IN THE COURT OF MEMBER, M.A.C.T. ::: MORIGAON. M.A.C Case No. 105/2008 U/S 166 M.V. Act

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1 IN THE COURT OF MEMBER, M.A.C.T. ::: MORIGAON M.A.C Case No. 105/2008 U/S 166 M.V. Act Present :- Md. I. Hussain Member, M.A.C.T., Morigaon. Petitioner :- Md. Billal Ali, Vs Opp. Party :- 1. Md. Ashif Ahmed, (Owner of vehicle No. AS , Bajaj Discover) 2. Divisional Manager, United India Insurance Co. Ltd. Jagiroad Branch, Jagiroad. (Insurer of vehicle No. AS , Bajaj Discover) Appearance of the Parties Advocate for Claimant :- Mr. P. B. Dey, Advocate. Advocate for the O.P. No. 1 :- None has appeared. Advocate for the O.P. No.2 :- Mr. R. K. Bharali, Advocate. Date of Evidence : Date of Argument : Date of Judgment : J U D G M E N T 1. This claim case has arisen on the petition No. 317 dated , filed by Md. Billal Ali, under Section 166 of the M.V. Act, 1988, praying to grant compensation due to injuries sustained by him in a motor vehicle accident. 2. The fact of the accident as revealed from the claim petition, in brief, is that on at about 4.00 P.M. while the claimant was coming from Jaluguti towards Nagaon on the vehicle bearing registration No. AS (Bajaj Discover), as a Pillion rider of the said vehicle, then suddenly the said offending vehicle (Bajaj Discover) turned over by the side of the road due to driving of the vehicle in rash and negligent manner at Barbhugia under Jaluguti P.P. As a result, the claimant

2 sustained grievous injuries on his person. The claimant was shifted to G. D. Nursing Home, Nagaon and Popular Nursing Home, Patna for treatment, where he took treatment from to , as indoor patient. His monthly income is Rs. 8,000/- as a businessman and was 50 years of age at the time of accident. 3. The claimant further states that in this connection, Jaluguti P.P. GDE No. 150 dated was recorded. The vehicle was insured with the United India Insurance Co. Limited, Jagiroad Branch, Jagiroad vide Policy No /31/07/02/ and valid up to The claimant now claim Rs. 7,00,000/- (Rupees seven lakh ) as compensation. 4. On receipt of notice, opposite party No.1 did not appeared to contest the case by filing written statement. So, case against him proceeded ex-parte. Opposite party No. 2 appeared and written statement. 5. Opposite party No. 2, United India Insurance Co. Ltd. in the written statement raised the usual legal pleas and submitted that there is no cause of action to file the case and denied the contents of the claim petition. It is also submitted that the claim as made in the claim petition is highly excessive, exorbitant, exaggerated and without any base. Claimant is put to strict proof of the contents made in the claim petition as regard the accident took place by the Bajaj Discover bearing registration No. AS The opposite party No. 2 prayed to dismiss the claim petition. 6. On the pleadings of the parties, following issues were framed : (i) Whether the accident took place due to rash and negligent driving by the driver of offending vehicle in question, vehicle No. AS (Bajaj Discover)? (ii) Whether the claimant is entitled to get compensation? If so, what should be the quantum of the compensation? (iii) Who should be liable to pay the compensation? Discussion, Decision & Reasons thereof 7. In this claim case, the claimant has examined himself as PW-1 and produced a number of documents in support of his claim. The claimant has examined Dr. A. K. Phukan as PW-2. They are duly cross-examined by the opposite parties. The documents exhibited by the claimant are marked as Ext. 1 to Ext I have considered the materials on record carefully and heard argument of both sides. My issue wise discussions and findings thereon are as follows : 9. Issue No. 1 :- Claimant Md. Billal Ali, as PW-1, has stated that he has filed this claim petition for himself with a prayer to grant compensation for the

