IN THE COURT OF THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL ; DHEMAJI. Present : Smti R. Bora Saikia, Member, Motor Accident Claims Tribunal, Dhemaji.

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1 1 IN THE COURT OF THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL ; DHEMAJI. Present : Smti R. Bora Saikia, Member, Motor Accident Claims Tribunal, Dhemaji. M.A.C. Case No. 22/2012. (1) Smti Manju Hazarika, W/O Shri Ganesh Hazarika, (2) Shri Ganesh Hazarika, S/O Lt. Ratneswar Hazarika, Both are residents of Vill.- Santipur Kumal Gaon,, P.S. Dhemaji, Dist. Dhemaji (Assam), Claimants. -Vs- (1) Shri Rajib Kalita, S/O Shri Dimbeswar Kalita,, R/O Vill. Bishnupur, P.S. Dhemaji, Dist. Dhemaji, Assam, Owner of the offending- Vehicle bearing Regd. No. AS-22-C-1984, (2) Shri Rajen Singh, S/O Shri S. Singh, R/O Vill. Akajan, P.S. Silapathar, Dist. Dhemaji (Assam), Driver of the offending- Vehicle bearing Regd. No. AS-22-C-1984, and (3) Oriental Insurance Co. Ltd., Naharlagun, Arunachal Pradesh, Insurer of the Vehicle No. AS-22-C Opp. Parties. APPEARANCE : Shri K.C. Sonowal, Advocate : For the claimants Shri B. Gogoi, Advocate : For opp. Party No. 1 and 2. Shri P. Konch, Advocate : For the opposite Party-No. 3 Dates of recording evidence of claimant side : and Date of hearing argument : Date of judgement :

2 2 J U D G E M E N T : (1) This motor accident claim- case has arisen out of a petition u/s 166 of the Motor Vehicles Act ( M.V. Act in short) filed by Smti Manju Hazarika and Shri Ganesh Hazarika claiming compensation of Rs.4,00,000/- only from the opposite parties for the death of their daughter- Navanita Hazarika in a motor vehicle accident that took place on (2) The case of the claimants is that on at about 3.15 P.M. Their daughter- Navanita Hjazarika along with one Nilima Saikia was proceeding to attend a programme at Santipur High English School. On the public road at Santipr Majgaon under Dhemaji Police Station, one vehicle bearing Registration No.AS-22- C/1984 ( Tata Magic) knocked down their daughter from the back side. As a result, their daughter sustained injuries on her person and succumbed to the injuries on her way to hospital. Nilima Sailia also sustained injury at the time of accident. It is alleged by the claimants that the accident occurred due to rash and negligent driving of the driver of the offending vehicle bearing Registration No. AS-22- C/1984. In this connection, Dhemaji P.S. Case No. 249/2012 u/s 279/338/304(A) of IPC was registered against the driver Rajen Singh. Opp. Party No.1 is the owner and opp. Party No.3 is the insurer of the vehicle. As the accident occurred due to the fault of the driver of the offending vehicle, the claimants have prayed before the Tribunal for granting compensation from the opposite parties. (3) The opposite Parties appeared before the Tribunal and contested the case by filing their Written Statements. (4) The opposite party No. 1 and 2, in their Written Statement, jointly filed by them, denied their personal liability to pay compensation on the claim by the claimants. They denied that at the time of accident, the vehicle bearing Registration No. AS-22-C-1984 ( Tata Magic) Engine No GX VSDO342 and Chassis No.

3 3 MAT C duly insured with the Oriental Insurance Co. Ltd., Naharlagun, Arunachal Pradesh. The driver had a valid driving licence. The terms and conditions of the Insurance Policy have not been violated by the owner. Hence, they contended that if the claimants are entitled to get compensation, in that case, the Insurance Co. (opp. Party No.3) will be liable to pay the compensation. (5) The opp. Party No.3 Oriental Insurance Co. Ltd. by filing written statement stated interalia that there is no cause of action for the claim, that the claim-petition is not maintainable, that the claim -petition is highly excessive and so on. The opp. Party No.3 denied all the statements and the allegations made in the different paras of the claim-petition and contended that the Insurance Co. is not liable to pay the compensation unless it is proved that the vehicle was driven by the driver having valid driving license and the owner had all the necessary documents under the M.V. Act. (6) Upon the pleadings of the parties, the following Issues were framed for just decision of the case - I S S U E S : (1) Whether on at about 3.30 P.M. Navanita Hazarika sustained injury in a motor vehicle accident and later on she died on the way to Hospital? (2) Whether the accident occurred due to rash and negligent driving of the driver of the vehicle bearing Registration No. AS-22-C/1984? (3)Whether the claimants are entitled to get compensation? If so, from whom and to what extent? (7) During inquiry, claimant side examined 3 witnesses and exhibited 9 documents. The opposite parties declined to adduce any evidence. (8) I have heard argument advanced by the learned Counsel for both sides and carefully scrutinize the evidence on record. Issue-

