Allowed

Putul Rani Debnath and Ors. v. Sankar Lal Chowdhury and Anr.

Tripura HC25 Jul 2017MAC App./72/2015

Case brief

AI extract

What is this about?

The High Court allowed the appeal against the Motor Accident Claims Tribunal's rejection of the claim. While noting the claimants mishandled evidence, the Court inferred the death resulted from the accident based on the final police report due to the claimant's criminal acquittal and the probability of standard. The Court awarded Rs. 2,33,000 as compensation.

What did the court decide?

Awarded compensation of Rs. 2,33,000 with interest at 6% payable within two months.

Putul Rani Debnath and Ors. Vs Sankar Lal Chowdhury… — Motor Accident Claims | Tripura HC (2017)

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THE HIGH COURT OF TRIPURA AGARTALA

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MAC App. 72 of 2015

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Smt. Putul Rani Debnath, W/o Lt. Nitya Gopal Debnath

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Sri Uttam Kumar Debnath, S/o Lt. Nitya Gopal Debnath

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Sri Goutam Debnath, S/o Lt. Nitya Gopal Debnath

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Smt. Sadhana Debnath, D/o Lt. Nitya Gopal Debnath

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Smt. Mira Debnath, D/o Lt. Nitya Gopal Debnath

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All are residents of village & P.O Tarapur, PS Sidhai, District- West Tripura.

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………… Claimant-Appellants

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Vs –

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Sri Sankar Lal Chowdhury, S/o Nani Gopal Chowdhury, Resident of vill-Gangagatipur, P.O. Mohanpur, P.S. Sidhai, District-West Tripura. (Owner of Motor Bike bearing no. TR-01-S-4710)

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The Oriental Insurance Co. Ltd. Divisional Office, Agartala Central Road, Kaman Chowmohani, District-West Tripura.

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……..Opposite Party-Respondents

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BEFORE

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THE HON’BLE MR. JUSTICE S. TALAPATRA

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For the appellant : Mr. DR Choudhury, Advocate For the respondent-1 : Mr. HK Bhowmik, Advocate For the respondent-2 : Mr. Biswanath Majumdar, Advocate Date of hearing and delivery of order : 25.07.2017 Whether fit for reporting : No.

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MAC App. 72 of 2015

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Page 1 of 6

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JUDGMENT AND ORDER (ORAL)

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Heard Mr. DR Choudhury, learned counsel appearing for the appellant as well as Mr. HK Bhowmik, learned counsel appearing for the respondent No.1 and Mr. Biswanath Majumdar, learned counsel appearing for the respondent No.2, Oriental Insurance Company Ltd.

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2. By means of this appeal, the claimant-appellants have challenged the judgment and order dated 14.08.2015 delivered in TS(MAC)430 of 2014 by the Motor Accident Claims Tribunal, West Tripura, Agartala. By the said judgment and order, the claim of the claimantappellants filed under Section 166 of the MV Act, 1988 has been rejected on observing that the claimant-appellants failed to establish that the victim, namely, Nitya Gopal Debnath died succumbing to the injuries that he received in a road traffic accident.

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3. Mr. Choudhury, learned counsel appearing for the appellant has submitted that the finding is untenable inasmuch as while referring the injured victim to SSKM Hospital, Kolkata the Standing Medical Board, AGMC & GBP Hospital has clearly recorded that the injured was suffering from “head injury” from RTA (Road Traffic Accident). The injured was referred to the SSKM Kolkata for better management of his injuries. It is also not disputed that the victim was admitted in the hospitals at Kolkata namely, R-Fleming Hospital and Zodiac Medicare & Hospital Pvt. Ltd. Mr. Choudhury has further referred to the discharge summary dated 27.09.2013 issued by the Medical Officer, AGMC and GBP Hospital, Agartala where the nature of disease has been recorded as head injury from RTA.

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4. Mr. Choudhury has submitted that on the basis of the first information report lodged by the son of the deceased namely, Gautam

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MAC App. 72 of 2015

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Page 2 of 6

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Debnath on 15.10.2013, Sidhai P.S. Case NO. 75/2013 under Section 379/304(A) IPC was registered. The police has filed the final report on prima facie satisfaction that the said accident occurred for the rash and negligent driving of the respondent No.1.

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5. Mr. Choudhury, learned counsel has further submitted that if the final police report (Exhibit 1 series) and the referral certificate along with discharge certificate are read together it would appear that the said death caused from the road traffic accident for rash and negligent driving of the motor bike bearing registration No. TR-01-S-4710, of the respondent No.1. As such, Mr. Choudhury, learned counsel has strenuously submitted that the finding returned by the Tribunal be interfered with and compensation be granted to the appellant.

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6. From the other side, Mr. HK Bhowmik, learned counsel for the respondent No.1 has submitted that on the day of accident i.e. 26.09.2013 the said motor bike was under valid insurance policy bearing No.322797/31/2013/47. That apart, Mr. Bhowmik has submitted that there is no evidence whatsoever that the death of the said victim had occurred from the injuries received in the said accident though Mr. Bhowmik has categorically stated that the respondent No.2 does not admit the involvement of the said vehicle in the accident. He has further submitted that the suspicion has thickly gathered as without any postmortem, the dead body of the victim was cremated and after cremation only the first information report was lodged in the Sidhai Police Station. Mr. Bhowmik has further submitted that the Tribunal has rightly rejected the claim and it is not a claim where this Court should interfere with the findings as returned by the Tribunal.

