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Judgment
Heard Mr. S Kar Bhowmik, learned counsel appearing for the appellant, National Insurance Co. Ltd. as well as Mr. R Dutta, learned counsel appearing for the respondents No.1,2,3&4, hereinafter referred to as the claimants, and Mr. D Bhattacharjee, learned counsel appearing for the respondents No.5&6, respectively, the owner and the driver of the vehicle bearing No. TR01 A 3815 (TATA Spacio Jeep).
This is an appeal under Section 173(1) of the Motor Vehicles Act, 1988 from the judgment and award dated 13.05.2014 delivered in TS(MAC)28/2018 by the Motor Accident Claims Tribunal, South Tripura, Udaipur, as it then was.
The appellant has raised fundamentally two grounds of objection no. (i) the death, occurred on 22.09.2011, has not been established to have any relation with the accident that had taken place on 05.10.2010; and (2) the vehicle was not in a fit condition to ply on the road and as such there was breach of Section 149(2) of the Motor Vehicles Act and the insurer, hence, the appellant does not have any liability of payment of the award.
Mr. S Kar Bhowmik, learned counsel appearing for the appellant has submitted that on 05.10.2010 at about 7.30 a.m. one Parimal Debnath, while proceeding towards his house on foot, as stated in the claim petition, from Manpathar market through the Udaipur-Sabroom road and when he reached nearly the office of a political party at Manpathar, at that time the vehicle bearing No. TR01A 3815 (Jeep) coming from the Udaipur end dashed him from the backside and as a result the said person sustained grievous injuries over his left hand, leg, left ankle and foot. He was referred to the TSD Hospital at Udaipur and later on to the GBP Hospital, Agartala. He was under treatment for a long period but was not cured.
Mr. Kar Bhowmik, learned counsel has submitted that the petitioner was once discharged from the Hospital and after some time he was again admitted in the hospital for further treatment. According to the claimant, the death occurred due to the accidental injury which the appellant has seriously questioned.
After recording the evidence, the Tribunal has awarded a sum of Rs.28,93,800/- and it has been directed to be paid with interest @ 6% p.a. w.e.f. 20.11.12 till the payment is made, if payment is made within two months. If the compensation is not paid within the said stipulated period, the amount shall carry interest @ 9% p.a. till the payment is made. The other directions have not been, however, questioned by the appellant.
At this juncture, Mr. Kar Bhowmik has added the ancillary ground of objection that under Section 171 of the Motor Vehicles Act the Tribunal is not authorized to give penal interest retrospectively and as such this direction cannot be sustained in law.
Mr. Kar Bhowmik, learned counsel has taken this Court to the medical records such as the post mortem examination report to show that there is no mention that the injury was received by the deceased in the road traffic accident. That apart, he has shown this Court that from the discharge certificate it appears that the injury was in the right lower leg and ankle (TR). The discharge certificate dated 09.1.2011 (Exbt.2) series has been referred for this purpose. Even from the discharge certificate dated 02.02.2011, he has shown that the injury was at the right lower leg, elbow and head, but in the post mortem report it has been shown that the injury was in the left leg. Mr. Kar Bhomwik, learned counsel has thus strenuously argued that the injury in the right leg even has not been claimed by the claimants to have received from the road traffic accident. As such, nexus of the death and the injury for which the victim died has not been established, according to Mr. Kar Bhowmik, learned counsel.
Mr. Kar Bhowmik, learned counsel has drawn the notice of this Court to the statement of Dr. Gobinda Reang (PW2) who conducted the post mortem of Parimal Debnath (the deceased). PW2 has stated that there was old fracture in the leg. The cause of death is cardiac arrest by Fat embolism of cardiac vessel from old fracture of left leg, lower part, near left heel joint. The fracture in the right leg might have been caused by accident or from a fall on hard substance. By aid of that witness the post mortem report has been brought in the evidence. Thus it has been contended that even the post mortem doctor‟s statements did not support the claim of accidental death.
Mr. Kar Bhowmik, learned counsel showing the document submitted by the respondent No.5, has contended that the owner of the vehicle did not clear the tax and it is evident from the tax token. It had no fitness and as such, the insurance company is entitled to the benefit of Section 149(2) of the Motor Vehicles Act for breach of essential conditions of the contract of insurance. On query of this court, however, he has fairly submitted that in the written objection the said plea was not projected by the appellant.