4 4 wise my decision is as follows. (9) I s s u e Nos.1 and 2 : For the sake of my convenience and brevity, I have taken Issue Nos- 1 and 2 together for decsion. The claimant- Smti Manju Hazarika adduced evidence in support of her claim-petition as P.W.1. In her evidence she stated that on at about 3.30 P.M. She was informed by one Laba Bora that her daughter-navanita was knocked down by a vehicle near Santipur Tiniali. Then she rushed to the place of occurrence and found her daughter at injured condition. She noticed one vehicle bearing Registration No., AS-22-C/1984 (Tata Magic) lying by the side of the road and came to know that the said vehicle caused the accident. Further, PW1 stated that one Smti Nilima Saikia also sustained injury at the time of accident. Her daughter-navanita Hazarika and Nilima Saikia were brought to Dhemaji Town for treatment. But her daughter-navanita Hazarika succumbed to the injuries on the way. She came to know that at the time of accident the offending vehicle was driven by the opposite party No.2 and the opp. Party No.1 was the owner of the vehicle. In cross-examination, PW1 denied the suggestion that the accident took place due to the fault of her daughter (deceased). (10) PW2 Shri Ganesh Hazarika stated that on at about 3.30 P.M. Receiving information about the accident from his brother-in-law Krishna Saikia of his mobile phone, he rushed to the place of occurrence but, his daughter was already removed to Hospital. He noticed one Tata Magic vehicle bearing Registration No.AS-22-C/1984 lying by the side of the road and came to know from one Phatik Saikia that the said vehicle involved in the accident. Owner of the vehicle was Rajib Kalita of Bishnupur Village. From the place of occurrence he came to Dhemaji Town and found his daughter lying dead at Care Nursing Home, Dhemaji. He lodged an ejahar before Dhemaji Police Station. He proved the Accident Information Report as Ext-1, the FIR as Ext-2, certified copy of ejahar as Ext-3.

5 5 Post Mortem Examination Report as Ext-4, Birth Certificate of deceased-navanita Hazarika as Ext-5, School Certificate of the deceased-navanita as Ext-6, Progress Report as Ext-7 and other certificates as Ext- 8 and 9. In cross-examination PW2 admitted that he did not witness the accident. (11) PW3 Smti Nilima Saikia stated that on the fateful day at about 3.30 P.M. she along with Navanita Hazarika was proceeding towards Santipur High School to attend a programme. On the way, one Tata Magic vehicle coming in excessive speed, knocked down them from back side. AS a result, she and Navanita (deceased) sustained injuries on their person. They were removed to Hospital for treatment but, Navanita Hazarika died due to the injuries sustained by her. She is still undergoing treatment. Further, she stated that the accident took place due to rash and negligent driving of the vehicle by the driver. In cross-examination PW3 denied the suggestion that the accident took place due to their fault. (12) Above is the evidence available in the record. On careful scrutiny of the evidence on record, it reveals that Pws- 1 and 2 were not eye-witnesses of the accident. PW3 is the only eye-witness of the occurrence who specifically stated that the accident took place due to the fault of the driver of the offending Tata Magis Vehicle. By crossexamining this witness, the opp. Party carried nothing to discard her testimony. The opposite party did not adduce any evidence in rebuttal of the evidence of PW3. The Accident Information Report (Form-54), Ext-1 shows that a case being Dhemaji P.S. Case No.249/2012 u/s 279/338/304(A) of IPC was registered regarding involvement of the vehicle bearing Registration No.AS-22-C/1984 (Tata Magic) in the accident and Navanita Hazarika was shown as the person died in the accident, Smti Nilima Saikia was shown as the person sustained injury. Ext-2, certified copy of FIR shows that a case was registered against the driver of the vehicle, Rajen Singh on the strength of an

