M.A.C. Case No.40/2010 Present:-Sri M.U. Laskar, Member, M.A.C.T., Sivasagar.

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1 IN THE MOTOR ACCIDENT CLAIMS TRIBUNAL:: SIVASAGAR M.A.C. Case No.40/2010 Present:-Sri M.U. Laskar, Member, M.A.C.T., Sivasagar. Smti. Pronika Mili and ano.... Claimants. Vs. 1) Smti. Rupali Saikia, (Owner of vehicle No.AS-04/G-1076) 2) Sri Dipankar Handique, (Driver of vehicle No.AS-04/G-1076) 3) Oriental Insurance Co. Ltd., Gar Ali, Jorhat. (Insurer of vehicle No.AS-04/G-1076) For the claimants:-... Sri Bikash Dey, Advocate. For the O. P. No.1... Sri A. Gogoi, Advocate. For the O.P. No Sri G. Neog, Advocate. For the O.P. No.3... Sri N. Ahmed, Advocate Argument heard on Judgment pronounced on J U D G M E N T 1. This claim case has been filed by Smti Pronika Mili claiming compensation for her and for her minor daughter Smti Monalisha Mili u/s.166 of M.V. Act for the death of her husband Sarat Singh Mili in the motor vehicular accident. Contd. in page 2

2 (2) 2. The claim petition in brief is that on at about 11:30 a.m. when Sarat Singh Mili was proceeding towards Sivasagar town on the National Highway-37 by his bicycle, then vehicle under registration No.AS-04/G-1076(Tata Magic) which was coming from opposite direction in a rash and negligent manner had dashed the bicycle of Sarat Singh Mili near Bikrampur Chariali causing him grievous injuries. The injured Sarat Singh Mili was immediately taken to Progoti Hospital, Sivasagar and admitted there but he succumbed to his injuries there on the same day at 1:45 p.m. It is stated that the accident took place due to rash and negligent driving of vehicle No No.AS-04/G-1076(Tata Magic). The age of deceased Sarat Singh Mili was about 29 years. He was a wholesale businessman of fish and a cultivator with monthly income of about Rs.10,000/-. The offending vehicle No.AS-04/G-1076(Tata Magic) was insured with O.P.No.3, the Oriental Insurance Co. Ltd with valid insurance policy No /31/2010/9520, valid upto Hence, this claim case has been filed for getting compensation of Rs.14,49,000/-. 3. The case has been contested by the Opposite Parties. O. P. No.1 and O.P. No.2, i.e., owner and Driver of vehicle No.AS-04/G- 1076(Tata Magic), respectively in their W/S have stated inter alia that the accident took place due to fault of the person concerned who was crossing the road suddenly. It is stated that at the time of accident, the said vehicle was under coverage of insurance policy and O.P. No.2 had valid driving licence and as such, O.P. No.1 and 2 are not liable to pay any compensation to the claimant. Contd. in page 3

3 (3) 4. O.P. No.3, the Oriental Insurance Co Ltd. in the W.S. has stated inter alia that the case is not maintainable in its present form and manner and denied the averments made in the claim petition. It is prayed to dismiss the claim case against O.P. No From the pleadings, the following issues have been framed for right decision of the case:- 1) Whether a vehicular accident took place at Bikrampur Chariali, Sivasagar, involving vehicle No.AS-04/G- 1076(Tata Magic)? 2) Whether the accident took place due to rash and negligent driving of the vehicle? 3) Whether the husband of the claimant Late Sarat Singh Mili died in the accident, caused by vehicle No.AS-04/G- 1076(Tata Magic)? 4) Whether the claimants are entitled to any compensation? If so, from whom and to what extent? 6. In this case claimant has examined herself as C.W. 1 and two more witness as C.W.2 and C.W.3 and exhibited some documents. O.P./Insurance Company has examined one witness and exhibited some documents. I have heard argument advanced by the learned counsels of both sides. Learned counsel for the claimant in his Contd. in page 4

