Dismissed

The Oriental Ins.co.ltd v. Smt. Rinku Datta and 3 Ors.

Tripura HC28 Jul 2017MAC App./164/2013

Case brief

AI extract

What is this about?

Dividing court dismissed this motor accident appeal challenging compensation awarded for the deceased's death. It held the Tribunal correctly ignored compassionate appointment salary as no deduction for pecuniary advantage is permitted, rejecting the appellant's claim for quashing this finding.

What did the court decide?

Compensation with accrued interest to be released to claimant-respondents as ordered by the Tribunal.

The Oriental Ins.co.ltd Vs Smt. Rinku Datta and 3… — Writ and Judicial Review | Tripura HC (2017)

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THE HIGH COURT OF TRIPURA

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A G A R T A L A

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MAC APP. NO. 164/2013

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The Oriental Insurance Company Ltd., Represented by its Divisional Manager, Agartala Divisional Office, Central Road, P.S-East Agartala, District-West Tripura. (Insurer of vehicle bearing No.TR-01-D-2071 (Tata Magic)

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…Appellant.

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-Versus-

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Smti Rinku Datta, W/o. Late Gopal Datta.

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Smti. Jewel Datta (aged about 13 years) D/o. Late Gopal Datta.

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Master Prasenjit Datta (aged about 11 years) S/o. Late Gopal Datta. All are resident of village-Kalinagar (Khayerpur), P.O- Old Agartala, P.S-Ranir Bazar, District-West Tripura. (Being minor the claimant respondent Nos.2 and 3 are represented by their natural guardian mother i.e. claimantrespondent No.1)

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… Claimant-Respondents.

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Sri Ashish Shil, S/o. Manik Shil, Resident of village-Champaknagar, P.O-Jirania, P.S-Jirania, District-West Tripura. (Owner of vehicle bearing No. TR-01-D2071, Tata Magic)

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…. Owner-Respondent.

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BEFORE

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THE HON’BLE THE CHIEF JUSTICE MR. T. VAIPHEI

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Counsel for the appellant --- Mr. P. Gautam, Advocate.

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Counsel for the respondents --- Mr. K. K. Pal, Advocate.

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Date of hearing & judgment --- 28-07-2017

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JUDGMENT & ORDER (ORAL)

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Heard Mr. P. Gautam, the learned counsel for the insurer-appellant.

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Also heard Mr. K.K. Pal, the learned counsel for the claimant-respondents.

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MAC App. No. 164/2013 Page 1 of 6

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Aggrieved by the judgment dated 30.01.2013 passed by the Member, Motor Accident Claims Tribunal, West Tripura, Agartala in TS(MAC) No.83 of 2011 awarding compensation of ₹15,10,554/- with interest @ 9% per annum from the date of claim petition to the claimantrespondents for the death of Gopal Datta in the vehicular accident taking place on 24.02.2011, this appeal has been preferred by the insurerappellant for reduction of the compensation amount.

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The case of the claimant-respondents is that on 24.02.2011 at about 8/8.30 A.M, the deceased Gopal Datta was returning home by riding his bicycle from Khayerpur Bazar keeping extreme left side of the Assam Agartala Road and when he reached Khayerpur old market, one Tata Magic bearing registration No.TR-01-D-2071 coming from Agartala direction in a high speed violently hit him from behind. As a result of the accident, he died on the same day. A case of rash and negligent driving by the driver of the offending vehicle was registered by the police being Ranir Bazar P.S Case No.07 of 2011 U/s 279/338/304A IPC. The age of the deceased at the time of the accident 48 years, and he was serving as a Group-D employee under the Education Department, Government of Tripura earning a monthly salary of ₹11,121/- at the time of his death. The claimant-respondents therefore, claiming a compensation of ₹ 39,00,000/-.

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The claim petition was contested by the owner of the vehicle as well as the appellant-insurer by filing their respective written statements denied any liability to pay compensation to the claimant-respondents. On the pleadings of the parties the Tribunal framed the following issues:

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“(i) Whether vehicle No. TR-01-D-2071 (Tata Magic) met an accident on 24.02.2011 at about 8.30 a.m. at ild Khayerpur market on Assam Agartala Road under Ranir Bazar Police Station due to rash and negligent driving of the vehicle;

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(ii) Whether deceased Gopal Datta died as a result of that accident;

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MAC App. No. 164/2013 Page 2 of 6

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(iii) Whether the Petitioners are entitled to get any compensation and if so, what shall be the reasonable amount;

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(iv) Who shall make the payment of compensation, if any.”

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In the course of trial, the claimant-respondents No.1 examined herself as witness and was cross-examined by the insurer-appellant and the owner of the vehicle. No other evidence was adduced by the OP No.1 but he submitted some zerox copies of documents in respect of the vehicle. At the conclusion of the trial, the impugned award was passed by the Tribunal.

