The duty of the police is to undertake an investigation to verify the truth of a complaint: High Court Of Tripura

Page HIGH COURT OF TRIPURA MAC App. No. 26 2021 The Oriental Insurance Company Ltd. Represented by the Divisional Manager Agartala Division Office H.G.B. Road Near Sarkar Nursing Home) Agartala West Tripura. Versus Smt. Sudhipa Das @ Sudipa Das Daughter of Sri Niranjan Das of village Jagaharimura Near Kalibari P.S East Agartala District : West Tripura. Sri Suman Das Son of Sri Niranjan Das of village Jagaharimura Near Kalibari P.S East Agartala District : West Tripura. Owner of the vehicle No. TR 010J 9364 Bajaj Pulser) … Appellant. … Claimant Respondent. … Respondent. THE HON’BLE MR. JUSTICE S. G. CHATTOPADHYAY Mr. Biswanath Majumder Adv. For Appellant(s) For Respondent(s) Date of hearing Date of Judgment & Order Whether fit for reporting Mr. Alik Das Adv. 31st August 2021. 29th September 2021. NO. JUDGMENT AND ORDER By means of filing this appeal under Section 173(1) of the Motor Vehicles Act 1988 the appellant Insurance Company has challenged the award dated 27.01.2021 passed by the Motor Accident Claims Tribunal West Tripura Agartala awarding compensation of a sum of Rs. 10 00 000 with 9% MAC App. No.26 2021. annual interest to Smti Sudipa Das for the Page injury and loss suffered by her in a road traffic accident which occurred on 19.08.2014 at Agartala. Said compensation was awarded by the Tribunal under the following heads: Total : Rs.10 00 000 Rs. 5 00 000 For cost of treatment Rs. 1 00 000 For transportation Charges For pain and suffering Rs. 2 00 000 For mental shock and agony Rs. 2 00 000 Tribunal also awarded 9% annual interest on the said amount from the date of presentation of claim petition before the Tribunal till disbursement of compensation. the following grounds: Appeal has been filed by the insurance company mainly on Tribunal did not take care of the settled principles for determination of compensation payable respondent No.1. ii) Tribunal did not appreciate the evidence particularly cross examination of the claimant and thereby arrived at an erroneous finding with regard to the liability of the appellant iii) The Tribunal erroneously allowed the claim only on the insurance company. basis of a G.D Entry. MAC App. No.26 2021. Page iv) No FIR was lodged after the accident and no police investigation was done. Tribunal’s award is thus grossly erroneous and liable to be set aside. v) The Tribunal did not consider the fact that the claimant respondent was a pillion rider on the motor bike of his brother and the accident occurred due to rash and negligent driving of the said motor bike. It being a case of contributory negligence owner of the motor bike is liable to pay compensation. vi) Tribunal did not scrutinize the medical reports bills and prescriptions while granting an exorbitant amount of Rs.5 00 000 towards the cost of treatment of the claimant and the Tribunal did not also consider the fact that some of those bills related to treatment prior to the accident. Heard Mr. Biswanath Majumder learned advocate appearing for the appellant insurance company and also heard Mr. Alik Das learned advocate appearing for the claimant respondent. Counsel have made detailed submissions with regard to their respective claims. The bare facts which are essential to appreciate the challenge Claimant Ms. Sudipa Das was going to Tripura University at Surjya Mani Nagar from her home at Jagaharimura on 19 08 2014 morning on a Bajaj Pulser motorbike bearing registration No.TR 01 J 9364 driven by her brother. The bike was being driven by her brother rashly and negligently. As a result when a street dog appeared in front of are as under: MAC App. No.26 2021. the bike his brother could not control the speeding bike and as a result Page both of them slipped from the bike and the claimant received fatal head injuries whereas her brother was saved who received some minor injuries. They were rescued and brought to IGM Hospital at Agartala by the local people. From there the claimant was taken to AGMC and G.B.P Hospital. She was then brought to ILS Hospital on the same day. From ILS Hospital she was taken to a super speciality hospital in Kolkata where she received treatment as an indoor patient from 20.08.2014 to 13.09.2014. She had undergone a brain surgery in the said hospital at Kolkata. Two months after her discharge from the said hospital she again fell ill and got admitted in the hospital on 23.11.2014. She was discharged on 27.11.2014. As a result of the accident she developed speech disorder. She therefore filed a claim petition under Section 166 M.V Act at the Tribunal claiming compensation of a sum of Rs.79 40 000 . She impleaded her brother Suman Das owner of the offending motor bike as respondent No.1 and the insurance company as respondent No. 2. The appellant insurance company filed written statement of defence at the Tribunal wherein the insurance company pleaded that it would not be liable to pay any compensation to the claimant unless the original insurance policy of the offending vehicle and a valid driving licence of respondent No.1 were produced by the claimant. It was further pleaded by the appellant insurance company that the amount of compensation claimed by the claimant petitioner was exorbitant and baseless. MAC App. No.26 2021. Page The owner of the motor bikein his written statement of defence admitted the accident and claimed that his motor bike skidded on the road when he tried to save a dog which suddenly appeared in front of his bike near Sarkar Nursing Home at Agartala. As a result they slipped from the bike and his sister received fatal injuries in her head. He claimed that his vehicle was insured with the appellant insurance company and he had a valid driving licence and all other documents of his motor bike were also valid. He supported the claim of his sister. In