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MAC App. 72 of 2015

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Page 3 of 6

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7. Mr. Biswanath Majumdar, learned counsel for the respondent No.2 did not dispute the fact that the said bike of the respondent No.1 was under a valid insurance policy of their company but Mr. Majumdar has submitted that there is no proof of death from the road traffic accident and as such for the death of the victim no compensation can be granted.

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8. Having appreciated the submission and the records placed by the appellants in the evidence, this Court is of the view that while the Tribunal was inquiring the claim, the claimants have badly mishandled the case. They did not take any initiative to prove that the death occurred from the road traffic accident. Even they did not formally introduce the final police report in the evidence. However, since the final police report was admitted in the evidence without any objection, this Court would not now entertain the question as to the admission of the said final police report. The final police report, to be very candid, is not the document from which the cause of death can be gathered. There is no medical report whatsoever. The cause of death cannot be presumed unless there is the forensic opinion in this regard. Someone might have received serious injuries. The injured was treated and returned his home. The injured might have died for any other reason. In this case, this is a probable case as the victim was at the time of accident 68 years of age. Therefore, this Court is constrained to observe that the cause of death has not been ascertained in such manner on which the Tribunal could have placed reliance.

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9. However, it cannot be denied that the victim was severely injured from a road traffic accident and he received serious injury. The said head injury was of such nature that the treatment could not be managed at the GBP Hospital, Agartala and the injured had to be referred to the SSKM

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MAC App. 72 of 2015

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Page 4 of 6

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Hospital, Kolkata for his treatment. The claimant-appellants have produced the medical records including the discharge certificate from the GBP Hospital and the referral note as issued by the Standing Medical Board. As such, there cannot be any difficulty in accepting the fact of injury from the road traffic accident and on the basis of the police report, this Court does not find any legal impediment to draw the inference that the vehicle of the respondent No.1 was involved in the said accident.

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10. Mr. Bhowmik has submitted that the respondent No.1 has been acquitted from the accusation drawn under Section 279/304A IPC by the judgment and order dated 10.02.2016 delivered by the Judicial Magistrate First Class, Court No.3, Agartala, West Tripura in PRC 1123/2013. It is an acknowledged state that the standard of proof in a criminal case being beyond reasonable doubt may not in all the times exclude the preponderance of probability. In view of this, this Court would infer that the injury that has been received by the victim was from the accident involving the vehicle of the respondent No.1. This Court would further infer that at the time of accident the victim was of 68 years of age, as recorded in the medical records.

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11. According to the appellant No.1, PW1, the victim had a business but even PW1 could not state what kind of business the victim had in her deposition made before the Tribunal. It is hardly believable that the wife did not know what kind of business her husband was carrying on. Be that as it may, the income has to be now calculated notionally in terms of the second schedule, appended to the Motor Vehicles Act, 1988. Thus, the income of the victim is assessed at Rs.15,000/- for purpose of deriving the compensation for damage as indicated above.

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MAC App. 72 of 2015

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Page 5 of 6

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12. In this case, the income will have no relation with damage from death. However, doing a guess work based on the experience, it can be held that for such injury received at such advanced age someone may lose the capacity to earn. Having recorded likewise, the loss of income would be Rs.15,000 X 5 = Rs.75,000/-. From the said Rs.75,000, 1/4^th would be deducted. Thus, the loss of income would come to Rs.58,857 [multiplier of 5 has been applied considering the age of the victim]. With the said amount, for meeting the medical expenses, Rs.1,20,000/- in terms of the package policy for which the necessary documents are available in the records, Rs.14,000/for air tickets and Rs.10,000/- for miscellaneous expenses. Thus, the total compensation would be Rs.1,82,870/-. With that a further sum of Rs.50,000/be added for pain and sufferings. Now the total compensation would be Rs.2,32,870/-, rounded off to Rs.2,33,000/-. The said compensation shall carry interest @ 6% from 20.11.2013, the day of filing the claim petition.

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13. The respondent No.2 shall pay the said amount within two months from today in the Tribunal below. After such deposit, the claimantappellants would be entitled to draw the said amount in equal shares but if it is found by the Tribunal that any one of the appellants is below the age of 18 years his/her share shall be maintained in the Term Deposit in a Nationalized Bank according to the choice of the Tribunal till the said claimant-appellant attains the age of majority.

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14. Having observed thus, this appeal stands allowed to the extent as indicated above. There shall be no order as to costs.

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15. A copy of this order be furnished to the learned counsel for the parties.

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JUDGE

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MAC App. 72 of 2015

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Page 6 of 6

Putul Rani Debnath and Ors. v. Sankar Lal Chowdhury and Anr.

Case brief

What is this about?

What did the court decide?

Putul Rani Debnath and Ors. v. Sankar Lal Chowdhury and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

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