3 injury sustained in a motor accident on at about 4 P.M. at Barbhugia under Mikirbheta P.S. while he was coming from Jaluguti to Nagaon. All on a sudden, the Bajaj Discover bearing registration No. AS turned over by the side of the road due to rash and negligent driving of the driver, as a result, the claimant sustained multiple grievous injury on his body. He was taken to G. D. Nursing Home and Popular Nursing Home, Patna for treatment, where he took treatment from to He is the sole bread earner of his family and due to injury, he is not yet able to resume his normal duties. At the time of accident, he was 50 years of age and earned Rs. 8,000/ per month. 10. PW-1 submitted a number of documents in support his claim for compensation. Out of those documents, Ext. 1 is the accident information report of Jaluguti P.P.. On careful scrutiny of Ext. 1, it is found that vide Jaluguti P.P. G.D. Entry No. 150 dated , vehicle No. AS (Bajaj Discover) was involved in a road accident that took place at Borbhugia, under Mikirbheta P.S. at 4 P.M. on At the relevant point of time, the vehicle was driven by the owner cum driver Md. Ashif Ahmed, son of Late Abdul Hoque of village Majorbori, Mikirbheta P.S., Morigaon and the vehicle was insured with United India Insurance Co. Ltd. Jagiroad Branch, Jagiroad, vide policy No /31/07/02/ Md. Billal Ali, son of Late Abed Ali of village Julagaon, P.S. Mikirbheta, sustained injury and he was removed to G. D. Nursing Home and Popular Nursing Home, Patna for treatment. 11. PW-2 Dr. Ajit Kr. Phukan stated in his evidence that on he examined Md. Billal Ali son of Late Abed Ali, 40 years old, hailing from village and P.O. Morigaon, in the district of Morigaon being a member of the Medical Board consisting of five members and on examination he has found - weakness of the right leg following fracture of lower end of the right femur due to RTA. Percentage of disability was 40%. Ext. 99 is the application for obtaining identity of disable person and Ext. 99 (1) is his signature. He has also stated that he is a general surgeon not a specialist. 12. Opposite party No. 2 denied the fact of accident on at 4 P.M. at Borbhugia under Mikirbheta P.S. As the police made General Diary entry vide Jaluguri P.P. G.D. Entry No.150 dated , so, it can safely come to the conclusion that a road accident took place on at Borbhugia under Mikirbheta P.S. at 4 P.M. due to rash and negligent driving of the driver of the offending vehicle bearing registration No. AS (Bajaj Discover). So, issue No. 1 is decided into affirmative.

4 13. Issue No. 2 :- This issue relates to entitlement of compensation by the claimant and the quantum of the compensation. On perusal of the evidence of PW-1, it transpires that the claimant sustained multiple grievous injuries on his body due to accident that took place on at Borbhugia under Mikirbheta P.S. He was taken to G. D. Nursing Home, Nagaon and Popular Nursing Home, Patna, for treatment. He stated that he was not yet recovered fully and failed to perform his normal work. PW-1 submitted some documents vide Ext. 1 to 98. Out of which, Ext. 1 is the accident information Report (Form No. 54), Ext. 2 & 3 are the discharge certificate of Popular Nursing Home, Patna. Ext. 4 to Ext. 6 are the X-Ray reports. Ext. 7 to Ext. 10 are the advice slips. Ext. 11 to Ext. 94 are the vouchers. Ext. 95 is the income certificate, issued by the Circle Officer of Morigaon Revenue circle. Ext. 96 is the village headman certificate. Ext. 97 is the permanent disablement certificate. Ext. 98 is the discharged certificate of G. D. Nursing Home, Nagaon. On perusal of said documents, particularly the Ext. 2 to Ext. 10, it appears that the documents are relating to treatment of Md. Billal Ali. Ext. 2, the discharge certificate of Popular Nursing Home, Patna, disclosed that Md. Bilal Ali was admitted on and discharged on It also contains prescription of medicines. Ext. 11 to Ext. 94 are original money receipts and vouchers for purchasing medicines and payment to Hospital and X-ray clinic amounting to Rs. 1,14, Claimant though stated in his claim petition that he is a businessman but he did not submit any document regarding his profession. 14. Opposite Party No. 2 in their written statement denied the place, date and time of accident and also specifically stated that the claimant is not entitled to any compensation as the Insurance Policy is Act Policy only and no extra premium is paid for pillion rider. In support of said plea, opposite party No. 2 examined one DW Sri Prafulla Goswami, who has submitted that Insurance Policy No /31/07/02/ issued for insuring vehicle No. AS (Motor Cycle) which is a Liability only or Act only. Ext. A is the said policy. Learned counsel for opposite party No. 2 submitted that as per Hon ble Apex Court Judgment reported in (2006) 4 SCC 404; M/S United India Insurance Co. Ltd. Vs Tilak Singh and another, it has been held that pillion rider of a Two wheel vehicle is not entitled for compensation from Insurance Company of the vehicle involved if the Insurance policy of the vehicle is a Liability only or Act only. 15. From the above evidence of the DW, it is found to be an admitted fact that the vehicle bearing registration No. AS , which was involved with the accident, is insured with M/S United India Insurance Co. Ltd. On perusal of the Ext A, it is found that there is nothing mentioned in the policy that it is a Liability