the course of trial Tribunal framed the following issues: i) Whether the claimant received any injury from the road traffic accident which allegedly occurred on 19 08 2014 at about 9.30 am as a result of rash and negligent driving of motor bike bearing registration No. TR 01 J 9364 ii) Whether the claimant was entitled to any compensation for the injury suffered by her and if so what would be a fair amount of compensation iii) Whether the claimant was entitled to any other relief In support of her claim claimant respondent adduced her oral evidence as PW 1 and produced documentary evidence which were exhibited and marked as Exbts.1 10. The respondent owner also appeared as OPW 1 and produced the registration certificate of his motor bike its insurance policy his driving licence and tax token of his motor MAC App. No.26 2021. bike which were marked and exhibited as Exhibits A B C and D Page respectively. On appreciation of evidence Tribunal held that the accident occurred as a result of rash and negligent driving of the motor bike in which the claimant received fatal injuries. She received treatment in various hospitals within and outside the State and incurred huge medical expenses which was supported by proper bills and receipts. The Tribunal also held that she suffered from enormous pain and sufferings as a result of the accident and she also received serious mental shock and agony due to brain surgery for which Tribunal granted compensation to her. 10] In the course of his arguments Mr. Biswanath Majumder learned counsel of the appellant has mainly contended that the Tribunal should not have granted compensation to the claimant only on the basis of a G.D. Entry made at the police station. Counsel contends that no FIR was lodged and no investigation was done to ascertain as to whether the accident occurred as a result of negligent driving of the offending vehicle. Therefore Tribunal should not have passed an award of compensation in favour of the claimant respondent. Counsel for the appellant has relied on the decision dated 24.07.2018 of the Gauhati High Court in W.P(C) No.5328 of 2017 when the High Court while considering a similar issue examined various decisions of the Apex Court and directed the Director General of Police Assam to issue general instructions to all police stations in the State of Assam to register FIRs MAC App. No.26 2021. after making GD Entry on receipt of information relating to road accident Page and thereafter submit Accident Information Report to the jurisdictional Tribunal within 30(thirty) days of registration of FIR. With regard to the pending claim petition on the basis of a G.D entry the Gauhati High Court observed as under: “19. In so far the claim cases already pending before the Tribunals which have been registered on the basis of GD Entries Court is of the view that having regard to the beneficial nature of the legislation i.e. the Act it would be wholly inequitable to direct remand of those claim petitions to the concerned police stations. As discussed above under Sections 168 and 169 of the Act the Tribunal has got ample powers to verify the genuineness of the claims. That apart companies like the petitioner in the present case have also enough opportunities in such proceedings to point out before the Tribunals in case there is any collusion or in case any false claim is made. It is the duty which is vested in the insurance companies and it is expected that having regard to the beneficial objective of the statute insurance companies will discharge their duties in the true spirit of the Act so that genuine claim petitions are not frustrated and are disposed of at the earliest giving at least some solace to the victims of road accidents and family members of deceased.” 11] Mr. Biswanath Majumder learned counsel of the appellant further submitted that apart from the facts that the claim petition was erroneously entertained and an unreasonable amount of compensation was granted tribunal awarded an exorbitant rate of interest. Learned counsel under the premises aforesaid urges for setting aside the award of the Tribunal. 12] Mr. Alik Das learned counsel appearing for the claimant respondent opposes the contentions of the counsel of the appellant. Counsel submits that a motor accident claim case is in the nature of a civil suit and the standard of proof required in such case is the MAC App. No.26 2021. preponderance of probability. Counsel has relied on the decision of this Page High Court in Rampati Chakma Vrs. Sunil kumar Ram and Ors. reported in Counsel submits that in the given case also the accident was reported to police immediately after the occurrence and the said information was recorded in the general diary of the police station vide West Agartala P.S G.D Entry No.887 dated 8.2.2015 I have carefully perused the submissions of the counsel made at the Bar. Perused the award of the Tribunal and the oral and documentary evidence on the basis of which said award has been passed by the Tribunal. With regard to the submission of the counsel of the appellant that Tribunal earred in entertaining the claim simply on the basis of a G.D. Entry I find no merit in the said contention of the counsel of the appellant. It would appear from the factual narrative of the information furnished by the claimant at the police station that she gave full details of the occurrence. It would be apposite to reproduce the said information lodged by the claimant at the police station which is as under: The Officer in charge West Agartala P.S Agartala West Tripura. Sub : Prayer for enquiry regarding the Road Traffic Accident which took place on 19.8.2014 at about 09.00 a.m. in front of Sarkar Nursing Home on HGB Road arising out of use of motor cycle bearing Regn.No.TR01 J 9364(Bajaj Palsar). Sir With reference to the above I am to inform you that on 19.8.2014 in the morning I was on way