IN THE COURT OF THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL AT JORHAT

Transcription

1 IN THE COURT OF THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL AT JORHAT Present: Mr. P.K. Khanikar, B.Sc., LL.M., AJS Member, Motor Accident Claims Tribunal, Jorhat. JUDGMENT IN M.A.C. CASE NO. 55 OF 2011 Smt. Anamika Goswami, Wife of Sri Ranjan Goswami, Resident of Jonaki Nagar, Choladhara Road, P.S. Jorhat, District Jorhat... Claimant - Versus - 1). Mrs. Anowara Begum, Wife of Md. Abdul Salam, Resident of Matekadhing, P.O. Mithapukhuri, P.S. Juriya Nagar, District-Nagaon [Owner of Tata Winger No. AS 02 E/2498] 2]. Md. Monohor Hussain, Son of md. Habib, Resident of Chinapatty, Azad Nagar, District-Nagaon [Driver of Tata Winger No. AS 02 E/2498] 3]. The Manager, Bajaj Allianz General Insurance Company Limited, 2 B Centre Point, 2 nd Floor, G.S. Road, Ulubari, Opposite Bora Service, Guwahati (Insurer of Tata Winger No. AS 02 E/2498) 4]. Sri Pradip Kumar Sarmah, Son of Late Someswar Sarmah, Resident of Satijoymoti Road, Hoibor Gaon, P.S. Nagaon, District-Nagaon [Owner of Tata Dumper No. AS-21 B/0351] 5]. Sri Rajen Singh, Son of Late Bashanta Singh,

2 2 Resident of Baluhundar Gaon, P.S. Lanka, District-Nagaon [Driver of Tata Dumper No. AS-21 B/0351] 6]. The Manager, United India Insurance Company Limited, G.F. Road, Bengenakhowa, District-Golaghat (Insurer of Tata Dumper No. AS 21 B/0351). Opposite Parties Date of Argument : Date of Judgment : APPEARANCES For the Claimant : Sri Mrinal Jyoti Bordoloi, Advocate For the Opposite Parties : Sri Binod Kumar Beriya, Advocate Smt. Sumitra Pegu Doley, Advocate JUDGMENT 1). The claimant Smt. Anamika Goswami who is self employed having Oriflame business has claimed compensation to the tune of Rs. 7,55,000/- [Rupees Seven Lakhs & Fifty-five Thousand] on account of injuries sustained by her in a motor accident. The claimant s case, in brief, is that on at about 2.00 P.M. the claimant alongwith her three friends boarded the ill-fated Tata Winger bearing registration No. AS-02 E/2498 by obtaining journey ticket from its counter at ISBT. Jorhat for her destination to Guwahati to attend an urgent business related meeting as a legitimate passenger. After boarding the bus the same met with an accident due to rash and negligent driving of the driver of the aforesaid Tata Winger vehicle. It is further contended that the ill-fated vehicle engaged in a head on collusion at about 2.45 P.M. on the National Highway No- 37 near Kamargaon under Kamargaon P.S. District-Golaghat with a Tata Dumper bearing registration No. AS-21 B/035, for which, the claimant sustained serious injuries/fractures and sustained right hip dislocation, right wrist compound fracture, head injury as well as cut injuries on her face and other parts of her 2

