Partly allowed

Netai Sarkar v. Mrinal Chakraborty and Anr.

Tripura HC16 Jun 2017MAC App./137/2012

Case brief

AI extract

What is this about?

This appeal challenged an award of ₹54,950 by the Motor Accident Claims Tribunal, specifically regarding the denial of interest from the claim date and the quantum of compensation. The Court upheld the Tribunal's discretion under Section 171 of the Motor Vehicles Act to deny interest from the claim date due to the appellant's inordinate delay and failure to prove the case for nearly a decade.

What did the court decide?

The appeal was dismissed as there was no merit; the impugned judgment awarding compensation without interest from the date of claim was maintained.

Netai Sarkar Vs Mrinal Chakraborty and Anr. — Civil Procedure and Limitation | Tripura HC (2017)

¶1

THE HIGH COURT OF TRIPURA A G A R T A L A

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MAC APP. NO.137 OF 2012

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Shri Netai Sarkar, S/O. Late Haricharan Sarkar, Vill : West Barjala, P.O. : Bishramganj, P.S. : Bishalgarh, Dist. : Shipahijala.

¶4

…. Claimant-Appellant.

¶5

-: Versus :-

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Shri Mrinal Chakraborty, S/O. Lt. Chintaharan Chakraborty, Resident of Vill : Brahmabari, (Near Ld. District Judges Court), P.O. : Udaipur, P.S. : R.K. Pur, Dist. : Gomati District. [Owner of vehicle No.AS-01-B-3970, (Truck)].

¶7

The National Insurance Company Ltd., (Represented by Divisional Manager), Akhaura Road, P.O. : Agartala-799001, West Tripura.

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….. O.P.-Respondents.

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B E F O R E

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THE HON’BLE THE CHIEF JUSTICE

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Counsel for the appellant	: Mr. S. Deb, Sr. Advocate. Mr. P.K. Pal, Advocate.
Counsel for the respondents	: Mr. S. Lodh, Advocate.
Date of hearing	: 16-5-2017.
Date of delivery of Judgment & Order	:16-06-2017

¶12

JUDGMENT & ORDER

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Dissatisfied with the judgment dated 21-7-2012 passed by the learned Member, Motor Accident Claims Tribunal, Court No. 2, West Tripura, Agartala, in T.S. (MAC) No. 45 of 1998 awarding a compensation of 54,950/with interest @ 9% per annum only with effect from 22-3-2012 and not from the date of the claim petition, the appellant is filing this appeal for enhancement of the compensation.

¶14

This case has a chequered history. The original claim petition filed was dismissed by the Tribunal by the order dated 23-4-2004 with nil award whereupon MAC Appeal No. 77 of 2004 was filed before this Court, which by

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MAC APP NO.137/2012 Page 1 of 7

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the judgment dated 22-3-2012 set aside the judgment remanded the case to the Tribunal to enable the appellant to adduce additional evidence with respect to the injuries sustained by the appellant and the treatment given to him. The case of the appellant is that on 4-8-1997 at about 10 PM, while he was proceeding towards his house, a truck bearing registration No. AS-01-B3979 driven with a high speed dashed against him and his mother. The appellant in the process sustained serious injuries and was subsequently admitted to GB Hospital for treatment. In connection with this accident, the Bishalgarh Police Station case No. 60/97 was registered U/s 279/338 IPC. The appellant, therefore, filed the claim petition claiming a compensation of ₹7,63,000/-. The claim petition was opposed by the owner of the vehicle (respondent No. 1) and the National Insurance Company Ltd. (respondent No. 2) by filing their respective written statements. Both of them denied that any accident ever took place on the relevant date. On the pleadings of the parties, the following issues were framed by the Tribunal:

¶17

Whether Shri Nitai Sarkar was injured in a motor accident on 04-8-1997 at about 10 PM at West Barjala near the house of the injured, East side of Bishalgarh-Bisramganj road from Udaipur?

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Whether said accident occurred due to rash and negligent driving of the driver of the vehicle AS-01-B-3979 (Truck)?

¶19

Whether the claimant petitioner is entitled to get compensation, if so, what should be the just compensation?

¶20

Who is liable to pay compensation, if awarded?

