BEFORE THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL AT JORHAT

Transcription

1 BEFORE THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL AT JORHAT Present: Mr. Vinod Kumar Chandak, M.A., M.Com., LL.B., AJS Member, Motor Accident Claims Tribunal, JORHAT. JUDGMENT IN M.A.C. CASE NO. 07 OF 2013 Smt. Dibyamai Das, Wife of Late Nobin Das, Resident of Nowsolia Gaon, P.S. Pulibar, District Jorhat... Claimant - Versus - 1). Mr. Lakhi Gogoi, Son of Late Ratna Gogoi, Resident of Karanga Jonia Gaon, P.O. Jorhat, P.S. Jorhat, District-Jorhat. [Owner of Motorcycle No. AS 03 K/6409] 2). Mr. Nayan Jyoti Gogoi, Son of Sri Lakhi Gogoi, Resident of Karanga Jonia Gaon, P.S. Jorhat, District-Jorhat. [Driver of Motorcycle No. AS 03 K/6409] 3). The Branch Manager, Oriental Insurance Company Limited, Divisional Officer, Jorhat District-Jorhat. [Insurer of Motorcycle No. AS 03 K/6409]. Opposite Parties Date of Argument : & Date of Judgment : APPEARANCES For the Claimant : Smt. Krishna Bezbaruah, Advocate For the Opposite Party : Smt. Rupali Rai Baruah, Advocate Smt. Chapala Saikia, Advocate

2 2 JUDGMENT 1). The claimant Mrs. Dibyamai Das has claimed compensation to the tune of Rs. 5,00,000/- [Rupees Five Lakhs] on account of injuries sustained by her son Sri Tilok Das in a motor accident. The claimant s case, in brief, is that on at about 5.00 P.M. the son of the claimant namely Sri Tilak Das intended to cross the A.T. Road near ISBT, Tarajan, Jorhat and reached the other side of the road. At that time the motorcycle bearing registration No. AS-03 K/6409 coming from the side of Pulibar driven by its driver in a high speed and in rash and negligent manner knocked down the son of the claimant as a result of which, Sri Tilak Das sustained severe injuries on his head and body. He was immediately shifted to Jorhat Medical College & Hospital where the doctors advised him to shift to Guwahati Medical College & Hospital. It is claimed by the claimant that her son is completely bed ridden and unable to do any work. Hence, the claim petition u/s. 166 of Motor Vehicles Act. 2). The O.P. No-1, Sri Lakhi Gogoi, owner of the motorcycle bearing registration No. AS-03 K/6409 as well as Sri Nayan Jyoti Gogoi [O.P. No-2], driver of the motorcycle, contested the claim by filing their separate written statement wherein O.P. No-1 has contended that on the date of accident his son Sri Nayan Jyoti Gogoi [O.P. No-2] was driving the aforesaid motorcycle in connection with an urgent family matters and later on he came to know that due to negligent and careless moving of the injured Sri Tilak Das his son [O.P. No-2] had met with an accident. The O.P. No-2 has contended interalia that on the date of accident it was the claimant who was careless and negligent in crossing the road. The driver of the motorcycle took utmost care of his motorcycle,the son of claimant sustained minor injuries and that due to his own fault and negligence the accident occurred. It is further contended that at the time of accident it was evening hours under insufficient light and later contended that injured without any signature in the claim petition nor swearing any affidavit the claimant Smt. Dibyamai Das has lodged the instant claim. Lastly, it is contended by both the O.Ps that the motorcycle was duly insured at the time of accident with Oriental Insurance Company Limited [O.P. No-3] and if any claim is to be paid to the claimant then the insurer is bound to pay the same. 2

3 3 O.P. No-3, Oriental Insurance Company Limited, by filing their written statement denied the whole fact of accident, as alleged. It also contended that the claim is not maintainable and there is no cause of action; that the claim is highly excessive and exorbitant. It is further claimed that the driver of the offending vehicle had no valid driving licence at the time of occurrence and hence the insurance company is not at all liable for violating the policy condition by the owner of the vehicle. The rash & negligent driving on the part of the driver is also denied. The insurance company further denied correctness of the age and income of claimant and about date, time & place of accident and nature of injury alleged to be sustained by the son of the claimant. 3). Upon the pleadings, the following issues were framed. ISSUE NO 1: Whether the accident occurred due to rash and negligent driving by the driver of the offending vehicle No. AS-03 K/6409 [Motorcycle]? ISSUE NO 2: Whether the injured sustained injuries due to the said accident? ISSUE NO 3: Whether the driver of the offending vehicle had a valid and effective driving licence at the time of accident? ISSUE NO 4: Whether the claimant is entitled to get any compensation? And, if so, to what extent and by whom it shall be paid? 4). In course of hearing, the claimant examined herself and another witness in support of her claim whereas the opposite party-insurance Company examined none. The claimant also exhibited the following documents- Exhibit-1 Police Report in Form No-54 Exhibit-2 & 3 Income certificate Exhibit-4 to 38 Medical vouchers of expenditures Exhibit-39 to 52 Medical reports Exhibit-53 Discharge certificate Exhibit-54 & 55 Advice Slip of doctor 3