3 3 body. Further version of the claimant is that she was taken to Bokakhat Civil Hospital from where after preliminary investigation the doctors referred her to Jorhat Medical College & Hospital for better medical treatment. But she was admitted at Sanjivani Hospital, A.T. Road, Jorhat and she was discharged from the said hospital on 15/05/2011. It is further stated by the claimant that the offending vehicle, i.e., AS-02 E/2498 [Tata Winger] was driven by its driver in a rash and negligent manner as a result of which the claimant who was a passenger of the said Winger vehicle sustained grievous injury on her body. Hence, the claim petition u/s. 166 of Motor Vehicles Act. 2). The O.P. Nos-4, & 5, owner and driver of Tata Dumper bearing registration No. AS-21 B/0351 did not choose to contest the claim of the claimant and hence the case proceeded exparte against them. The O.P. No-1, Smt. Anowara Begum, owner of Tata Winger vehicle bearing registration No. AS-02 E/2498 filed her written statement submitting therein that the claimant has no cause of action for the proceeding; that the claim petition is not maintainable in its present form; that the same is bad for non-joinder of necessary parties; that the vehicle was duly insured with Bajaj Allianz General Insurance Company Limited [O.P. No-3] and compensation if any is granted should be borne by the insurance company as the vehicle had duly insurance coverage at the time of accident. It is also submitted that the driver of the aforesaid vehicle had a valid driving licence. Md. Monohar Hussain [O.P. No-2], driver of Tata Winger vehicle bearing registration No. AS-02 E/2498 by filing written statement contended inter-alia that there is no cause of action; that the claim petition is not maintainable in its present form; that the case is bad for non-joinder of necessary parties; that he possessed a valid driving licence at the time of accident and on the date of accident he was driving the vehicle with due care and caution and was never negligent. The O.P. No-3, Bajaj Allianz General Insurance Company Limited filed their written statements contending inter-alia that the claim petition is not maintainable in law as well as on facts; that there is no cause of action for the claim petition. Further contention of this O.P. is that the driver did not possess a valid driving licence at the time of accident. So, the insurance company is not 3

4 4 liable to pay any compensation to the claimant. The insurance company further denied about the age, income of claimant and about date, time & place of accident and nature of injury alleged to be sustained by the claimant. The O.P. No-6, United India Insurance Company Limited filed their written statements contending inter-alia that the claim petition is not maintainable in law as well as on facts; that there is no cause of action for the claim petition. Further contention of the O.P. is that two vehicles were involved on the date of accident and due to negligence of the driver of vehicle bearing registration No. AS-02 E/2498 [Tata Winger] the accident in question occurred. So, the insurance company is not liable to pay any compensation to the claimant. The insurance company further denied about the age, income of claimant and about date, time & place of accident and nature of injury alleged to be sustained by the claimant. 3). Upon the pleadings, the following issues were framed. ISSUE NO 1: Whether the accident occurred due to rash and negligent driving by the driver of the offending vehicles No. AS-02 E/2498 [Tata Winger] and AS-21 B/0351 [Tata Dumper]? ISSUE NO 2: Whether the driver of the offending vehicle had valid driving licence at the time of accident? ISSUE NO 3: Whether the claimant is entitled to get compensation? If so, to what extent and by whom it shall be paid? 4). In course of hearing, the claimant adduced herself and three other witnesses in support of her claim. Both were cross-examined by the O.P./Insurance Company. The opposite party, i.e., United India Insurance Company Limited also adduced evidence of its Administrative Officer Sri Chitra Ranjan Goswami. The claimant also exhibited the following documents- Exhibit-1 Journey Ticket Exhibit-2 Accident Information Report in Form No-54 Exhibit-3, 4 & 10 Prescriptions Exhibit-5 Blood report 4

5 5 Exhibit-6 Exhibit-7 Exhibit-8, 9 & 12 Exhibit-11 Details of medicines Clinical laboratory report Advice slips Discharge certificate Exhibit-13 to Exhibit- 27 Exhibit-28 Exhibit-29 Exhibit-30 to Exhibit- 53 Exhibit-54 to Exhibit- 59 Cash memos Bill of Sanjivani Hospital, Jorhat Money receipt Cash memos and money receipt Medical expenses receipts 5). I have heard the argument placed by the learned counsel for the claimant as well as the opposite parties. For just decision of the case the following issue wise discussion is taken up. DECISIONS AND REASONS THEREOF: 6). ISSUE NO 1 Whether the accident occurred due to rash and negligent driving by the driver of the offending vehicles No. AS-02 E/2498 [Tata Winger] and AS-21 B/0351 [Tata Dumper]? Smt. Anamika Goswami [PW-1] who is the claimant of the instant proceeding deposed during her testimony reiterated the same version as disclosed in her claim petition. It is stated by her that on at about 2.00 P.M. the claimant alongwith her three friends boarded the ill-fated Tata Winger bearing registration No. AS-02 E/2498 by obtaining journey ticket from its counter at ISBT. Jorhat for her destination to Guwahati to attend an urgent business related meeting as a legitimate passenger. After boarding the bus the same met with an accident due to rash and negligent driving of the driver of the aforesaid Tata Winger vehicle. It is further contended that the ill-fated vehicle engaged in a head on collusion at about 2.45 P.M. on the National Highway No- 5

