In the Motor Accident Claims Tribunal, Kokrajhar. Present M. A. Choudhury. Member, MACT, Kokrajhar. MAC CASE NO 100 of 2011.

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1 1 In the Motor Accident Claims Tribunal, Kokrajhar. Present M. A. Choudhury. Member, MACT, Kokrajhar. MAC CASE NO 100 of Smti Anita Brahma. Vs. 1. Sri Raja Basumatary. 2. Sri Amar Brahma Claimant Opp Parties. Advocates appeared in the case : Mr. R. J. Bargayari, Advocate For the Claimant. Mr. A. S. Talukdar, Advocate For the OPP Party nos-1 & 2. Date of hearing Argument Date of delivery of Judgement JUDGMENT 1.The wife of the deceased Barendra Nath Brahma filed the instant claim petition under section 166 read with section 140 of the M. V. Act claiming compensation for the death of the deceased in a motor vehicle accident dated involving vehicle no AS-19D/3514 (Motor Cycle). 2.The facts giving rise to this case is that on at about 4-30 p.m., the deceased Barendra Nath Brahma was standing with his bicycle by the side of P.W.D Road at Gambaribil Daily Evening Market. At that time, a Motor Cycle bearing registration No-AS-19D/3514 which was coming from Mukuldang side in a rash and negligent manner, knocked the deceased Barendra Nath Brahma in his back side. The deceased fell down along with his bicycle and sustained severe injuries upon his head and other parts of his body. The deceased instantly became senseless. Soon after the accident, the deceased was carried to Dotma CHC. The attending Doctor of the Hospital referred him to better Hospital. Immediately, on the same day,

2 2 the deceased was taken to Lower Assam Hospital & Research Centre, Bongaigaon and admitted there in. But, on the following day ie, on , the deceased succumbed to the injuries at Lower Assam Hospital & Research Centre, Bongaigaon. The Post Mortem of the deceased had been conducted at Bongaigaon Civil Hospital. 3. The Opp Party nos-1 & 2 contested the case by filing joint W.S. The Opp Party side in their joint W.S. besides denying all the averments made in the claim petition raised the plea that the claim petition is not maintainable. In the W.S., it has been stated that the accident had taken place due to the negligence of the deceased as the deceased at the time of accident was in drunken condition. It is further stated that the compensation claimed by the claimant side is excessive, exaggerated and having no real basis. The Opp Party side stated that they are not liable to pay any compensation. The Opp Party side prays for dismissing the claim petition. 4. Upon the pleadings of both sides, the following Issues were framed for adjudication : (I) (II) Whether the deceased Barendra Nath Brahma died as a result of injuries sustained by him in the alleged motor vehicle accident dated involving vehicle no-as-19d/3514 and whether the said accident had taken place due to rash and negligent driving of the offending vehicle? Whether the claimant is entitled to any compensation and if yes, to what extent and by whom amongst the Opp Parties, the said compensation amount will be payable? 5. To prove the case, the claimant side examined three witnesses. The Opp Party side examined no witness. Heard Argument from both sides. Perused the materials on record and upon consideration of the same, the Issues are decided as under : 6. ISSUE NO-I The claimant side has averred in the claim petition and the claimant Smti Anita Brahma in her evidence stated that on at about 4-50 p.m., she was in the house and busy with household works. At that time, one of her relatives informed her that her husband Barendra Nath Brahma had met accident with a Motor Cycle and sustained injuries upon his person. Then she went to the place of occurrence and found the deceased

3 3 had sustained severe injuries on his head and some other parts of his body and had been lying in an unconscious condition. She found the offending Motor Cycle was also lying by the side of the road. Immediately, her husband was taken to Dotma CHC. The attending Doctor of the Hospital referred him to higher Hospital for treatment. Quickly, her husband was taken to Lower Assam Hospital & Research Centre, Bongaigaon and admitted there in as indoor patient. But, on the following day, her husband was passed away. She in her evidence stated that regarding the occurrence, a case was registered with Kachugaon Police Station being numbered as Kachugaon P.S. Case No- 36/2011, u/ss- 279, 427, 304(A) IPC. In support of her oral evidence, she has proved the certified copy of FIR as Ext-1, Accident Information Report as Ext-2, Post Mortem Report as Ext-4 and other documents including medical advice slips and cash memos. Indeed, the evidence adduced by her as regards the factum of accident involving the offending vehicle and sustaining of injuries by the deceased leading to his death remained unshaken in her cross-examination. She in her evidence stated that the accident had taken place due to rash and negligent driving of the offending vehicle. 7. P.W.2 Sri Dhairjya Narayan Brahma is the brother of the deceased as well as the eye witness to the occurrence. He in his evidence stated that on at about 4-30 p.m., he was standing at Gambaribil Daily Evening Market for the purpose of marketing and at that time, his younger brother the deceased Barendra Nath Brahma was standing with his bicycle near PWD Road side. At that time, a Motor Cycle bearing registration no-as-19d/3514 which was coming from Mukuldang side in a rash and negligent manner, knocked the deceased. As a result, the deceased fell down on the ground along with bicycle and sustained severe injuries upon his head and other parts of his body and became senseless. Immediately, the deceased was taken to Dotma CHC. But, the Doctor of the Hospital referred him to better Hospital. Then and there, the deceased was taken to Lower Assam Hospital & Research Centre, Bongaigaon and admitted there in as indoor patient. But, on , the deceased succumbed to the injuries at Lower Assam Hospital & Research Centre, Bongaigaon. He in his evidence specifically stated that the accident had taken place due to rash and negligent driving of the offending vehicle. In fact, the evidence adduced by him as regards the factum of accident involving the offending vehicle and sustaining of injuries by the deceased leading to his death remained unshaken in his cross-examination. The Opp Party side did not adduce any evidence to rebut the evidence adduced by the claimant side. Even the rider of the offending Motor Cycle who had personal knowledge regarding the occurrence after filing W.S. opted not to face the