4 4 Exhibit-56 Special Power of Attorney 5). I have heard the argument placed by the learned counsel for the claimant as well as the opposite party. Learned counsel for the claimant has contended that the claimant has proved her case by adducing evidence as well as submitting necessary documents in this regard. Learned counsel appearing on behalf of the insurance company contended that there was contributory negligence of the son of the claimant who was careless and negligent in crossing the road at evening hours. It is also submitted that there is no certificate that claimant requires further treatment. Lastly, it is contended that if any compensation is granted then the insurance company is liable to share only 50%. For just decision of the case the following issue wise discussion is taken up. DECISIONS AND REASONS THEREOF: 6). ISSUE NO 1 Whether the accident occurred due to rash and negligent driving by the driver of the offending vehicle No. AS-03 K/6409 [Motorcycle]? Smt. Dibyamai Das [PW-1] who is the mother as well as claimant of the instant claim is only a reported witness. She divulged that due to the accident her son has become physically disabled, for which, she had to file the instant claim. She had produced the necessary documents regarding medical treatment of her son at Guwahati Medical College & Hospital for seventeen days. During her cross-examination, she admitted that she did not personally witness the accident as on the relevant date she was at her residence; that she does not know for whose fault the accident in question occurred; that she came to know about the accident from Sri Samiran Bordoloi. It is further submitted by her during cross-examination that her son Tilak Das was an employee in the shop of aforesaid Bordoloi. 4

5 5 Sri Abani Kumar Bordoloi [PW-2] during his testimony divulged that on the date of accident, i.e., on 09/08/2012 at about 5.00 P.M. he was present in his shop named & styled Mint Leaf. At that time he witnessed the accident. He saw the motorcycle coming from Pulibar side driven by its driver in a rash and negligent manner dashing his employee Sri Tilak Das. Immediately he rushed to the place of accident and moved the head of injured in upward direction. At that time many people gathered at the place of accident. The injured was immediately shifted to the hospital as blood was oozing out of his head and mouth. On the next day the injured was shifted to Guwahati Medical College & Hospital for better medical treatment. He further stated that the injured after his release from the hospital forgets things. Further version of this witness is that the injured used to get monthly income of Rs. 2,500/- as an employee in his shop. He has exhibited the Income certificate [Exhibit-2] and his signature Exhibit-2 [1] therein. During cross-examination, he admitted that the injured was a wash boy in his shop and on request of the claimant he has given the Income certificate but he does not maintain any register for paying monthly payment to his employees. He further admitted that the injured was a casual employee of his shop. The claimant and her witness have deposed the actual factum of accident and nothing could be elicited from their cross-examination to discredit their version. Admittedly the investigating police officer had registered a case bearing Pulibar P.S. Case No. 157/2012 under Sections 279/338 IPC and investigation is going on which is revealed from Exhibit-1 [Form No-54]. Accordingly, keeping in view the unequivocal statement of the claimant as well as her witness and also by taking aid of the doctrine of res-ipsa-loquitor, I am bound to hold that the accident occurred due to rash and negligent driving on the part of the driver of the motorcycle bearing registration No. AS-03 K/ ). ISSUE NO 2 accident? Whether the injured sustained injuries due to the said 5

6 6 From the averments made in the claim petition as well as the deposition of the claimant and her witness it appears that on at about 5.00 P.M. the son of the claimant named Sri Tilak Das intended to cross the A.T. Road near ISBT, Tarajan, Jorhat and reached the other side of the road. At that time the motorcycle bearing registration No. AS-03 K/6409 coming from the side of Pulibar driven by its driver in a high speed and in rash and negligent manner knocked down the son of the claimant as a result of which, Sri Tilak Das sustained severe injuries on his head and body. He was immediately shifted to Jorhat Medical College & Hospital where the doctors advised him to shift to Guwahati Medical College & Hospital. It is claimed by the claimant that her son is completely bed ridden and unable to do any work. The evidence of the claimant is also supported by another eyewitness Sri Abani Kumar Bordoloi [PW-2]. To support her above contention that her son Sri Tilak Das suffered grievous injuries the claimant has exhibited Exhibit-39 the CT Scan Report wherein it is reflected that the injured suffered multiple tiny acute hemorrhagic contusions in the right parietal region. From Exhibit-41 it is seen that the injured sustained fracture noted in right frontal bone from the anterio-superior part and medial wall of orbit extending to involve perpendicular plate of ethmoid and mucosal thickening noted in right maxillary and bilateral sphenoid sinus. The claimant exhibited Exhibit-1 [Accident Information Report in Form No-54]; Exhibit-2 & 3 [Income certificates]; Exhibit-4 to 38 [Vouchers of medical expenditures]; Exhibit-39 to 52 [Medical reports]; Exhibit-53 [Discharge certificate]; Exhibit-54 & 55 [Advice slip of doctor] and Exhibit-56 [Special Power of Attorney]. No evidence was adduced on behalf of the insurance company to prove that there was any contributory negligence on the part of the driver-cumowner of the motorcycle as well as the injured son of the claimant. Be that as it may I do not see any infirmity in the evidence tendered by the claimant [PW-1] together with her witness [PW-2] as to the manner in which the accident took place and the nature of injuries sustained by the son of the claimant. Accordingly, this issue is also decided in the affirmative, i.e., in favour of the claimant. However, claimant failed to examine any Medical Officer to prove the 6

