and other relevant
documents and it was also stated that the O.P. No.2 was the
driver of the offending vehicle. Hence, the O.P. Nos.1 and 2 by
filing their written statement prayed for dismissal of the claim-
petition.
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06. The appellant as Insurance Company also contested
the case before the Tribunal denying the assertions of the
respondent-claimant-petitioner in the claim-petition and in
para No.15 it was asserted that the alleged accident occurred
due to contributory negligence on the part of the deceased as
the deceased was also riding a bike bearing No.TR-05-A-8589
with his two friends as pillion rider on the day of alleged
occurrence of offence. But the claimants did not make the
owner and insurer of the involved bike in the case as party. So,
the Insurance Company by the written statement prayed for
dismissal of this claim-petition and it was further submitted
that claim-petition was subjected to strict proof by the
petitioners.
Before the Learned Tribunal, the claimant-petitioner
adduced 3 nos. of witnesses including the respondent-
claimant-petitioner and relied upon some documentary
evidence which were marked as exhibits. For the sake of
convenience the names of the witnesses of the respondent-
claimant-petitioner and the exhibits are mentioned herein
below:
Witnesses of Claimant-petitioner:-
PW1– Smt. Parul Bala Paul
PW2- Sri Biswajit Deb
PW3-Sri Biswajit Malakar
Exhibits of PW1:-
(i) Certified copy of post mortem report of
deceased Ashish Rudra Paul in connection
with Ghungoor OP GD entry no. 266 dated 14-
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10-2018 total in five sheets marked as
Exhibit-1(i) to 1(v).
(ii) Certified copy of inquest report prepared
in respect of dead body of deceased Ashish
Rudra Paul in connection with Ghungoor OP
GD entry no. 266 dated 14-10-2018 in one
sheet marked as Exhibit-2.
(iii) Certified copy of charge sheet in
connection with Dharmanagar PS case no.
2018 DMN 160 under Section 279/338 of IPC
and under Section 179/187 of M. V. Act and
added Section 304A of IPC in six sheets of
paper marked as Exhibit-3(i) to 3(vi).
(iv) Certificate issued by the Ministry of
Communication, Department of Posts, Govt. of
India dated 05-02-2019 confirming that
deceased Ashish Rudra Paul was working as a
Daily Rated Worker in Dharmanagar Head
Post Office marked as Exhibit-4.
(v) Copy of birth certificate of the deceased
bearing registration no. 314 dated 31-12-
1997 marked as Exhibit-5.
(vi) Copy of the marksheet of B. Com (Part-
III) issued by Tripura University for the year
2016 of the deceased as Exhibit-6.
(vii) Copy of death certificate of husband of
the claimant namely Nirendra Rudra Paul
bearing No.D-2019: 16-01246-000015 dated
17-10- 2019 marked as Exhibit-7.
On the other hand, the O.P. No.2, Sri Arpan Deb
was examined as OPW1 and proved certain documents which
were also marked as exhibits:
(a) Copy of the insurance policy of the vehicle
bearing No. TR-05B1800 marked as Exhibit-A.
(b) Copy of the registration certificate of the
vehicle bearing No. TR05B-1800 as Exhibit-B.
(c) Copy of driving license of Sri Arpan Deb
marked as Exhibit-C.
(d) Downloaded copy of the judgment dated
25-07-2022 in PRC (SP) 39 of 2019 passed by
Ld. J. M. First Class, Dharmanagar marked as
Exhibit-D.
07. Finally, after taking evidence and also on conclusion
of the enquiry, Learned Tribunal below by the judgment and
award dated 22.05.2024 allowed the claim-petition filed by the
respondent-claimant-petitioner. The operative portion of the
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judgment/award dated 22.05.2024 of the Learned Tribunal
below runs as follows:
O R D E R
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.