5 only or Act policy. It is specifically mentioned in the policy that Limitation as to use : The policy covers use of the vehicle for any purpose other than a) Hire or reward b) Carriage of Goods (other than samples or personal luggage) c) Organised racing d) Pace making e) Speed testing and Reliability trials f) Use in connection with Motor Trade 16. From the above discussion on the evidence of the claimant and the opposite party No. 2, it gives rise the fact that the claimant Md. Billal Ali met with an accident on at 4 P.M., while he was coming from Jaluguti towards Nagaon and the Bajaj Discover bearing registration No.AS was involved in the said accident. The accident occurred due to rash and negligent driving and as a result, the claimant sustained injuries and took treatment at G. D. Nursing Home, Nagaon and Popular Nursing Home, Patna for his injuries. Aforesaid evidence of PW-1 remained intact and cogent, as opposite party failed to rebut his evidence, which inspires confidence that the accident of the offending vehicle, took place on at about 4 P.M. at Borbhugia due to rash and negligent driving of the vehicle and the claimant sustained injury, for which he was treated at G. D. Nursing Home, Nagaon and Popular Nursing Home, Patna. Opposite party though submitted that the insurance policy of the offending vehicle bearing registration No. AS is a Liability only or Act only, but there is nothing found in the policy exhibited as Ext. A, rather from the limitation of use as mentioned in the policy is not covered the incident of accident that took place on at about 4.00 P.M. at Borbhugia, while the claimant was a pillion rider of the said offending Motor cycle. As the claimant sustained injury in a Road Traffic Accident and he had to incur expenses for treatment of his injuries, and opposite party failed to show that the pillion rider is not entitled to compensation under the insurance policy, marked as A, so, I have come to the conclusion that the claimant is entitled to get compensation. 17. Now, it is required to be decided what will be the quantum of compensation. PW-1 Md. Billal Ali in his evidence as well as in the claim petition categorically stated that he is a businessman. He though submitted Ext. 95 income certificate to show his yearly income as Rs. 92,000/- but, it failed to disclose his profession/means of livelihood. So, it becomes difficult to hold that the claimant earned Rs. 92,000/ per annum as a businessman, which also contradicted with his statement of monthly income as Rs. 8,000/. Ext. 96 is the certificate issued by