6 6 37 near Kamargaon under Kamargaon P.S. District-Golaghat with a Tata Dumper bearing registration No. AS-21 B/035, for which, the claimant sustained serious injuries/fractures and sustained right hip dislocation, right wrist compound fracture, head injury as well as cut injuries on her face and other parts of her body. Further version of the claimant is that she was taken to Bokakhat Civil Hospital from where after preliminary investigation the doctors referred her to Jorhat Medical College & Hospital for better medical treatment. But she was admitted at Sanjivani Hospital, A.T. Road, Jorhat and she was discharged from the said hospital on 15/05/2011. It is further stated by the claimant that the offending vehicle, i.e., AS-02 E/2498 [Tata Winger] was driven by its driver in a rash and negligent manner as a result of which the claimant who was a passenger of the said Winger vehicle sustained grievous injury on her body. During cross-examination, she disclosed that the Winger vehicle in which she was travelling when tried to overtake another vehicle it dashed against the Tata Dumper which was coming from the opposite direction. She admitted that she has not submitted any certificate of occupation; that she has not submitted any paper as to her business target and also that she has not mentioned in her affidavit as well as in her claim petition that the accident occurred as because the driver of the Winger vehicle tried to overtake another vehicle and dashed against the Dumper. Sri Ranjan Goswami [PW-2] who is the husband of the claimant is not any eyewitness to the occurrence. His evidence is to the effect that after receiving of the information he arrived at Bokakhat and took his wife for treatment to Jorhat in the evening hours and thereafter admitted her at Sanjivani Hospital, Jorhat. Dr. Bhaskar Bhagowati [PW-3] disclosed during his evidence that the claimant was under his treatment w.e.f. 08/05/2011 to 15/05/2011 at Sanjivani Hospital, Jorhat due to road traffic accident presenting with posterior dislocation right hip joint compound type and fracture dislocation right wrist joint. He exhibited the Exhibit-11 to be the discharge certificate issued by him and advised the patient to take rest for about 1 & half months and to undergo physiotherapy. During cross-examination, he admitted that the injuries suffered by the claimant are curable one. 6

7 7 Smt. Jani Hazarika Bora [PW-4] who is a Physiotherapist during her testimony divulged that Exhibit Nos. 54 to 59 were issued by her to the claimant Smt. Anamika Goswami and the claimant has not yet fully recovered and she needs further physiotherapy for about six months to one year. From above testimonies of claimant [PW-1] and the doctor attending her [PW-3] and Physiotherapist [PW-4] it appears that the claimant suffered grievous injuries as mentioned by her. Furthermore, it is also seen from the evidence of the claimant that due to rash and negligent driving of the driver of the Tata Winger the horrific accident took place which resulted in grievous injuries to the claimant. Nothing could be elicited during cross-examination of these PWs to discredit their version. Accordingly, keeping in view the unequivocal statement of the claimant as well as her witnesses and also by taking aid of the doctrine of res-ipsa-loquitor, I am bound to hold that the accident occurred due to rash and negligent driving on the part of the driver of the Bus bearing registration No. AS-02 E/2498 [Tata Winger]. 7). ISSUE NO 2 Whether the driver of the offending vehicle had valid driving licence at the time of accident? From Exhibit-2 [Accident Information Report in Form No-54] it is seen that Kamargaon P.S. Case No. 31/2011 under Sections 279/337/338/427 of IPC was registered against the driver of the vehicle bearing registration No. AS-02 E/2498 [Tata Winger] and the driving licence No NGG was seized by the investigating officer. From the Exhibit-2 it is seen that the driving licence of the driver was valid up-to 22/07/2013 whereas the accident occurred on 08/06/2011. No evidence laid by O.P. to show that the driver of the offending vehicle had no valid driving licence at the time of accident. Hence, it is held that the driver had a valid driving licence at the time of accident. Accordingly, this issue is decided. 8). ISSUE NO 3 Whether the claimant is entitled to get any compensation? And, if so, to what extent and by whom it shall be paid? 7