to Battala by boarding in the motor cycle of my brother Sri Suman Das from our residence through the HGB Road at about 09.00 a.m. and reached in front of B. R. Sarkar Nursing Home at that time all on a sudden a street dog came in front of our bike. My brother tired to control the bike but due to speed he was not in a position to control the motor bike. Due to sudden pulling of break both of us fell down from the bike on the road. I received severe head injury and my brother received simple injury. I became senseless. The local people along with my brother shifted me to IGM Hospital and from there to GBP Hospital and admitted there as an indoor patient on the same day. MAC App. No.26 2021. Page 1 Then I was shifted to ILS Hospital. Thereafter considering the gravity of the injury I was shifted to Kolkata on 20.8.2014 and admitted in Medica Super Specialty Hospital till 13.9.2014. I came back to Agartala on 13.9.2014. I have again visited the Medica Super Specialty Hospital and admitted there as an indoor patient on and from 23.11.2014 to 27.11.2014.Till today my treatment is going on. investigation and oblige me thereby. Dated 08.02.2015. So I am requesting you kindly make necessary Yours faithfully D o Sri Niranjan Das Sd P.O. Agartala College Agartala West Tripura.” Jagaharimura 15] It was the duty of the police to undertake investigation to verify the truth of her complaint and submit an Accident Information Report at the Tribunal. She was not supposed to wait for an investigation report to lodge her claim at the Tribunal. Her claim cannot be defeated simply for the reason that there was no police investigation in the matter. It has been settled that once the functional fact namely the actual occurrence of the accident has been established role of the Tribunal is to calculate compensation if the accident had taken place due to negligence of the driver of the vehicle. In the present case driver of the motor bike was the brother of the claimant. In her examination in chief the claimant in paragraph 3 of her statement asserted as under: That the accident took place due to rash and negligent driving by rider of the motor bike bearing registration No. TR 01 J 9364 She reiterated the fact in her cross examination by the Page 1 appellant insurance company wherein she stated as under: “The accident occurred due to rash and negligent driving of rider of the motor bike.” 17] In the case of “Sunita and Others Vrs. Rajasthan State Road Transport Corporation and others: reported in13 SCC 486 the Apex Court held as under: “15. In a situation of this nature the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose the High Court should have taken into consideration the respective stories set forth by both the parties.”The Court restated the legal position that the claimants were merely to establish their case on the touchstone of preponderance of probability and standard of proof beyond reasonable doubt cannot be applied by the Tribunal while dealing with the motor accident cases. Even in that case the view taken by the High Court to reverse similar findings recorded by the Tribunal was set aside.” 18] The judgment of the Gauhati High Court which has been relied upon by the counsel of the appellant does not bar a claim based on G.D. Entry. The Court held that Tribunal has got ample power to verify the genuineness of the claim pending before it and the insurance companies have also enough opportunities in such proceedings to point out the instance of collusion if any before the Tribunal. Genuine claims cannot be defeated only on the ground that it was entertained on the basis of G.D. Entry. In the given case Tribunal verified the pleadings of MAC App. No.26 2021. the parties and relying on the evidence adduced by them and by applying Page 1 the standard of preponderance of probability came to a conclusion that the claimant suffered from serious injuries from the said accident and awarded compensation to her. Therefore in view of the materials available on record and the judgment cited to I am of the view that the claimant cannot be denied compensation simply because her claim petition was entertained by the Tribunal on the basis of GD entry and there was no police investigation in the case. 19] With regard to quantum of compensation it is apparent that Tribunal awarded an exorbitant amount of Rs.2 00 000 for pain and sufferings and a further sum of Rs.2 00 000 for shock and agony which according to me should be reduced to Rs.2 00 000 in all for pain and sufferings. Separate compensation under the head of shock and agony would not be appropriate. Claimant had undergone brain surgery in hospital outside the State. Tribunal assessed treatment expenses and transportation charges on the basis of bills submitted by the claimant. Therefore compensation awarded under the head of medical expenses and transportation charges is not interfered with. Award of 9% annual interest is exorbitant which should be reduced to 7.5%. In view of the above the compensation payable to the victim is re assessed as under: Rs. 5 00 000 1. For medical expenses 2. For transportation Charges Rs. 1 00 000 3. For pain and suffering Rs. 2 00 000 Total : Rs. 8 00 000 MAC App. No.26 2021. Page 1 20] The amount of interest at the rate of 7.5% per annum shall be paid by the appellant on the total amount of compensation from the date of presentation of the claim at the tribunal till disbursement. The appellant insurance company shall deposit the money with the Registry of this High Court within a period of six weeks from today and in turn the same shall be disbursed to the claimant by transferring the whole amount to her individual bank account. Amount already paid if any shall be 21] In terms of the above the appeal stands disposed of. Pending application(s) if any shall also stand disposed of. Send down the L.C record. Dipankar MAC App. No.26 2021. 

