BEFORE THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL : : TINSUKIA : : ASSAM. Member, Motor Accident Claims Tribunal, M.A.C.T. Case No.

Transcription

1 BEFORE THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL : : TINSUKIA : : ASSAM District: Present: Smti A. Devee, Member, Motor Accident Claims Tribunal, M.A.C.T. Case No. 66 of 2007 Smti Godhani Devi, W/o Sri Nathani Ram, R/o Makum Habeda, Sundar Nagar, P.S. Makum, District: (Assam) Claimant - Versus - 1. Sri Nabajyoti Konwar, S/o Sri Chandra Kt. Konwar, R/o Gorpara Konwar Gaon, P.S. Rowmoria, District: Dibrugarh (Assam) 2. The Oriental Insurance Co. Limited, Thana Road, P.O., P.S. & Dist: (Assam) Opposite Parties 3. Sri Nathani Ram, S/o Late Jagmohan Ram, R/o Makum Habeda, Sundar Nagar, P.S. Makum, District: (Assam) Proforma Opposite Party Appearance: Sri N. Prasad, Advocate.For the Claimant Sri B.J. Kakoty, Advocate.For the O.P. No. 2 Date of Argument: Date of Judgment:

2 J U D G M E N T This is a motor accident claim case arising out of a petition filed by Smti Godhani Devi, aged 62 years, wife of Sri Nathani Ram of Makum Habeda, Sundar Nagar under Makum Police Station in the district of for compensation of Rs.12,75,000/- for the death of her son Sri Nagendra Ram in a motor vehicle accident that occurred on at about P.M. on National Highway in front of New Railway Station, as a result of rash and negligent driving of the rider of the motor cycle bearing registration No.AS-23-A It is stated by the claimant that at the relevant time the deceased was proceeding towards Gargo Motors from his residence through National Highway No.37. Suddenly the motor cycle knocked him down from back side. As a result of which he died on the spot. According to the claimant, at the time of his death the deceased was a private employee of one Sri Suresh Singh, a property dealer and his monthly income was Rs.8000/-. In connection with the said accident, P.S. case No.296/06 u/s.279/304-a I.P.C. was registered against Sri Nabajyoti Konwar. Therefore, the claimant being the mother and dependent on the deceased filed the instant claim petition. The claimant has made the owner cum rider and insurer of the motor cycle as opposite party No.1 and 2 respectively. She also made the father of the deceased, who happens to be her husband as proforma opposite party. 2. The opposite party No.1 owner cum rider of the motor cycle in his written statement categorically denied involvement of vehicle No.AS- 23-A-6131 (Yamaha RX) and prayed to dismiss the claim petition against him. 3. On the other hand, the opposite party No.2 Oriental Insurance Company Limited in their written statement stated that the claim petition is not maintainable for suppression of material facts and non-disclosure of cause of action against the insurance company inasmuch as the offending vehicle was not insured with them. Claiming that the claimant is to prove her claim by adducing evidence, the opposite party insurance company also prayed to dismiss the claim petition. 4. Upon the above pleadings, the following issues were framed (i) Whether a motor vehicle accident took place on involving vehicle No.AS-23-A-6131 (Yamaha RX)? (ii) (iii) Whether the deceased (claimant s son) died in the accident? Is the claimant entitled to compensation? If so, to what extent and from whom? 5. In support of her case the claimant examined herself as witness. The contesting opposite party insurance company preferred to crossexamine the claimant but declined to adduce any evidence on their 2