6 6 ejahar lodged by Shri Ganesh Hazarika. (13) Considering the oral evidence and the documentary evidence on record, it can safely be concluded that the accident took place due to rash and negligent driving of the driver of the offending vehicle. The Post Mortem Examination Report, Ext-4 established the death of the deceased-navanita Hazartika due to the injuries sustained by her in the motor vehicular accidenty on In view of the above, Issue Nos-1 and 2 are answered in the affirmative in favour of the claimants. (14) I s s u e No.3 In view of my discussion and secision in IssueNo.1 and 2, the claimants are entitled to get compensation under the provision of section 166 of the Motor Vehicles Act. (15) Now, the prime question is what would be the just and reasonable compensation in the case in hand. For assessing compensation, the claimants are required to establish the age and income of the deceased. Now, so far the age of the deceased is concerned, the claimants in their evidence stated that at the time of accident their daughter was aged 11 years 6 months. In support of the above claim, the claimant-pw2 proved the Birth Certificate of the deceased as Ext-5 in which date of birth was shown as Thus, it appears that on the date of accident deceased- Navanita Hazarika was 11 years 6 months 7 days old. Considering the oral evidence of the claimants and the documentary evidence marked as Ext-5, it can safely be held that on the date of accident, the age of the deceased was 11 years 6 months 7 days. (16) So far the income of the deceased is concerned, it is an admitted fact that at the time of accident the deceased was a student of Class-VI and she has no income of her own. Hence, court has to adopt the principle of Notional Income of non-earning person. (17) So far the multiplier adopted is concern, the ratio in Sarla Verma and others -vs- Delhi Transport Corporation and

7 7 another reported in (2009) 6 SCC-121, laid down that it will be on the basis of the age of the deceased and not on the basis of the age of dependency. The operative part of the judgment reads as follows :- (18) The selection of multiplier is based on the basis of the age of the deceased and not on the basis of the age of dependent. There may be a number of dependents of the deceased, whose age may be different and, therefore, the age of dependents has no nexus with the computation of compensation. (19) As per table of multiplier shown in Sarla Verma's case, as the deceased was 11 years 6 months, the multiplier will be (20) Now, the question is whether any deduction should be done from the notional income towards self maintenance of the deceased who had actually no income. In the case of Smti Puja Sarkar and another Vs. Oriental Insurance Co. Ltd and others reported in 2013 (2) GLD 362 (Gau), the Hon'ble High Court held that deduction towards self maintenance of the minor is illegal. On the basis of the law laid down the Hon'ble High Court, nothing should be deducted on notional income towards personal expenses of the deceased-minor girl who had no income while calculating compensation. (21) Apart from the compensation to be awarded as above, I feel it necessary for granting a lump sum amount for future prospect, some amount for funeral expenses and other incidental accident, and some amount for love and affection. Thus having considered the facts and circumstances of the case, just and reasonable compensation to the claimants in the case in hand is assessed as under : (1) Loss of dependency... (15000 x 15) = Rs.2,25, (2) Funeral Expenses Rs. 7, (3) Future Prospects Rs. 15, (4) Love & affection..... Rs. 5, Total Rs. 2,52,000.00

8 8 (22) The offending vehicle (Tata Magic) bearing Registration No. AS-22-C-1984 was insured with the opp. Party No.3, Oriental Insurance Co. Ltd. The driver had a valid Driving License and the owner had not violated the terms and conditions of the Insurance Policy. Hence, opp. Party No.3 -Oriental Insurance Co. Ltd. is liable to pay the compensation to the claimants. Issue No. 3 is decided accordingly. (23) O R D E R : In the result, claim-petition is allowed on contest. Claimants are awarded compensation of an amount of Rs.2,52,000/- (Rupees two lakhs fifty two thousand ) only. The opposite party No.3, Oriental Insurance Co. Ltd. is directed to deposit the above amount to the claimants within 60 days from today i.e , failing which the opposite party-insurance Co. shall be liable to pay 9% p.a. from the date of filing of the claim petition till the date of realization of the entire amount. (24) Let a copy of the judgment be furnished to the opposite party-oriental Insurance Company Ltd. for information and necessary action. (25) Given under my hand and seal of this court on this the 12 th day of December/2014. (R. Bora Saikia ) Member, Motor Accident Claims Tribunal, Dhemaji. Transcribed & typed by me:- ( B.K. Buragohain, Steno.)

9 9 M.A.C.T. Case No.22/ Claimants and the opposite parties are represented by the learned Advocates. Judgment prepared in separate sheets, is pronounced and delivered in open Court. The claim-petition is allowed on contest. An amount of Rs.2,52,000/- (Rupees two lakhs fifty two thousand ) only is awarded as just compensation to the claimants. The opposite party, Oriental Insurance Co. Ltd. is directed to deposit the awarded amount in favour of the claimants within 60 days from today i.e failing which the opposite party-insurance Co. shall be liable to pay 9% p.a. from the date of filing of the claim petition till the date of realization of the entire amount. Let a copy of the judgment be furnished to the opposite party-oriental Insurance Company for information and necessary action. Member, Motor Accident Claims Tribunal, Dhemaji.

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