4 (4) submission has referred the following citations in support of his argument :- a) Saurav Jyoti Barman Vs- Parikshit Haloi and ano. 2009(2) GLJ 559 b) Kusum Lata & Ors. Vs- Sarbir and Ors. AIR 2011 SC 1234 c) State of Mizoram & Ano Vs- K. Lalngilneia & Anr (1) GLT 152 Learned counsel for O.P. No.3 in his submission has referred the following citations :- a) Oriental Insurance Co. Ltd. Vs- Kitbokson War & Ors (2) GLJ 230 b) National Insurance Co. Ltd. Vs- Ismaeli & Ano (1) GLJ 240 c) National Insurance Co. Vs- Challa Bharathamma (1) TAC 4 SC I have gone through the evidence on record, the exhibited documents and considered the submissions of the learned counsels of both sides and the citations referred by them to decide the case. Discussion, decision and reasons thereof:- Issue No.1, 2 and 3 :- 7. For the sake of convenience, I have taken up the Issue No.1, 2 and 3 together for discussion and decision. Going through the evidence of C.W.1 Smti Pronika Mili, C.W.2 Sri Lakhinath Mili and C.W.3 Sri Montu Panging., it is found that on at about 11:30 a.m. when Sarat Singh Mili was proceeding towards Sivasagar Contd. in page 5

5 (5) town on the National Highway-37 by his bicycle, then vehicle under registration No.AS-04/G-1076(Tata Magic) which was coming from opposite direction in a rash and negligent manner had dashed the bicycle of Sarat Singh Mili near Bikrampur Chariali causing him grievous injuries. The injured Sarat Singh Mili was immediately taken to Progoti Hospital, Sivasagar and admitted there. He succumbed to his injuries there in the hospital on the same day at about 1:45 p.m. It is stated that the accident took place due to rash and negligent driving of vehicle No.AS-04/G-1076(Tata Magic) by the driver concerned. 8. I have carefully gone through the evidence on record and the exhibited documents which are from Ext.1 to Ext.12. Ext.4 is the postmortem report of the deceased Sarat Singh Mili. As per the postmortem report, the age of deceased Sarat Singh Mili was above 35 years. 9. There is nothing to disbelieve the evidence on record and the exhibited documents. Thus, considering the evidence of C.W.1, C.W.2 and C.W.3 and the exhibited documents, I am of the considered view that there is cause of action for this claim case and the accident took place on at about 11:30 a.m., at Bikrampur Chariali due to rash and negligent driving of vehicle No.AS-04/G-1076(Tata Magic) causing grievous injuries to Sarat Singh Mili who died in the hospital on the same day. The issues are found in favour of the claimants and as such, the said issues are decided in affirmative i.e. in favour of the claimant. Contd. in page 6

6 (6) Issue No.4 :- 10. As per the evidence of C.W.1, Smti Pronika Mili, C.W.2 Sri Lakhinath Mili and C.W.3 Sri Montu Panging, deceased Sarat Singh Mili was a fish businessman. He was also a cultivator. He was earning about Rs.10,000/- per month. Ext.12 certificate was issued by the Secretary of Fishery Society that deceased Sarat Singh was a businessman of fish. Ext.13 Certificate was issued by President of Panbecha Gaon Panchayat to the effect that deceased Sarat Singh Mili had his monthly income of Rs.10,000/-. The person concerned who issued the certificates were not examined as witnesses to prove the said certificates. 11. In my considered opinion, claimant has failed to substantiate properly by proper evidence that deceased Sarat Singh Mili was earning about Rs.10,000/- per month from his business and cultivation. Considering the evidence on record and submission of learned counsels of both sides, I have reasonably considered an amount of Rs.4,500/- as monthly income of deceased Sarat Singh Mili, considering minimum daily income of Rs.150/- from his business. 12. This claim case has been filed by the claimant Smti. Pranika Mili claiming compensation for her and for her minor daughter for the death of her husband Sarat Singh Mili. I have gone through the structure formula given in the Second Schedule of M.V. Act,1988 and the guiding principle for computation of compensation in death case due to motor vehicular accident as laid down by Hon ble Supreme Court in the case of Smti. Sarla Verma & Ors. -Vs- Delhi Transport Contd. in page.7