¶21

In the course of trial, the appellant examined himself as PW-1 and exhibited some documents. Another witness was examined by him as PW-2 to substantiate his claim. No witness was, however, examined by the respondents; only some documents were exhibited by them. At the conclusion of the trial, the Tribunal passed the impugned judgment in the manner indicated earlier.

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MAC APP NO.137/2012 Page 2 of 7

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Assailing the impugned judgment, Mr. S. Deb, the learned senior counsel for the appellant, contends that the Tribunal in awarding interest not from the date of the claim petition has acted contrary to the provision of Section 171, Motor Vehicles Act, 1988, which says that simple interest shall be paid from such date not earlier than the date of making the claim. He further submits that the Tribunal has wrongly held that the income of the appellant was ₹2,400/- per month when it is a well-known fact that a carpentry works carried on by the appellant requires strenuous works and could have easily enabled him to earn a sum of ₹3,000/- per month had no accident not taken place. It is the contention of the learned counsel for the appellant that carpentry works requires use of both the hands, but due to fracture in his right shoulder, he could no longer carry on such occupation anymore; the Tribunal has thus erred in holding that such disablement was only for six months and not for the rest of his life. The learned counsel further submits that though the appellant is a self-employed person, yet in terms of the decision of the Apex Court in Santosh Devi v. National Insurance Company Ltd. and ors., AIR 2012 SC 2185 , he is entitled 30% increase in his total income over a period of time; this legal aspect of the matter has been completely overlooked by the Tribunal. He, therefore, submits that the impugned judgment cannot be sustained in law in the present form and the same is liable to be modified to enhance the compensation payable to the appellant. He also refers to the following decisions of the Apex Court to support his various contentions:- (i) Kumari Kiran through her father Harinarayan v. Sajjan Singh and others, (2015) 1 SCC 539, (ii) Syed Sadiq and others v. Divisional Manager, United India Insurance Company Limited, (2014) 2 SCC 735, (iii) Mohan Soni v. Ram Avtar Tomar and others, (2012) 2 SCC 269, (iv) Municipal Corporation of Delhi, Delhi v. Uphaar Tragedy Victims Association and others, (2011) 14 SCC 481, (v) Raj Kumar v. Ajay Kumar and another, (2011) 1 SCC 343, (vi) Arvind Kumar Mishra v. New India Assurance Company Limited

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MAC APP NO.137/2012 Page 3 of 7

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and another, (2010) 10 SCC 254 and (vii) National Insurance Co. Ltd. v. Keshav Bahadur and others, (2004) 2 SCC 370 .

¶26

Refuting the contentions of the learned counsel for the appellant, Mr. S. Lodh, the learned counsel for the insurer, maintains that the impugned judgment was passed by the learned Member of the Tribunal after duly taking all aspects into consideration, for which the interference is not called for. He submits that the appellant cannot expect enhancement of the compensation without evidence. He also submits that the appellant was solely responsible for the inordinate delay in disposal of the claim case right from the tile of the initial institution to this appellate stage and is, therefore, not entitled to any interest except from the date of the impugned award. He, therefore, contends that the appeal has no merit and is liable to be dismissed. Reliance is also placed by him on National Insurance Co. Ltd. v. Keshav Bahadur and others, (2004) 2 SCC 370 to fortify his contention.

¶27

Section 171, Motor Vehicles Act, 1988 (“the Act” for short) enables the awarding of simple interest at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf. It is to be noted that the interest is awarded for the damage done; it is being awarded to the claimant for being out of money which ought to have been paid to him. The question to be determined now is whether it is mandatory for the Tribunal to award interest from the date of the claim petition or whether the Tribunal has the discretion to refuse payment of interest from the date of the claim petition. Section 171 of the Act is in the following terms:

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“171. Award of interest where any claim is allowed .—

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Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf.”