3 behalf. It is to be mentioned here that after filing written statement the opposite party No.1 failed to take part in the hearing. 6. Heard argument being advanced by Sri N. Prasad, learned counsel appearing for the claimant. Sri B.J. Kakoty, learned counsel appearing for the insurance company has submitted written argument. I have gone through the materials on record and the written argument submitted by learned counsel Sri Kakoty. 7. My decision with discussion on the issues are discussed as follows- Issue No.1 & 2 :- Since both these issues are inter related, so these issues are taken up together for decision. The claimant in support of her case that her son Nagendra Das died in a road accident on caused by vehicle No.AS-23-A-6131 (Yamaha RX) has produced certified copy of written ejahar lodged by one Sri Lal Mohan Das with the Officer-in-Charge, Police Station, certified copy of seizure list, charge-sheet submitted against Sri Nabajyoti Konwar, rough sketch map of the place of occurrence and certified copy of post mortem examination report of Nagendra Das. The contesting opposite party did not raise any objection against the said documents. On a simple scrutiny of the documents, it is found that Nagendra Das, son of Nathani Das died on at about P.M. while he was proceeding towards his temporary residence near Gargo Motors, Hijuguri under Police Station after being knocked down by a motor cycle bearing registration No.AS-23-A-6131 (Yamaha RX) driven by Sri Nabajyoti Konwar in a very rash and negligent manner. The police in connection with the said accident registered P.S. Case No.296/06 u/s.279/304-a I.P.C. against Sri Nabajyoti Konwar, owner cum rider of the motor cycle and the police after completion of the investigation submitted charge-sheet against him for his trial u/s.279/304-a I.P.C. Since the said documents remained unchallenged and in absence of any material for raising doubt against the said documents, both the issue No.1 and 2 are decided in the affirmative, i.e. in favour of the claimant. 8. Issue No.3 :- The claimant in support of income of her deceased son stated that her son, aged about 45 years was a permanent employee of one Sri Suresh Singh, son of Kamal Singh of Chirwapatty,. Her deceased son was looking after the business of Suresh Singh, who is a property dealer, at a monthly remuneration of Rs.8000/-, exclusive of food and other allowances. In support of her such evidence, she filed one certificate issued by Suresh Singh but she failed to examine said Suresh Singh in support of her case as to income of her deceased son. In absence of any supporting evidence and as the contesting opposite party insurance company failed to submit any report as to income of the deceased, so in the light of decision, reported in 2011 (5) Gauhati Law Journal 65 (Jagadish Prasad Agarwalla Vs Upendra Singh & Others), 3

4 I am of the opinion that interest of justice would meet, if the income of the deceased is taken as Rs.3000/- per month Rs.100/- per day. In the said decision the Hon ble High Court has referred the decision of the Hon ble Apex Court in Laxmi Devi Vs Tabbar, 2008 (2) TAC 394 (SC). In support of age of the deceased, the claimant side has placed reliance on the post mortem examination report, wherein the age of the deceased is recorded as 45 years. Regarding age also the opposite party insurance company has not raised any objection. The claimant-mother is aged about 62 years. Admittedly the deceased was a bachelor. Therefore, applying Sarla Verma s case appropriate multiplier in this case would be 5. Thus amount of compensation is computed as under- Monthly income of the deceased - Rs.3,000/- Loss of yearly dependency deducting ½ of the Yearly income, comes to Rs.3000 X ½ X 12 - Rs.18,000/- Loss of total dependency Rs X 5 - Rs.90,000/- In addition to the aforesaid amount of Rs.90,000/- the claimant would get Rs.5000/- as funeral expenses and Rs.5000/- for loss of love and affection. Thus, the claimant is entitled to get Rs.1,00,000/- (Rupees One Lakh) in total. 9. Now, it is to be ascertained who would pay the amount of compensation. Learned advocate appearing for the opposite party insurance company by producing insurance policy of offending vehicle categorically submitted that at the relevant time the policy for the offending vehicle was not in the name of Sri Nabajyoti Konwar, but said policy stands in the name of one Sri Abhijit Das. Therefore, the case is liable to be dismissed against the opposite party, inasmuch as the insurance company is not liable to pay any compensation for Sri Nabajyoti Konwar with whom the company had no contract. Therefore, Sri Nabajyoti Konwar is not entitled to get any benefit under the said policy. Learned counsel Sri Kakoty has also contended that since the claimant failed to file Form No.54 which is mandatory as per provisions of Motor Vehicles Act, the claim petition is liable to be rejected summarily. 10. Countering the contentions raised by the learned counsel Sri Kakoty, Sri N. Prasad, learned counsel for the claimant relying on a decision of Hon ble Calcutta High Court, reported in 2011(4) T.A.C. 103 (Cal.) submitted that u/s.158(6) of the Motor Vehicles Act, it is the duty of the Officer-in-Charge of a police station to furnish Accident Information Report in Form No.54 within 30 days of road accident. The object of the Section is to find out false and frivolous claims. 11. Here in the instant case, according to the learned counsel Sri Prasad, the Officer-in-Charge of Police Station failed to forward Accident Information Report to the Tribunal. For nonperformance of mandatory duty by the Officer-in-Charge the claimant cannot be debarred from claiming her legitimate right. He has also 4