Summary: The role of the Tribunal is to calculate compensation, if the accident had taken place due to negligence of the driver of the vehicle. Such an opinion was held by The Hon’ble High Court Of Tripura before The Hon’ble Mr. Justice S. G. Chattopadhyay in the matter of The Oriental Insurance Company Ltd vs. Smt. Sudhipa Das @ Sudipa Das [MAC App. No. 26/2021]. The facts of the case were associated with the appellant Insurance Company who had challenged an order under Section 173(1) of the Motor Vehicles Act, 1988, passed by the Motor Accident Claims Tribunal (Court No.2), West Tripura, Agartala, dated 27.01.2021. In the said order the Tribunal awarded a compensation of a sum of Rs. 10,00,000/- (Rupees ten lakhs) with 9% annual interest to respondent no.1 Smti Sudipa Das for the injury and loss suffered by her in a road accident that occurred on 19.08.2014 at Agartala.  It was submitted that respondent no.1 Sudipa Das was riding with her brother Suman Das on his motorbike to go to Tripura University from her residence at  Jagaharimura on 19/08/2014, morning. An accident took place due to the sudden appearance of a dog in front of the bike. Due to the negligent and rash driving of the brother, he could not control the bike and slipped. The respondent sister suffered fatal injuries while the brother had minor injuries. The sister was taken to various hospitals for her treatment and finally to a super specialty hospital in Kolkata. Due to the accident, she had to undergo brain surgery and later developed a speech disorder. Thereby, a petition was filed by her under Section 166 M.V Act at the Tribunal claiming compensation of a sum of Rs.79,40,000/-. Another written statement of defense at the Tribunal was filed by the appellant insurance company stating that it would not pay any compensation to the claimant unless the original insurance policy of the offending vehicle and a valid driving license of respondent No.1 was produced.  Learned advocate Mr. Biswanath Majumder, representing the appellant contended that the compensation to the claimant only on the basis of a G.D. Entry made at the police station should not have been granted by the Tribunal. Furthermore, the appellant’s counsel stated that the claimed petition was invalidly entertained and an unreasonable amount of compensation was granted with an excess interest. The learned counsel, representing the claimant stated that a GD was filed immediately after the occurrence and the said information was recorded in the general diary of the police station.  The Hon’ble Court held “… It was the duty of the police to undertake investigation to verify the truth of her complaint and submit an Accident Information Report (AIR) at the Tribunal. She was not supposed to wait for an investigation report to lodge her claim at the Tribunal. Her claim cannot be defeated simply for the reason that there was no police investigation in the matter… With regard to quantum of compensation, it is apparent that Tribunal awarded an exorbitant amount of Rs.2,00,000/- for pain and sufferings and a further sum of Rs.2,00,000/- for shock and agony which according to me should be reduced to Rs.2,00,000/- … Award of 9% annual interest is exorbitant which should be reduced to 7.5%.” The Hon’ble High Court Of Tripura ruled out “… The appellant insurance company shall deposit the money with the Registry of this High Court within a period of six weeks from today and in turn, the same shall be disbursed to the claimant by transferring the whole amount to her individual bank account. Amount already paid, if any, shall be adjusted… In terms of the above, the appeal stands disposed of.”