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MAC APP NO.137/2012 Page 4 of 7

¶31

The Division Bench of the Madhya Pradesh High Court has an occasion to consider the provision of Section 171 of the Act in Bhayla and anr. v. Abdul Kayum and ors., AIR 1999 MP 90 and held as under:

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“A perusal of the provision shows that award of simple interest falls in the discretion of the Tribunal. It may or may not award it. If it does, it again lies in its discretion to award it from a particular date and at a reasonable rate. The Tribunal is not bound to award it in all events and circumstances which is evident from the word "May" occurring in the provision. It is a different matter that it cannot award interest from the date earlier than the date of claim application. But that would not imply that it was bound to award it from the date of claim petition. Nor is any right vested in the claimant to claim it from a particular date. It would all depend on facts and circumstances of the case leading to exercise of sound judicial discretion by the Tribunal. Therefore, it becomes fallacious to contend that Appellants had a right to claim it from the date of claim petition or Tribunal was bound to award it from that date. The correct position in law is that interest cannot be claimed by the claimants in motor accident claims as of right from a particular date and that the Tribunal is under no obligation to award it from the desired date. The matter falls in the discretion of Tribunal to be exercised judicially in accordance with recognised principles.”

¶33

In my opinion, the use of the word “may” in Section 171 is significant and sends a clear signal that the Tribunal is not bound to award interest in all events and circumstances. I am, therefore, in respectful agreement with the views taken by the Hon’ble Madhaya Pradesh High Court in Bhayla and anr. (supra) . In the case at hand, what dissuaded the Tribunal from awarding interest from the date of the claim petition and confined himself to awarding

¶34

MAC APP NO.137/2012 Page 5 of 7

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interest @ 9% per annum from 22-3-2012 i.e. the date of remand by this Court is that the appellant failed to prove his case by producing the relevant documents between 23-2-1998 to 21-3-2012. It may be noted that the claim petition was originally filed on 22-3-1998 or nearabout that but due to his inability to produce evidence, he was awarded nil award by the Tribunal. Again though the appeal was filed by the appellant as early as 2-8-2004, the same was kept frozen for the next 8 years, the appellant woke up from his slumber and filed an application for adducing additional evidence only on 142-2012. The said application was allowed by this Court by the order dated 234-2004 whereupon it remanded the case to the Tribunal. The Tribunal, on remand expeditiously disposed of the appeal on 21-7-2012. The question to be determined is whether the appellant, whose negligent conduct of his case is self-evident, could legitimately claim interest from the date of the claim petition, i.e. 23-2-1998? In my opinion, the answer must be in the negative. The Tribunal has correctly declined to award the interest from 23-2-1998, for which the interference is not called for.

¶36

In so far as the income of the appellant is concerned, the Tribunal, taking note of the fact that he was carrying on the occupation of carpentry at the time of the accident, held that he used to earn ₹2,400/- per month. In the absence of satisfactory evidence that he earned more than this amount, such finding cannot be assailed, more so, when the value of rupee at the time of the accident was quite high. May be, in the present day context, it can be on the lower side, but not so in the year 1998. Therefore, the assessment of the Tribunal with respect to the income of the appellant at ₹2,400/- cannot be faulted with.

¶37

This then takes me to the contention of the learned counsel for the appellant that the Tribunal wrongly held that the disablement of the appellant was only for six months and not for the rest of his life. The Tribunal recorded the findings, on the basis of the discharge certificate as well as the injury report issued by the hospital, that the appellant sustained grievous injury on

¶38

MAC APP NO.137/2012 Page 6 of 7

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his right ear and simple injury on his right shoulder following the road traffic accident and had remained hospitalised from 4-8-1997 to 1-10-1997 and that it presumed that he could not pursue his normal works at least for six months. In my judgment, these findings of the Tribunal cannot be upset when no disability certificate could be produced by the appellant to demonstrate that the appellant sustained permanent or partial disablement due to the vehicular accident in question. The burden of proving that the claimant sustains permanent disablement always lies on him. In this view of the matter, the Tribunal correctly declined to hold that the appellant sustained permanent disablement.

¶40

The result of the foregoing discussion is that there is no merit in this appeal, which is hereby dismissed. The parties are, however, directed to bear their own costs. Transmit the LC record forthwith.

¶41

CHIEF JUSTICE

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MAC APP NO.137/2012 Page 7 of 7

Netai Sarkar v. Mrinal Chakraborty and Anr.

Case brief

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Netai Sarkar v. Mrinal Chakraborty and Anr.

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