BEFORE THE MEMBER OF MOTOR ACCIDENT CLAIMS TRIBUNAL;DHEMAJI. Present : Shri L. Hazarika, B.A. (Hons), LL.B., M.A.C.T. CASE NO. 15/2010.

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1 1 BEFORE THE MEMBER OF MOTOR ACCIDENT CLAIMS TRIBUNAL;DHEMAJI. Present : Shri L. Hazarika, B.A. (Hons), LL.B., M.A.C.T. CASE NO. 15/2010. Claimants :- (1) Smti Mileswari Borpatragohain, W/O Lt. Durgeswar Borpatragohain, P. S. Gogamukh, Dist. Dhemaji, (2) Smti Rubi Borpatragohain, R/O Vill. Borua Pathar, P.S. Gogamuk, Dist. Dhemaji. (3) Smti Kamaleswari Borpatragohain D/O Lt. Durgeswar Borpatragohain, R/O Borua Pathar Gaon, P.S. Gogamukh, Dist. Dhemaji, ADVOCATES: (4) Shri Manuj Borpatragohain, S/O Late Durgeswar Borpatragohain, R/O Vill. Borua pathar, P.S. Gogamukh, Dist. Dhemaji. -Versus- (1) Shri Bomjen Hale S/O Nayabom ale, R/O Borapani,Nahar Lagoon, Dist. Papumpare, A.P. (Owner & driver of the offending M/Cycle bearing Regd. No.AR o1 D/3248) (2) The Divisional Manager, Oriental Insurance Co. Ltd., Divisional Office, Itanagar,Takkar Complex, Nahar Lagoon, A.P. - (Insurer of the offending Motor Cycle bearing Regd. No.AR -01 D/3248) (1) For the claimants : Mr. G.S. Lahan (2) For the Insurance Co. (1) Mr. G.C. Buragohain (2) Mr. P. Konch,

2 2 Date of hearing on ; ; and Date of judgement on J U D G E M E N T : (1) This claim-petition has been filed by the claimants-(1) Smti- Mileswari Borpatragohain ; (2) Smti Rubi Borpatragohain ; (3) Smti Kamaleswari Borpatragohain and (4) Manuj Borpatragohain u/s 166 of the M.V. Act against the opposite parties- (1) Bomjen Hale, driver-cum- owner and (2) Divisional Manager,Oriental Insurance Co. Ltd., the insurer of the offending Motor Cycle bearing Registration No. AR-01 D/ 3248, claiming compensation for occurring the death of the deceased- Durgeswar Borpatragohain in a vehicular accident that had occurred on the NH-52 at Borua Pathar on at about 6'30 A.M. (2) In the morning on at about 6'30 A.M. while Bhugeswar Borpatragohain was proceeding to his house from Bordoloni Tiniali on foot on the NH-52, the opposite party No.1 Bomjen Hale by driving themotor Cycle bearing Registration No. AR-01 D/3248 rashly and negligently knocked down Durgeswar Borpatragohain causing serious injuries on his head and other parts of the body who succumbed to his injuries. The deceased at the time of his death left the claimants- Mileswari Borpatragohain ; Rubi Borpatragoihain; Kamaleswari Borpatragohain and Manuj Borpatragophain, Claimant Nos. 1,2,3, and 4 respectively, as legal heirs. The claimants have alleged that the deceased at the time of his death earned Rs,8,000/- per month doing cultivation and green grocery. (3) The opposite party No. 1 has submitted his written statement contending that the accident had occurred for the fault of the deceased-durgeswar Borpatragohain in spite of trying his best to avoid the accident. It is also alleged by the opposite party No.1 that there was no rash and negligent act on his part in driving the motor cycle. It is further contended by the opposite party No.1 that the amount of

3 3 compensation claimed by the claimant is exorbitant. Further more, it is contended by the opposite party No.1 that at the material time the motor cycle was insured with the Oriental Insurance Co. Ltd., Nahar Lagoon and the Oriental Insurance Co. is liable to indemnify the compensation to the claimants on behalf of him. (4) The Opposite Party No.2 has submitted the written statement contending that the claim is not maintainable against the opposite party NO.2 and the amount of compensation claimed by the claimants is excessive and exorbitant. The O.P. Insurance Co. has denied all the averments of the claimants. (5) Upon the pleadings of the parties, the following Issues have been framed :- I S S U E S : (1) Whether Durgeswar Borpatragohain sustained bodily injuries and succumbed to injuries? (2) Whether he sustained injury due to rash and negligent driving of the motor cycle bearing Regd. No. Ar-01 D /3248? (3) Whether the claimants are entitled compensation? (4) What other relief/reliefs they are entitled? (6) The claimants have examined altogether 4 witnesses, and produced some documentary evidence. The opposite Parties have not examined any witness. I have heard argument advanced by the learned Counsel for both sides. Let me consider the evidence in the light of the evidence on records. (7) I s s u e Nos. 1 and 2 : For the sake of my convenience, I have taken to discuss both the Issue No.1 and 2 together. The evidence of P.W-1,2 and 3 is that in the morning on at about 6'30 A.M. hearing a sound they came out and found while Durgeswar Borpatragohain was lying down sustaining injuries and at the place of occurrence the driver of the