8 8 The exhibits exhibited by the claimant together with the Discharge certificate [Exhibit-11] it goes to establish that as a result of the accident the claimant suffered serious injuries on her person. Accordingly the injuries suffered by the claimant are evidently grievous in nature. The claimant appears to have incurred an approximate amount of Rs. 44,335/- [Rupees Forty-four Thousand Three Hundred & thirty-five] for her medical treatment vide Exhibit-13 to Exhibit-52 [Series of vouchers & cash memos]. Keeping in view the nature of injury suffered by the claimant and the length of treatment undergone by her the amount stated to have been incurred by the claimant for treatment of her injuries is found to be a reasonable one; the same is rounded to Rs. 45,000/- [Rupees Forty-five Thousand] and she is entitled to get the same reimbursed. Further, the claimant also asserted that vide Exhibit-54 to Exhibit-59 she is incurring substantial cost for physiotherapy session apart from medical expenses which is around Rs. 46,750/- [Rupees Forty-six Thousand Seven Hundred & fifty]. The amount is also found to be reasonable one and the same is rounded to Rs. 47,000/- [Rupees Forty-seven Thousand] and she is also found entitled to get the same reimbursed. The claimant in her claim petition asserted that she used to draw Rs. 25,000/- [Rupees Twenty-five Thousand] per month from her agency business yet she could not produce any income certificate and tax payable certificate in her favour. In that view of the matter the monthly income of the claimant is assessed at Rs. 5,000/- [Rupees Two Thousand] per month as a rule of thumb. Keeping in view the nature of injury suffered and the treatment received it can be guessed that the claimant was not in a position to pursue her avocation for a period of 3 [three] months. Accordingly, her loss of income is assessed at Rs. 5,000/- x 3=Rs. 15,000/- [Rupees Fifteen Thousand]. She is also found entitled to get an amount of Rs. 15,000/- [Rupees Fifteen Thousand] on the head of pain and sufferings alongwith further amount of Rs. 10,000/- [Rupees Ten Thousand] for loss of amenities. Thus, the claimant is found entitled to get the following amount as compensation: 8

9 9 PECUNIARY LOSS: Medical Expenses etc. Rs. 45,000/- Physiotherapy treatment Rs. 47,000/- Loss of Income Rs. 15,000/- Pain & Sufferings Rs. 15,000/- Loss of Amenities Rs. 10,000/- Total:- Rs. 1,32,000/- [Rupees One Lakh & Thirty-two Thousand] 9). As the driver of the Tata Winger vehicle bearing registration No. AS 02 E/2498 is alone found to be responsible for the accident, the driver alongwith the owner and insurer of the said vehicle are jointly as well as severally liable to make payment of the above amount of compensation to the claimant Smt. Anamika Goswami. As no negligence on the part of the driver of the Tata Dumper bearing registration No. AS-21 B/0351 is established the Opposite Parties No. 4, 5 and 6 namely Sri Pradip Kumar Sarmah [owner], Sri Rajen Singh [driver] and United India Insurance Company Limited [insurer] are not at all liable to pay compensation of any amount to the claimant. Accordingly claim against them stands dismissed. AWARD AND ORDER 10). As the Tata Winger vehicle bearing registration No. AS 02 E/2498 was duly insured with Bajaj Allianz General Insurance Company Limited, Guwahati branch [O.P. No-3], therefore, it is ordered that Opposite Party No-3, i.e., The Bajaj Allianz General Insurance Company Limited is directed to make the payment of Rs. 1,32,000/- [Rupees One Lakh & Thirty-two Thousand] including interim-relief, if any, found due to the claimant Smt. Anamika Goswami together with interest 8% per annum through an Account Payee Cheque from the date of filing of the claim petition, i.e.,

10 10 The O.P. No-3, The Bajaj Allianz General Insurance Company Limited being the insurer of Tata Winger vehicle bearing registration No. AS-02 E/2498 is further directed to clear the amount within a period of 90 [ninety] days, failing which, they shall be liable to pay future interest at the same rate from 30/09/2011 till its realization. 11). Furnish the either side with a copy of the judgment and the orders passed immediately. MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL, JORHAT Typed & transcribed by: Sri Mrinal Jyoti Bora (Stenographer) 10