7 (7) Corporation, reported in 2009 (2) TAC 677 SC (AIR 2009 SC 3104). In my considered opinion, there will be deduction of 1/3 of income of deceased Sarat Singh Mili towards his personal expenses. The monthly income of deceased Sarat Singh Mili has been assessed at Rs.4,500/- and after deduction of 1/3 towards his personal expenses, Rs.3,000/- comes as his net monthly income for the purpose of calculation of amount of compensation in this case. The age of deceased Sarat Singh Mili was 35 years as per Ext.4, post mortem report. As per Ext.8, Admit Card of Board of Secondary Education, Assam, the date of birth of Sarat Singh Mili was on The date of occurrence was on and as such, as per Ext.8, Admit Card, his age was above 29 years on I have considered here multiplier 16 for the purpose of calculation of the amount of compensation. Thus, the total amount comes to Rs.3,000/- X 12 X 16 = 5,76,000/-. Along with this, Rs.2,000/- as funeral expenses and Rs.5,000/- as the amount for loss of estate and love and affection are added and thus the total amount comes to Rs.5,76,000/- + Rs. 2,000/- + Rs.5,000/- = Rs.5,83,000/-, which is accessed here as just and reasonable amount of compensation. 14. It is found from the record and the copy of insurance policy No. No /31/2010/9520 that vehicle No.AS-04/G-1076(Tata Magic) was insured with O.P. No.3, the Oriental Insurance Co. Ltd. from the period to The accident took place on It means that, the said vehicle was under coverage of Insurance Policy by O. P. No.3, the Oriental Insurance Co. Ltd. on the date of accident. Contd. in page 8

8 (8) 15. The plea of O.P. No.3, the Oriental Insurance Co. Ltd. is that on the date of accident, the driver of vehicle No.AS-04/G- 1076(Tata Magic) had no valid driving licence and as such O.P. No.3 is not liable to pay any compensation to the claimant. O.P. No.3 has examined one D.W. who is Sri Dibakar Sarma, the Branch Manager of Oriental Insurance Co. Ltd., Sivasagar Branch. He has exhibited Ext.A and Ext.B letters. Ext. A is the report of Investigator and Ext.B is the letter of D.T.O., Dibrugarh, addressed to Branch Manager, Oriental Insurance Co. Ltd., Sivasagar Branch. I have gone through the evidence of D.W.1 and Ext.A and Ext. B letters. As per the evidence of D.W.1 and Ext.A and Ext.B letters, the Driving Licence of the driver of the vehicle which met with an accident on was not genuine. 16. Law is well settled in respect of provision of section 149(2) (a) (ii) of M. V. Act 1988 and the liability of Insurance Company. In this respect, I refer below the citation National Insurance Co. Ltd. Vs- Swaran Singh and Ors. reported in (2004) 3 SCC 297 (AIR 2004 SC 1531) :- Para The summery of our findings to the various issues as raised in these petitions are as follows :- (i) Chapter IX of the Motor Vehicle Act, 1988 providing compulsory Insurance of Vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory Insurance coverage of all vehicles are with this Contd. in page..9

9 (9) paramount object and the provision of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed U/S 163 A or Section 166 of the Motor Vehicle Act, 1988 inter-alia in terms of section 149(2) (a)(ii) of the said Act. (iii) The breach of policy condition, e.g. disqualification of driver or invalid driving licence of the driver, as contained in Sub- Section (2) (a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the conditions of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time, (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish breach on the part of the owner of the vehicle; the burden of proof where for would be on them. (v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would depend upon the facts and circumstances of each case. Contd. in page..10