7 7 physical disability, if any. Claimant has also not submitted any Physical Disability Certificate from the competent Medical Board. 8). ISSUE NO 3 Whether the driver of the offending vehicle had a valid and effective driving licence at the time of accident? From the written statement filed by the O.P. No-3 [Oriental Insurance Company Limited] it is seen that they have pleaded that the driver did not possess any valid driving licence at the time of accident. But from Exhibit-1 [Police Report in Form No-54] it is revealed that Sri Nayan Jyoti Gogoi [O.P. No- 2] who was driving the motorcycle on the date of accident possessed valid driving licence bearing No /T/TNV/II/Private issued by the Office of District Transport Officer, Tuan Sand, Nagaland. Furthermore, the insurance company did not adduce evidence of any employee from the Office of D.T.O., Tuan Sang, Nagaland, to prove that the same was a forged one. In view of the above, I am of the view that the driver [O.P. No-2] possessed a valid driving licence at the time of accident and accordingly this issue is decided. 9). ISSUE NO 4 Whether the claimant is entitled to get any compensation? And, if so, to what extent and by whom it shall be paid? The exhibits exhibited by the claimants it goes to establish that as a result of the accident the son of the claimant suffered serious injuries on his person. The claimant appears to have incurred an approximate amount of Rs. 21,806/- [Rupees Twenty-one Thousand Eight Hundred & six] or Rs. 22,000/- [Rupees Twenty-two Thousand] only for his medical treatment vide Exhibit-4 to 38 [Series of vouchers & cash memos]. Keeping in view the nature of injury suffered by the claimant and the length of treatment undergone by him the amount stated to have been incurred by the claimant for treatment of his injuries is found to be a reasonable one and he is entitled to get the same reimbursed. However, medical vouchers [Exhibit-32 to 38] for an amount of Rs. 75/-, Rs. 75/-, Rs. 12,134/-, Rs. 24,600/-, Rs. 2,142/- [amount illegible], Rs. 7

8 8 140/-, Rs. 780/- and Rs. 1,000/- are not considered as they are not original vouchers and the amount is over-written in some of those exhibits. It is also seen that the claimant has also incurred an amount of Rs. 17,000/- [Rupees Seventeen Thousand] on the head of conveyance for attending doctors on different occasions vide Exhibit-16 & 17. The said amount is found just and reasonable one and the claimant is also entitled to get the same reimbursed. The son of the claimant at the time of accident was a casual worker in the shop name & styled Mint Leaf. Being an able-bodied person the notional income of the son of the claimant is held to be Rs. 3,000/- [Rupees Three Thousand] per month. He had to be admitted in the hospital for about 17 [seventeen] days. He might not have been able to do his normal work for at-least 4 [four] months. So, his total loss of income for those days will be Rs. 3,000/- x 4 = Rs. 12,000/- [Rupees Twelve Thousand]. Hence, the claimant is also found entitled to get the same reimbursed. The claimant is also found entitled to get an amount of Rs. 20,000/- [Rupees Twenty Thousand] on the head of pain and sufferings alongwith further amount of Rs. 10,000/- [Rupees Ten Thousand] for loss of amenities. The claimant is also found entitled to get Rs. 5,000/- [Rupees Five Thousand] as attendant s expenses and Rs. 5,000/- [Rupees Five Thousand] as miscellaneous expenses. Thus, the claimant is found entitled to get the following amount as compensation: PECUNIARY LOSS: Medical Treatment Rs. 22,000/- Travelling Allowance Rs. 17,000/- Loss of Income Rs. 12,000/- Pain & Sufferings Rs. 20,000/- Loss of Amenities Rs. 10,000/- Attendant s Expenses Rs. 5,000/- 8

9 9 Miscellaneous Expenses Rs. 5,000/- Total:- Rs. 91,000/- [Rupees Ninety-one Thousand] AWARD AND ORDER 10). As the motorcycle bearing registration No. AS 03 K/6409 was duly insured with Oriental Insurance Company Limited [O.P. No-3], therefore, it is ordered that Oriental Insurance Company Limited is to make the payment of Rs. 91,000/- [Rupees Ninety-one Thousand] after deducting interim-relief, if any, paid to the claimant Smt. Dibyamai Das with interest 7% per annum through an Account Payee Cheque from the date of filing of the claim petition, i.e., The O.P. No-3, Oriental Insurance Company Limited being the insurer of motorcycle bearing registration No. AS-03 K/6409 is further directed to clear the amount within a period of 60 [sixty] days, failing which, they shall be liable to pay future interest at the rate of 9% from today till its realization. 11). Furnish the either side with a copy of the orders passed immediately. Typed & transcribed by: MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL, JORHAT Sri Mrinal Jyoti Bora, (Stenographer Grade-I) 9

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