HIGH COURT OF TRIPURA A_G_A_R_T_A_L_A MAC. App. No.27 of 2023 The National Insurance Company Ltd. ….. Appellant -V E R S U S- Smti. Mana Kanya Debbarma @ Man Kanya Debbarma and 3 Others .....Respondents. B_E_F_O_R_E HON’BLE MR. JUSTICE T. AMARNATH GOUD For Appellant(s) : Mr. A. K. Deb, Advocate. For Respondent(s) : Mr. T. D. Majumder, Sr. Advocate. Mr. S. D. Chowdhury, Advocate. Whether fit for reporting : YES/NO Judgment and order dated 29th January, 2025 JUDGMENT & ORDER [ORAL] Heard Mr. A. K. Deb, learned counsel appearing for the appellant also heard Mr. T. D. Majumder, learned senior counsel and Mr. S. D. Chowdhury, learned counsel appearing for the respondents. [2] This is an appeal filed under Section-173 of Motor Vehicles Act, against the award dated 25.11.2022 passed by the learned Member, Motor Accident Claims Tribunal, Sepahijala District, Bishalgarh in connection with T.S. (MAC) No.33 of 2017. [3] The facts in brief are That on 05.01.2017, Binoy DebBarma, son of claimant petitioners was expired due to rash and negligently dash given by TR-01-B-1916 (Truck) at 3.30 p.m. to the Scooty No.TR-07-9466 near S.B.I.Branch, while said Binoy DebBarma, as pillion rider, was returning to his house with the rider, Bikash DebBarma. Both were succumbed to their injuries on 05.01.2017. After accident parents of deceased Binoy DebBarma filed claim petition U/S.166 of the M.V. Act claiming compensation of Rs.45,13,000/- which was registered as T.S.(MAC) 33 of 2017. But Ld. Member, Motor Accident Claims Tribunal, Sepahijala District, Bishalgarh, most illegally converted the claim petition from Section-166 to Section-163(A) of M.V. Act since the claimants could not prove rash and negligent driving of the offending truck vehicle and even there having no prayer. But, the learned Court below awarded compensation of Rs.20,36,000/- with 6% interest w.e.f. 16.02.2017 vide award dated 25.11.2022 without following 2nd schedule of Section-163(A) fixing liability upon O.P.No.2, National Insurance Company Ltd. and O.P.No.4, the United India Insurance Co. Ltd. jointly and severally. [4] The learned Tribunal after hearing the parties and on perusal of the material evidence on record has observed as under: “17. In the result, the application u/s 166 of the Motor Vehicles Act converted into an application u/s 163A of the MV Act, 1988 is hereby allowed. 17.1. The claimant petitioners are awarded a sum of Rs. Rs.20,36,200/- (Rupees Twenty lacs thirty six thousand two hundred) only as compensation in this case for the death of their son Binoy Debbarma which they shall receive in equal share i.e. 50% each. The OP No. 2, the National Insurance Company Ltd. and OP No. 4, the United India Insurance Company Ltd., Insurers of the scooty bearing no. TR07-9466 and the truck vehicle bearing no. TR-01-B-1916 respectively are jointly and severally liable to pay the compensation along with simple interest @ 6% per annum on the compensation amount from the date of filing this claim case (i.e. 16.02.2017) until realization. The awarded amount be transferred by the OP No. 2 & 4 by way of RTGS/NEFT directly to the CD account of this Tribunal bearing No. 8105050326247 held with the Tripura Gramin Bank, Office Tilla Branch, Bishalgarh within 30 (thirty) days from today. 17.2. The OP No. 2 & 4 shall give notice of the deposit of the compensation amount to the claimant and shall also file a compliance report with this Tribunal within 15 days of the deposit. 17.3. Considering all the aspects of the matter, keeping in mind the settled guidelines in the case of Kerala SRTC Vs Susamma Thomas, (1994) 2 SCC 176, as well as case law in Smt. Rupa Roy Vs TSLSA and others in WP(C) No. 142 of 2013 decided by the Hon'ble High Court of Tripura, etc., it is ordered that 50% of the amount of compensation with interest shall be invested in long term fixed deposit in the name of the claimant petitioners for at least 5 years. The rest 50% share of each claimant petitioners shall be released to the claimant petitioners through their individual savings Bank Account held with any nationalized Bank. Also interest that will accrue on the Fixed Deposit amounts may from time to time be paid to the claimant petitioners through their savings bank account.” [5] Being aggrieved by and dissatisfied with the judgment and award dated 25.11.2022 passed by the learned Member, Motor Accident Claims Tribunal, Sepahijala District, Bishalgarh in connection with T.S. (MAC) No.33 of 2017, the present appeal has been preferred by the appellant insurance company. [6] Having heard the learned counsel appearing for the parties and also going through the observation made by the learned tribunal below, this Court is of the that the scooty while driving, from behind the truck has came and caused the accident and due to which, death has taken place and accordingly, the claim petition was filed. On behalf of the claimant three witnesses and relevant documents were examined and exhibited and the insurer of the scooty i.e. the National Insurance Company Ltd have submitted their written