4 4 case and avoided the witness box. In view of the above evidence of the claimant side and in the absence of any evidence contrary there to, there can be no escape from the conclusion that the accident causing injuries upon the person of the deceased leading to his death had taken place due to rash and negligent driving of the offending vehicle. Hence, this Issue is decided in favour of the claimant side. 8. ISSUE NO-II In view of the discussion and decision made in Issue no-i, I am of the opinion that the claimant side is entitled to compensation. The claimant in the instant case is the wife of the deceased and as such, the age of the deceased is to be considered for computing the loss of dependency. In the instant case, for assessing the quantum of compensation, the claimant side is entitled to, the following three components are required to be established by the claimant side (i) age of the deceased (ii) income of the deceased (iii) number of dependents. In the claim petition, the age of the deceased has been mentioned as 54 years. From the evidence of the claimant, it is appeared that at the time of death, the deceased was serving as a Peon of the Handloom & Textiles Department at Gambaribil under the Office of the Superintendent of Handloom & Textiles, Gossaigaon. To prove the age of the deceased, the claimant side examined one witness named Sri Dijendra Kachari as P.W.3 who is the Superintendent, Handloom & Textiles, Gossaigaon. He in his evidence stated that the deceased Barendra Nath Brahma was the permanent 4 th Grade employee of his establishment who was working in the River Extention Service Unit Branch, Gambaribil. He in his evidence stated that Barendra Nath Brahma had died in a motor vehicle accident. He in his evidence stated that he had brought the Service Roll of the deceased before the court. As per Service Roll, the date of birth of the deceased is He proved the Service Roll as Ext-21. There fore, from his evidence, it is appeared that at the time of death, the deceased was age of above 50 years. Thus, the age of the deceased at the time of his death comes in to the age group of years. With the age of the deceased in the age group of years, the proper multiplier would be 11 as per guide lines of the Apex Court in Sarla Verma case. Coming to the second component, the claimant in her evidence stated that the deceased at the time of his death, was working as Peon in the Handloom and Textiles Deptt. at Gambaribil under the establishment of Superintendent, Handloom & Textiles, Gossaigaon and was drawing salary

5 5 of Rs-14,479/- per month at the time of his death. P.W.3 Sri Dijendra Kachari in his evidence stated that in the month of September, 2011, the deceased had got gross salary of Rs-15,937/-. He proved the last Pay Certificate of deceased as Ext-5 and Ext-5(1) is his signature in it. Perused the Ext-5. It is the Pay certificate of the deceased for the month of September, In Ext- 5, the gross pay of the deceased for the month of September, 2011 has been mentioned as Rs-15,937/-. From Ext-5, it is found that the deceased used to pay Professional Tax of Rs-208/- per month. After deduction of the professional Tax, the monthly salary of the deceased comes to Rs-15,729/-. Therefore, the annual salary of the deceased would be Rs-1,88,748/-. Coming to the third component, it is appeared that the claim petition has been filed by the wife of the deceased showing herself as only dependent of the deceased. From the evidence of the claimant, it is found that the deceased left behind sons and daughters. But, there is nothing in the evidence of the claimant whether the sons and daughters of the deceased have been depending upon the income of the deceased. In such a situation, the deduction towards personal and living expenses of the deceased would be 1/3 as per guide lines of the Apex Court in Sarla Verma Case. 9. The claimant side has submitted some medical advice slips and cash memos of Lower Assam Hospital & Research Centre, Bongaigaon to show that the claimant side has incurred expenditure towards the treatment of the deceased in the aforesaid Hospital before his death. To prove the expenditure incurred by the claimant side in the treatment of the deceased, the claimant side has submitted before the Tribunal, the medical advice slips and cash memos being marked as Ext-7 to Ext-17 and Ext-17(i). Scrutiny of the medical documents and cash memos transpire that the claimant side has incurred an expenditure of Rs-11,000/- in the treatment of the deceased. 10. Thus, taking the annual income of the deceased at Rs- 1,88,748/- and applying the multiplier 11, the loss of dependency after deducting one third on account of personal and living expenses of the deceased, comes to Rs-13,84,152/-. Besides loss of dependency, the claimant is entitled to funeral expenses as well as some amount of nonpecuniary damages as loss of consortium as the widow of the deceased is the claimant of the case. Thus, the just and reasonable compensation to which the claimant side is entitled to is assessed as under :-

6 6 Loss of dependency Rs-13,84, Medical expenditure Rs- 11, Loss of consortium Rs- 10, Funeral expenses Rs- 10, Total Rs-14,15, It is an admitted fact that the offending vehicle was not insured with any Insurance Co. Therefore, the owner of the offending vehicle is to satisfy the award. 11. AWARD Rs-14,15, ( Rupees fourteen lakh fifteen thousand one hundred and fifty two only) is awarded as compensation to the claimant with 6% p.a. from the date of filing of the claim petition till payment. The Opp Party no-1 the owner of the offending vehicle is directed to pay the award to the claimant with in one month from the date of this order. The amount, if any, paid as no fault liability, shall be adjusted. Out of the awarded amount, Rs-10,00, (Rupees ten lakh only) be fixed deposited in the name of the claimant in a nationalised bank for a period of three years. forthwith. 12. Free copy of the Judgment be given to the both sides 13. Given under my hand and the seal of this court on this the 20 th day of September, Typed by (M. A. Choudhury) Member, MACT, Kokrajhar. ( M. A. Choudhury) Member, MACT, Kokrajhar. ************************

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