Finally, Mr. Kar Bhowmik, learned counsel has submitted that this court has also decided that under Section 171 of the Motor Vehicles Act, the Tribunal does not have the authority to impose the penal interest with retrospective effect. He has referred to a decision of this Court in Mridul Kanti Paul Vs. Biswajit Saha and Ors [judgment and order dated 15.11.2016 delivered in MAC App No. 61/2014]. Mr. Kar Bhowmik, has as well referred some other decisions of this Court on essential requirement of establishing the nexus of death and accident viz., Purnima Majumdar (Saha) Vs. Chandan Kr. Roy & Ors. [the judgment dated 02.12.2015 delivered in MAC App No. 69/2016], and Shyamali Nag (Majumdar) & Smt. Shaine Mazumder vs. Nirmal Chandra Sarkar and United India Insurance Co. Ltd. [the judgment and order dated 27.01.2014 delivered in MAC App No. 68/2005]. Even a decision of Chhattisgarh High Court in Manoj Kumar Vs. Manish Kr. Rajput [the judgment and Order dated 16.08.2005 delivered in case No. 607/2004] has been pressed on this point.
This Court has taken note of those decisions. These are, as stated, relating to that unless the cause of death is related to the accident, none can claim compensation under the provisions of Motor Vehicles Act. There cannot be any controversy on that position of law and as such, the elaborate reference to the observations made in the judgments is avoided.
In response, Mr. R Dutta, learned counsel appearing for the respondents [the claimants] has submitted that there is no controversy as regards the accident and that in the said accident the deceased suffered fatal injuries. While elaborating, he has submitted that from the injury report, as produced in the criminal case which emerged from the said accident Santirbazar P.S. Case No. 73/2010, it will be apparent that the doctor has clearly stated that trauma, left leg following alleged RTA at 05.10.2010‟. This report is available with the police report (Exbt. 2 series).
According to Mr. Dutta, learned counsel the police had filed the charge sheet under Section 279/338 of the IPC. In respect of the said injury, in the police report it has been stated that as the result of the accidental left leg and the left ankle of the victim Parimal Debnath got fracture injures and he was admitted in the GBP Hospital, Agartala on 05.10.2010 and he was there in the first phase, till 19.11.2010. Those documents have not been questioned by the appellant or the owner of the vehicle.
Mr. D Bhattacharjee, learned counsel has submitted that the vehicle at the relevant point of time was covered by a policy of the appellant and as such the liability cannot be shifted on the owner of the vehicle, i.e. the respondent No.5.
Having appreciated the submission made by the learned counsel for the parties, this Court is of the view that from the medical reports the confusion that has been created might also have been created for the writing pattern of the letter R/L. It can also be read as L‟, even though, the contrary has been emphasized too much.
That apart, the post mortem report and the injury report [part of the records] clearly show that the deceased suffered the injury in the left leg and on the left ankle. The post mortem report clearly observes that Parimal Debnath died in cardiac arrest by Fat embolism of cardiac vessel from old fracture of left leg lower part nearby left heel joint. It has been stated to be the "most probably", cause of death. Even the doctor did not rule out that the injury has been received from the accident.
Thus, this Court does not find any substance in the first objection raised by the appellant. The other objection regarding the fitness, from the records, it surfaces that the fitness certificate was there and the subsequent fitness certificate, which was produced, was in force till 22.01.2015, whereas the fitness certificate was issued on 15.01.2004. It does not show that the preceeding period was not under coverage by the fitness certificate. At least, no such record has been produced before the Tribunal. That apart, no objection in this regard had been taken by the appellant in their written objection. The same is applicable regarding the tax token. Whether the tax was paid or not, it can only be determined on the basis of the records. No such records have been produced. Thus, this objection cannot stand on its leg and the same is accordingly discarded.
But this Court finds sufficient force in the submission of Mr. Kar Bhowmik, learned counsel for the appellant that by imposing the penal interest retrospectively the Tribunal has exceeded its jurisdiction as provided by Section 171 of the Motor Vehicles Act. As such, the penal interest @ 9% stands interfered with. The interest shall be paid @ 6% p.a. from the date of filing of the application, i.e. 20.11.2012 till the payment is made. Regarding the share and management of the award, what has been made by the Tribunal, stands affirmed.
The appellant is directed to deposit the entire amount to the Tribunal within a period of two months from the day of receipt of a copy of this judgment. If any amount has been paid by this time, that shall stand deducted.
In terms of the above, this appeal stands partly allowed to the extent as indicated above. There shall be no order as to costs.
Copy of this order be furnished to the learned counsel for the parties.