5 submitted that the claimant has produced certified copy of post mortem report in connection with P.S. G.D. Entry No.579 dated , certified copy of FIR, written ejahar in connection with P.S. case No.296/06 corresponding to G.R. Case No.608/06 u/s.279/304-a I.P.C. which was registered in connection with death of Nagendra Das, son of Nathani Das in a road accident that occurred on on National Highway No.37, within the jurisdiction of Police Station involving motorcycle bearing registration No.AS-23-A I have gone through the said documents and provisions of Section 158(6) of the Act and also perused the decision of the Hon ble Calcutta High court. 12. Sub-section (6) to Section 158 provides that as soon as any information regarding any accident involving death or bodily injury to any person is recorded or report under this section is completed by a police officer, the officer-in-charge of the police station shall forward a copy of the same within thirty days from the date of recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and insurer. 13. In view of the mandatory provisions which cast duty on the Officer-in-Charge of a Police Station, the insurance company is not at all entitled to take the plea of non-maintainability of the claim petition for non-submission of Accident Information Report. In the result, the objection raise by learned counsel Sri Kakoty is not sustainable. 14. Regarding non-joinder of owner Sri Abhijit Das of the offending vehicle in whose name the insurance policy in respect of vehicle No.AS- 23-A-6131 was issued for the period to learned advocate Sri Prasad has submitted that the previous owner Sri Abhijit Das sold his motor cycle bearing registration No.AS-23-A-6131 to Sri Nabajyoti Konwar by executing a document. The learned counsel has drawn my attention to the decision of the Hon ble Apex Court reported in AIR 2006 SC 1576 (United India Insurance Company Vs Tilok Singh and others) and submitted that under section 157 of the M.V. Act, it is the duty of the transferor with whom insurer had contract to inform about the transfer. The provision is enacted to protect a third party. For failure of the transferor to inform about the transfer, the insurer s liability does not cease. 15. I have gone through the said decision and the insurance policy submitted in this case. The opposite party insurance company along with the copy of policy submitted a copy of Kacha Sale deed. As per sale document, Sri Abhijit Das, son of Late Anil Chandra Das of Sripuria sold his motor cycle bearing registration No.AS-23-A-6131 to 5

6 Sri Nabajyoti Konwar, son of Chandra Kt. Konwar of Garpara Konwar Gaon. On the other hand, the insurance policy shows that the same is for the vehicle No.AS-23-A-6131w.e.f to The accident occurred on In the light of the above referred decision of the Hon ble Apex Court in which the Hon ble Apex Court has referred several decisions on the subject of third party s interest rendered by it earlier, I am of the opinion that in the instant case the opposite party insurance company is liable to make payment of the compensation amount. 17. The opposite party insurance company along with written argument submitted a copy of Driving Licence verification report submitted by one surveyor Sri Ashok Kumar Dey. As per said copy of report, the Driving Licence of Sri Najabyioti Konwar, on enquiry, was found to be not a genuine one. As per office records of the office of the D.T.O., Lakhimpur, the Driving Licence No.NT/30323/NLP/04 was issued in the name of one Smti Binita Devi of Soladhara, Jorhat. Except the said copy of report the opposite party insurance company has produced nothing. 18. On the other hand, even if the Driving Licence of Sri Nabajyoti Konwar is found to be not genuine, then also the insurance company is to make payment first with liberty to receive the amount from ownercum-rider of the offending motor cycle. O R D E R Considering the entire facts, discussed above and conduct of the claimant during trial, which attributed delay in disposal of the case, the opposite party/insurance company is directed to pay the amount of Rs.1,00,000/- (Rupees One Lakh) within one month from the date of this judgment and order with 6% per annum from the date of filing claim petition till and from till full and final recovery. Given under my hand & seal of this Tribunal on this the 11 th of April, day Dictated & corrected by me. Member M.A.C. Tribunal (A. Devee) Member M.A.C. Tribunal 6

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