10 (10) (vi) Even where the insurer is able to prove breach on the part of the insured concerning the policy condition regarding holding of a valid licence by the driver or his qualification to drive during the relevant period, the insurer would not be allowed to avoid its liability towards insured unless the said breach or breaches on the condition of driving licence is /are so fundamental as are found to have contributed to the cause of the accident. The Tribunals in interpreting the policy conditions would apply the rule of main purpose and the concept of fundamental breach to allow defences available to the insured under section 149(2) of the Act. (vii) The question as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfil the requirements of law or not will have to be determined in each case. (viii) If a vehicle at the time of accident was driven by a person having a learner s licence, the insurance companies would be liable to satisfy the decree. (ix) The claims tribunal constituted under section 165 read with Section 168 is empowered to adjudicate all claims in respect of the accidents involving death or of bodily injury or damage to property of third party arising in use of motor vehicle. The said power of tribunal is not restricted to decide the claims inter se between claimant or claimants on one side and insured, insurer and driver on the other. In the course of adjudicating the claim for Contd. in page..11

11 (11) compensation and to decide the availability of defence or defences to the insurer, the Tribunal has necessarily the power and jurisdiction to decide disputes inter se between insurer and the insured. The decision rendered on the claims and disputes inter se between the insurer and insured in the course of adjudication of claim for compensation by the claimants and award made thereon is enforceable and executable in the same manner as provided in Section 174 of the Act for enforcement and execution of the award in favour of the claimants. (x) Whereon adjudication of the claim under the Act the tribunal arrives at a conclusion that the insurer has satisfactorily proved its defence in accordance with the provisions of Section 149(2) read with Sub-section (7), as interpreted by this court above, the Tribunal can direct that the insurer is liable to be reimbursed by the insured for the compensation and other amounts which it has been compelled to pay to the third party under the award of the tribunal. Such determination of claim by the tribunal will be enforceable and the money found due to the insurer from the insured will be recoverable on a certificate issued by the tribunal to the collector in the same manner under Section 174 of the Act as arrears of land revenue. The certificate will be issued for the recovery as arrears of land revenue only if, as required by Subsection (3) of the Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the tribunal. Contd. in page 12

12 (12) (xi) The provisions contained in Sub-section (4) with provisio thereunder and Sub-Section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover amount paid under the contract of insurance on behalf of the insured can be taken recourse of by the Tribunal and be extended to claims and defences of insurer against insured by, relegating them to the remedy before, regular court in cases whereon given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims. 17. It is found from the above guiding principles as laid down by the Hon ble Supreme Court in the case of Saran Singh ( Supra)that mere absence, fake or invalid driving licence or disqualification of the driver for driving the vehicle at the relevant time are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicle by duly licensed driver or one who was not disqualified to drive at the relevant time. The insurance company must also establish the breach of the policy condition on the part of the owner of the vehicle. But in the instant case, it is found that O.P. No.3, the Oriental Insurance Co. Ltd. has failed to substantiate the above essential conditions. It is found that the insurer O.P. No.3 has failed to prove satisfactorily its defence(s) in accordance with the provision of Contd. in page 13

13 (13) Section 149(2) read with Sub-section (7), as interpreted by the Hon ble Apex Court in the above noted case. Hence, in my considered opinion, the plea of O.P. No.3 is not legally tenable. 18. In view of the discussions made above, it is found that O.P. No.3, the Oriental Insurance Co. Ltd. being the insurer of vehicle No.AS-04/G-1076(Tata Magic) is liable to pay just and reasonable amount of compensation of Rs.5,83,000/- with interest to the claimant. O R D E R The claimant Smti. Pronika Mili and other dependents of deceased Sarat Singh Mili, are entitle to get just and reasonable amount of compensation of Rs.5,83,000/- from O.P. No.3, the Oriental Insurance Co. Ltd. with 6% per annum from the date of filing of the claim case till realization. Payment is to be made within 2(two) months from the date of passing of the Judgment and Order. Given under my hand and seal of this Tribunal on this 20 th day of July/2011. Dictated & corrected by me. Member, Member, MACT, Sivasagar. MACT, Sivasagar.