The Opposite Party No.3, The MAGMA HDI
General Insurance Co. Ltd. Block 3B, B201-
202, Ecospace Business Park, Ambuja Reality
Campus, Action Area 2, New Town,
Kolkata,West Bengal-700156 shall pay the
compensation of Rs.20,14,000/- (Rupees
twenty lakh fourteen thousand) only to the
claimant-petitioner 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. 08-03-2019 till the date of
realization.
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 namely Smt. Parul Bala Pal
is a woman, it is ordered that 50% of the
awarded amount 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 awarded amount 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 her livelihood which she might have
incurred for the death of the deceased.
Supply a copy of the judgment to the
claimant-petitioner for her ready reference
and a copy of the judgment shall also be
communicated to the Opposite Party No.3,
The MAGMA HDI General Insurance Co. Ltd.
Block 3B, B201-202, Ecospace Business Park,
Ambuja Reality Campus, Action Area 2, New
Town, Kolkata,West Bengal-700156 to
facilitate the payment of the awarded
compensation in time.
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Prepare the award accordingly. Thus, the
instant claim petition is disposed off on
contest.
From the judgment/award of the Learned Tribunal
below, it appears that the Learned Tribunal below after
determination of the calculation awarded a sum of
Rs.20,14,000/- to the respondent-claimant-petitioner with 6%
interest per annum from the date of filing the claim-petition till
the date of realization.
08. I have heard arguments of both the sides and also
perused the judgment delivered by the Learned Tribunal below
including the evidence on record of the contesting parties. As
already stated the claimant-petitioner to substantiate the
issues adduced 3 nos. of witnesses.
09. The respondent-claimant-petitioner as PW1 in her
examination-in-chief in affidavit supported her version made in
the claim-petition.
During cross-examination by the appellant-
Insurance Company, she stated that her son, Ashish Rudra
Paul along with two more riders were riding the motor bike
bearing No.TR-05A-8589 at the time of accident and her son
did not have any driving licence. But she did not make her son,
Debashish Rudra Paul, the registered owner in this case as
party.
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10. PW2, Biswajit Deb in his examination-in-chief
supported the version of the PW1, i.e. the respondent-
claimant-petitioner.
During cross-examination, he was declined to cross-
examination by the OP Nos.1 and 2 and during cross-
examination by the appellant-Insurance Company nothing
came out relevant.
11. Similarly, PW3, Biswajit Malakar also in his
examination-in-chief in affidavit supported the version of the
respondent-claimant-petitioner in his examination-in-chief.
He was declined to cross-examination by the O.P.
Nos.1 and 2 but in course of cross-examination by the
appellant-Insurance Company, nothing also came out relevant.
12. O.P. No.2, as already stated was examined in this
case as O.P.W1. He relied upon some documents in support of
his defence, which were marked as Exhibit A to D, as already
stated. After going through the evidence on record and also
from the exhibited documents including the charge-sheet relied
upon by the respondent-claimant-petitioner, it appears that on
the alleged day, i.e. on 14.10.2016 at about 1500 hours when
the son of the claimant-respondent, Ashish Rudra Paul along
with his two friends were proceeding towards Bagbassa to
Dharmanagar with a motor bike being driven by Ashish Rudra
Paul vide No.TR-05A-8589, which was owned by Debashish
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Paul, elder brother of the deceased and when the bike reached
near brick field of one Usha Ranjan that time one TATA ACE
vehicle bearing No.TR-05B-1800 came in high speed from the
opposite direction and dashed against the bike for which the
victim fell down on the road from the bike and received severe
bleeding injury on his person. He was shifted to Dharmanagar
Hospital from where he was shifted to Silchar Medical Hospital
for better treatment and during treatment the victim
succumbed to his injury and after post mortem examination,
the doctor opined that the death was caused as a result of
injuries as described which were antemortem and caused by
blunt force impacts. The said charge-sheet was marked as
Exhibit-3(i)-3(vi). The said documentary evidence relied upon
by the respondent-claimant-petitioner was remained
unrebutted or unchallenged by the contesting opposite parties
including the present appellant. More so, to substantiate the
defence, the present appellant-Insurance Company did not
adduce any oral/documentary evidence on record.