6 Gaonbura, but it failed to mention is income and way of sandle business. Ext. 97 is the identity card for Disable person, which reveals the claimant is 40% disable. Claimant took treatment at Popular Nursing Home, Patna, and Ext. 2 and Ext. 3 are Discharge certificates. On careful perusal of Discharge certificates, it is found that the doctor treated the claimant did not state that the claimant became disable after the treatment. So, Ext. 97 cannot be taken into consideration is deciding the compensation. In my considered opinion, the income of the claimant is taken as Rs. 4,500/ per month. 16. As regard expenditures incurred by the claimant, he has submitted the money receipt and vouchers that are exhibited as Ext. 11 to Ext.94 for making payment of an amount of Rs.1,14, in purchasing medicines, doing X-ray and payment to Hospital Management Society, railway fare etc. for his treatment. On perusal of said exhibits, it is found that some exhibits are not related with his actual treatment and claimant is entitled to railway fare for himself and one attendant. Ext. 16, 29, 30, 37(1), 71, 72, 72(1), 73, 73(1), 88 are found either not connected or double entry. Because, Ext. 16 is Advance details at Popular Nursing Home, which amount has been adjusted on final payment. Ext. 29 is money receipt but did not disclose any referral by doctor, Ext. 30 is the cash memo of purchasing shirt, Ext. 37(1) is the double entry of Ext. 37, Ext. 71 is money receipt of Alcare Diagnostic but no mention of referring by any doctor, similar is the case of Ext. 72, 72(1), 73, and 73(1), and Ext. 88 is the Hotel receipt, whereas claimant and one attendant stayed in hotel for which room charge has been received by Popular Nursing Home. After deducting amounts of aforesaid exhibits, it comes to Rs. 92,072/. Ext. 2 Discharge certificate reveals that claimant was admitted on and discharged on and Ext. 3 reveals that claimant was admitted on and discharged on So, to and fro railway for the claimant and one attendant will be 1460/ for visiting on and Rs. 1460/ for visiting on , which amount has been taken from the Railway ticket exhibited as Ext. 63. Claimant though submitted railway tickets and exhibited as 22, 23, 24, 63 to 68, and 94, all the said tickets cannot be considered as it does not tallied with the period of treatment of the claimant and more than one attendant. So, total railway fare expenses will be Rs. 2920/. Hence the expenditure incurred by the claimant comes to Rs. (92, ) = 94,992/. 17. In view of the above, I am of the considered opinion that the claimant is entitled to get compensation as follows : (a) Medical expenses : Rs. 94, (b) Loss of income for one month : Rs. 4, (c) Pain and suffering : Rs. 7,000.00

7 (d) Conveyance : Rs. 7, Total : Rs. 1,13, (Rupees One lakh thirteen thousand four hundred ninety two) only. Issue No. 2 is decided accordingly. 18. Issue No. 3 :- From the above discussion and the decision of Issue No. 1, we have found that the offending vehicle bearing registration No. AS (Bajaj Discover) was insured with United India Insurance Co. Ltd., the opposite party No. 2, vide policy No /31/07/02/ which was valid up to The accident was occurred on and hence the insurance of the offending vehicle was within the validity period of the insurance policy. It is pertinent to mention here that the said insurance company has not specifically denied that the offending vehicle was not insured with them. In such a situation and as the opposite party No. 2 failed to rebut the fact by cross examining the claimant, I am of the considered opinion that the opposite party No. 2, United India Insurance Co. Ltd. Jagiroad Branch, Jagiroad is liable to pay the above compensation under the law. Issue No. 3 is decided accordingly. O R D E R 19. In the light of the above discussions and the decisions arrived at, the claim of the claimant Md. Billal Ali is allowed on contest for an award of Rs. 1,13,492/ (Rupees one lakh thirteen thousand four hundred ninety two) only. It transpires from the record that the affidavit annexed with the claim petition does not bear the declaration that no other claim case is filed in any other Tribunal or Authority. So, it is directed that the claimant shall submit an Affidavit to that effect within 30 (thirty) days, from the date of this award. The opposite party No. 2, i.e. United India Insurance Co. Ltd. Jagiroad Branch, Jagiroad is directed to pay the said amount within 90 (ninety) days from the date of submission of the said Affidavit by the claimant with a simple 6% per annum w.e.f i.e. the date of filing of the case, subject to adjustment of any amount, already paid in favour of the claimant. Opposite No. 2 be informed immediately to pay the compensation, on receipt of the affidavit from the claimant as directed above. In the event of failure to pay the awarded amount within time, as directed above, an additional 9% will be levied from the date of passing this order, payable by the opposite party No. 2. Similarly, claimant cannot claim interest for the delayed period, if he submits the Affidavit after expiry of the prescribed period. Office will take note of the matter accordingly.

8 20. Send a copy of this Judgment and order to the opposite party No. 2 for doing needful at their end, in the light of the directions passed in this judgment and order. Judgment is delivered in the open Court on this 5 th day of July, 2013 under my hand and seal. Dictated and corrected by me Member, MACT Morigaon

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