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Mr. P. Gautam, the learned counsel for the insurer-appellant contends that when the claimant –respondents No.1, wife of the deceased, was already given compassionate appointment by the State Government, the Tribunal was not correct in not taking into consideration this appointment in assessment the compensation payable to the claimantrespondents. Drawing my attention to the decision of the Apex Court in

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Bhakra Beas Management Board Vrs. Smt. Kanta Aggarwal & Ors.:

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2008 AIR SCW 5256, he submits that in accident compensation cases, losses and gains arising to claimant out of the accidental death of the victim ought to be balanced and that non-consideration of the benefit of compassionate appointment given to the claimant-respondent in assessing compensation is highly improper and contrary to the law laid down by the

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Apex Court in Smt. Kanta Aggarwal case ( supra ). The learned counsel further submits that no other evidence to prove the age of the deceased except the age mentioned in the voter list could be produced by the claimant-respondents, which cannot be the best evidence available; as a Government servant, his date of birth as entered in his service book could have been produced or summoned. He, therefore, contends that the determination of the age of the deceased at 48 years at the time of the accident suffers from non-application of mind and cannot be sustained in law. He, therefore, strongly urges this Court to make necessary reduction

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MAC App. No. 164/2013 Page 3 of 6

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of the award keeping in mind the deficiencies in the case highlighted above.

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On the other hand, the learned counsel for the claimantrespondents, drawing my attention to the decision of the Apex Court in Vimal Kanwar and Others Vrs. Kishore Dan and Others : 2013 ACJ 1441 submits that the salary earned by claimant-respondent No.1 by virtue of her compassionate appointment cannot be termed as pecuniary advantage, which could never be taken into account for determining the amount of compensation. He, therefore, submits that the Tribunal rightly ignored this factor while calculating the compensation. He further submits that the age of the deceased at the time of the accident, which was projected in the claim petition as well as in the voters list, has not been denied or disputed by the insurer-appellant in their pleadings or in their cross-examination and, as such, no infirmity was committed by the Tribunal in holding the age of the deceased as 48 years at the time of the accident. It is, therefore, submitted that the impugned judgment does not suffer from any illegality warranting the interference of this Court.

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In Vimal Kanwar (supra) vide para-20, the Apex Court considered the question as to “Whether the salary receivable by the claimant on compassionate appointment comes within the periphery of the Motor Vehicles Act to be termed as ‘pecuniary advantage’ liable for deduction?” and held as follows:

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“20. The second issue is “whether the salary receivable by the claimant on compassionate appointment comes within the periphery of the Motor Vehicles Act to be termed as “Pecuniary Advantage” liable for deduction?”

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“Compassionate appointment” can be one of the conditions of service of an employee, if a scheme to that effect is framed by the employer. In case, the employee dies in harness i.e. while in service leaving behind the dependents, one of the dependents may request for compassionate appointment to maintain the family of the deceased employee dies in

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MAC App. No. 164/2013 Page 4 of 6

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harness. This cannot be stated to be an advantage receivable by the heirs on account of one’s death and have no correlation with the amount receivable under a statute occasioned on account of accidental death. Compassionate appointment may have nexus with the death of an employee while in service but it is not necessary that it should have a correlation with the accidental death. An employee dies in harness even in normal course, due to illness and to maintain the family of the deceased one of the dependents may be entitled for compassionate appointment but that cannot be termed as “Pecuniary Advantage” that comes under the periphery of Motor Vehicles Act and any amount received on such appointment is not liable for deduction for determination of compensation under the Motor Vehicles Act.”

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I have carefully read and re-read the judgment of the Apex Court in Bhakra Beas Management Board (supra), the case cited by the learned counsel for the insurer-appellant, and the Apex Court therein held that in determining the quantum of compensation payable to the claimants, losses and gains arising to the claimant out of the accidental death of the victim ought to be balanced and that it is improper not to consider the benefit of compassionate appointment given to the wife of the victim in assessing the amount of compensation. I have also carefully gone through the judgment cited by the learned counsel for the rival party. However, the decision of the Apex Court in Vimal Kanwar and Others (supra) being the latest in point of time rendered by the co-ordinate Bench of the Apex Court, with due respect, I am of the view that I should be bound by the latest law. Resultantly, the decision rendered in Vimal Kanwar and

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Others (supra) will hold the field and apply to the case at hand. Therefore, the Tribunal has rightly ignored the plea of balancing losses and gain arising to the claimant out of the accidental death of the victim. In so far as determination of the age of the deceased is concerned, in the absence of dispute or denial to the averments made by the claimant-

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MAC App. No. 164/2013 Page 5 of 6

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respondents that the deceased was 48 years old at the time of the accident, the Tribunal has correctly held that the age of the deceased was 48 years. On reading and re-reading the findings of the Tribunal in the impugned judgment, I am quite satisfied that the Tribunal did not commit any infirmity calling for modification of the impugned judgment.

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For the reasons stated in the forgoing, this appeal has no merit and same is dismissed. As the insurer-appellant has already deposited the entire awarded amount, the compensation with accrued interest will be released to the claimant-respondents in accordance with the decision of the Tribunal. Transmit the LC record forthwith.

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CHIEF JUSTICE

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d.dey

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MAC App. No. 164/2013 Page 6 of 6

The Oriental Ins.co.ltd v. Smt. Rinku Datta and 3 Ors.

Case brief

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The Oriental Ins.co.ltd v. Smt. Rinku Datta and 3 Ors.

Case brief

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