13. Situated thus, after going through the evidence on
record, it appears that the plea of contributory negligence as
alleged by Learned Counsel for the appellant, in course of
hearing of argument could not be proved by the appellant
before the Learned Tribunal below by adducing evidence on
record. So, the plea as taken by the appellant-Insurance
Company, in course of hearing of argument before this Court
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cannot be accepted in the eye of law, although the plea of
contributory negligence was taken by the appellant-Insurance
Company in the written statement before the Learned Tribunal
below. Thus, it appears to this Court that the Learned Tribunal
below after appreciating the oral/documentary evidence on
record rightly and reasonably has determined the amount of
compensation and delivered the judgment/award in favour of
the respondent-claimant-petitioner properly for which there is
no scope to interfere of the award by this Court at this stage.
More so, there was no cross-objection from the side of the
respondent-claimant before this Court regarding enhancement
of the rate of interest as awarded by the Learned Tribunal
below, so, the plea taken by Learned Counsel for the
respondent-claimant-petitioner also cannot be accepted at this
stage.
14. In course of hearing of argument, Learned Counsel
for the respondent-claimant-petitioner relied upon one citation
Sudhir Kumar Rana vs.
of the Hon’ble Apex Court in
Surinder Singh and Others dated 06.05.2008 reported in
(2008) 12 SCC 436
, wherein in para No.9 Hon’ble the Apex
Court has observed as under:
“9. If a person drives a vehicle without a
licence, he commits an offence. The
same, by itself, in our opinion, may not
lead to a finding of negligence as regards
the accident. It has been held by the
courts below that it was the thing to say
that the appellant was not possessing
any licence but no finding of fact has
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been arrived at that he was driving the
two-wheeler rashly and negligently. If he
was not driving rashly and negligently
which contributed to the accident, we fail
to see as to how, only because he was
not having a licence, he would be held to
be guilty of contributory negligence.”
Referring the same, Learned Counsel for the
Insurance Company submitted that if it is proved that the rider
of the bike had no driving licence, for that it cannot be said
that there was negligence on the part of the rider towards the
accident and here in the case at hand, there was no rebuttable
evidence on record from the side of the contesting respondents
that there was contributory negligence on the part of the
deceased at the time of the accident. So, the plea taken by the
appellant in this appeal is not sound in law and cannot be
legally sustained.
15. Thus, considering the facts and circumstances of the
case, I do not find any scope to interfere with the
judgment/award delivered by the Learned Tribunal below.
Hence, the appeal is liable to be dismissed.
16. In the result, the appeal filed by the appellant
stands dismissed being devoid of merit. The judgment and
award dated 22.05.2024 delivered by the Learned Tribunal
below is hereby upheld and accordingly, it is affirmed. The
appellant-Insurance Company be asked to deposit the amount
of compensation as ordered by the Tribunal by the said
judgment dated 22.05.2024 to the Registry of this High Court,
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within a period of six (6) weeks from the date passing of this
judgment/order. From the record, it appears that as per order
of this Court dated 06.09.2024, the appellant-Insurance
Company has already deposited a sum of Rs.10,07,000/- to
the Registry of this High Court vide cheque No.607911 dated
24.09.2024. So, the appellant-Insurance Company be asked to
deposit the balance amount with accrued interest to the
Registry of this High Court within the aforesaid period. With
this observation, this appeal stands disposed of.
Send down the LCR along with a copy of the
judgment/order to the Learned Tribunal below and copy of this
judgment be furnished to the Learned Counsel for the
Insurance Company and also to the Learned Counsel for the
respondent-claimant-petitioner.
Pending application(s), if any, also stands disposed
of.
JUDGE
Digitally signed by
MOUMITA DATTA
MOUMITA DATTA
Date: 2024.12.02
19:47:16 +05'30'
Purnita