4 4 offending motor cycle bearing Registration No., AR-01 D /3248 was also lying down. It is also in the evidence of PW-1,2 and 3 that the accident had occurred due to rash and negligent driving of the offending vehicle by the driver. Further, it is in the evidence of PW-1,2 and 3 that Durgeswar Borpatragohain succumbed to the injuries. (8) P.W-4 claimed himself to be eye witness to the accident and his categorical evidence is that in the morning on at about 6/6'30 A.M. on the NH-52 at Bordoloni Tiniali the driver of the offending motor cycle bearing Registration No. AR-01 D/ 3248 by driving the offending motor cycle rashly and negligently at a high speed knocked down Durgeswar Borpatragohain causing injuries who afterward succumbed to his injuries. The occurrence took place on but PW-4 shifted the date of occurrence to it is not disputed the fact of occurring the accident involving the offending motor cycle NO.AR-01 D / 3248 causing the injuries to Durgeswar Borpatragohain by the opp. Party No.1. It is also not disputed the fact of occurring the death of the deceased-durgeswar Borpatragohain for the injuries sustained by him in the vehicular accident. Considering the evidence on records leaving aside the evidence of PW4, it can safely be concluded that Durgeswar Borpatragohain received injuries on his person in the vehicular accident as a result of driving the motor cycle bearing Registration No. AR-01 D/ 3248 by the opp. Party NO.1 who afterward succumbed to his injuries. Accordingly, the Issue Nos. 1 and 2 are decided in favour of the claimants. Issue Nos. 3 and 4 : (9) For the sake of my convenience, I have taken to discuss both the Issue Nos. 3 and 4 together. It appears from the evidence on records that, the claimant Nos.1,2,3 and 4 are the legal representatives of the deceased, It was already held by me that the death of Durgeswar Borpatragohain had occurred in the vehicular accident due to rash and negligent driving of the offending motor cycle bearing Regd. No. AR- 01 D / 3248 of the opposite party NO.1. (10) Now, the point to be considered is the age as well as monthly income of the deceased at the time of his death. It is revealed

5 5 from the Post Mortem Examination Report that ast the time of occurring the death, the age of the deceased-durgeswar Borpatragohain was 70 years. According the the claimants, the deceased earned his bread by cultivation and there was no defenite income of the deceased at the time of occurring his death. It is in the evidence of claimants that the deceased at the time of his death earned Rs.8000/- P.M. Since there was no definite monthly income of the deceased at the time of his death by doing cultivation, the average monthly income of the deceased can be calculated at Rs. 3000/- P.M. and deducting 1/3 rd of the income, the yearly income of the deceased will be Rs.2000'00 X 12 = Rs. 24,000/-. Since the deceased at the time of his death in the vehicular accident was about 70 years of age, taking into consideration the multiplier '5', the claimants are entitled to get Rs.24,000'00 X 5 = Rs. 1,20,000/-. the claimants are also entitled to get Rs. 2,000/- as funeral expenses. Each of the claimants are entitled to get equal share. (11) Now, the point to be considered is from whom the claimants are entitled to get compensation. On perusal of documentary evidence, it appears that at the material time, the offending motor cycle was insured with the Oriental Insurance Co. Ltd., Itanagar, Arunachal Pradesh and the Insurance Co. is liable to indemnify the compensation to the claimants on behalf of the owner. The Opposite Party No.2 is directed to pay the compensation of Rs.1,22,000/- (Rupees one lakh twenty two thousand) only to the claimants within a month from today with interest at the rate of 9% p.a. till realization. Copy of the judgement is to be sent to the Insurance Co. for payment. Judgement is pronounced in open Court. (12) Given under my hand and seal of this Court on this the 3 rd day of April,2012. ( L. Hazarika ) Member, Motor Accident Claims Tribunal, Dhemaji. Typed by me :- ( B. K. Buragohain, Steno.)

6 6 M.A.C.T. CaseNo.15/2010. Case Record put-up. Both the parties have appeared through the learned Counsel. Judgement is ready and pronounced in open Court. The claim-petition is allowed. An amount of Rs.1,22,000/- ( Rupees one lakh twenty two thousand ) only is awarded as compensation to the claimants. Each of the legal representatives of the deceased is entitled to get equal share. The opposite party No.2 being the insurer of the offending motor cycle, is to indemnify the compensation to the claimants on behalf of the opposite party NO.1, the owner of the offending motor cycle. The opposite party No.2, Oriental Insurance Co. Ltd. is directed to pay the compensation of Rs.1,22,000/- (Rupees one lakh twenty two thousand)only to the claimants within a period of one month from today with 9% p.a. till realization. Detail judgement is given in separate sheets. Member, Motor Accident Claims Tribunal, Dhemaji.