statement during trial and for the purpose of reference, the same may be extracted hereunder: “4. OP No. 2, the National Insurance Company filed W/S on their behalf and contented that the claim petition is not maintainable and it is frivolous, baseless and highly speculative and there is no cause of action for the claimant petitioners to file the instant case against the answering OP No.2. It is also stated that the liability of answering OP, if any, will always subject to terms and conditions of policy of Insurance, the Provisions of Motor Vehicles Act, 1988 and the rules made thereunder as amended from time to time. The answering OP did not yet receive any report from the concerned PS nor any information regarding the alleged accident from the owner of the scooty bearing no. TR-07-9466. The OP No. 2 also denied each and every statement, averment and allegations made in the claim petition except those which are specifically admitted in the W/S and the claimant petitioners are put to strictest proof. The answering OP have no knowledge as to whether the rider of the scooty had any valid licence at the time of accident and the claimants are put to strictest proof that the rider had valid licence at the time of alleged accident. Further answering OP is not liable to indemnify any loss or damages sustained by the policy holder, if the policy condition is violated and breach of policy condition especially relating to the driving licence and use of the vehicle shall entitle the answering OP to avoid the liability as per section 149(2) of the MV Act. The OP No. 2 also specifically denied the age of deceased was 23 years or that he had welding business or that his monthly income was Rs.18000/- per month or that his employers was Sri Parimal Das or Ashim Sarkar and the claimant petitioners are required to prove the same by cogent documentary evidence. Also OP No. 2 stated that amount of compensation sought at Rs.45,13,000/- is highly exorbitant and excessive. OP No.2 stated that from the descriptions of claim petition it is crystal clear that the scooty bearing No. TR-07-9466 had no fault in the alleged accident and the Truck bearing No. TR-01-B-1916 which was coming from the back side of the scooty with excessive speed and rash and negligent manner suddenly dashed the scooty for which the accident occurred and so the petitioners are not entitled to get any compensation against the answering OP No.2.” [7] It is seen from the record that the scooty was hit from behind by the truck which was insured by another insurance company i.e. United India Insurance Company Ltd. and the policy was valid at the time of accident and in their support they have also filed their written statement. But the learned Court below while considering the case of the claimant has converted Section-166 to Section-163A is one line argument made by the learned counsel appearing for the appellant i.e. the National Insurance Company Ltd. [8] The learned counsel appearing for the respondent-claimant has submitted that the learned Court below has not committed any error in conversion since it is a beneficial legislation and it is well within the jurisdiction of the Court and by following the judgment of the Gujarat High Court in case of Oriental Insurance Company Ltd v. Chintharbhai Sibbabhai and Others, reported in 2003 (1) GLH 394 and Narshiji Nagaji Majirana v. Manigilal Amturam Bishnoi, reported in AIR 2004 Guj. 157. [9] The learned counsel appearing for the respondent-insurance company (insurer of the truck) submits that they are not liable to pay the compensation as there is no rash and negligence on their part. It is seen from the evidences and records that the United India Insurance Company Ltd. has not made any whisperer in their defence on this point but whereas, there is a categorical averment made in the written statement filed by the National Insurance Company Ltd. and they have not adduce any evidence by entering in the witness doc and on the strength of investigating report only, they tried to advance their submissions. [10] Viewed from any angle, this Court is of the considered view that since the accident has occurred from behind the scooty, it cannot be said that it is a case of contributory negligence and therefore, the entire liability is fasten upon the United India Insurance Company Ltd. Insofar as the quantum of compensation is concerned, it shall remain intact and only the liability of paying the compensation as awarded by the learned Court below shall be paid by the United India Insurance Company Ltd. Further, whatsoever amount is paid by the National Insurance Company Ltd., the same may be recovered from the United India Insurance Company Ltd. Accordingly, the finding as arrived at by the learned Court below is modified to the extent as indicated above. [11] As a sequel, miscellaneous applications pending, if any, shall stand closed. Draw the decree accordingly and thereafter, send down the LCRs forthwith. T. Amarnath Goud, J A.Ghosh ANJAN GHOSH Digitally signed by ANJAN GHOSH Date: 2025.02.05 15:43:36 +05'30'