COURT OF MOTOR ACCIDENT CLAIMS TRIBUNAL KARMUP :: GUWAHATI. MAC Case Nos. 2446/09 & 2447/09. 1 Sri Arun Das 2 Sri Bipul Das (2447/09) Claimants - VS -

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1 1 COURT OF MOTOR ACCIDENT CLAIMS TRIBUNAL KARMUP :: GUWAHATI Present :- Paran Kumar Phukan Member, MACT Kamrup, Guwahati MAC Case Nos. 2446/09 & 2447/09 1 Smti Jamini Das 2 Sri Ambika Das (2446/09) 1 Sri Arun Das 2 Sri Bipul Das (2447/09) Claimants - VS - 1 HDFC ERGO General Insurance Co Ltd (Insurer of the vehicle no. AS-18/A-0250) 2 Md Abdul Hussain (Owner of the above vehicle) 3 Sri Ajay Kalita (Driver of the above vehicle) Opp Parties Advocate for the claimants : Mr Zafar Iqbal Advocate for the OP No. 1 : Mr R Goswami Date of hearing argument : Date of judgment : J U D G M E N T Both the cases have arisen out of the same accident and against the same opposite parties, and as such, they have been merged together and disposed of by this common judgment. The claim cases have arisen out of an accident which occurred on near Mirza Swahidbedi on the National Highway 37, involving vehicle no. AS-18/A-0250, which was owned by OP No. 2, Md Abdul Hussain, driven by OP No. 3, Mr Ajay Kalita and insured with the HDFC ERGO General Insurance Co Ltd.

2 2 The case of the claimants in brief is that on the ill-fated day at about 1.00 AM, the deceased, Anjan Das, son of claimant no. 1, Smti Jamini Das, (in MAC Case No. 2446/09) and the deceased, Akhil Das, son of the claimant no. 1, Sri Arun Das (in MAC Case No. 2447/09), were coming towards Mirza to attend a marriage ceremony in the motorcycle bearing registration no. AS-01/AL-0176 and when they arrived near Mirza Swahidbedi, the truck bearing registration no. AS-18/A-0250, which was proceeding towards Guwahati from Chaygaon knocked the motorcycle from behind, as a result of which both of them sustained grievous injuries and died on the same day. The deceased, Akhil Das, was the rider of the motorcycle and the other deceased, Anjan Das, was the pillion rider. Both the deceased were aged about 20 years at that time and was earning Rs 8000/- per month from business and they were maintaining their families. The parents of the deceased claimed compensation for the death of their son in the accident. The OP No. 1, insurer of the offending truck contested the claim and in their written statement contended inter-alia that the cases are not maintainable that the claim-petitions are bad for non-joinder and misjoinder of the necessary parries and the claims are frivolous etc. The company denied the averments made by the claimant in the claimpetitions and wanted strict proof. The company also declined to accept the liability if there was any violations of the terms and conditions of the policy or the driver did not have valid and effective driving licence. The opposite parties No. 2 & 3, owner and driver of the offending vehicle, did not participate in the proceeding and case proceeded ex-parte against them. Upon the pleadings of the parties, the following ISSUES were framed for adjudication :- 1 Whether the victims, Late Anjan Das and Late Akhil Das, died in the alleged road accident dated involving vehicle no. AS-18/A-0250 (Truck) and whether the said accident took place due to rash and negligent driving of the driver of the offending vehicle?

3 3 2 Whether the claimants are entitled to compensation and if yes, to what extent and by whom amongst the opposite parties, the said compensation amount will be payable? During enquiry, the claimants of both the cases examined themselves as PW-1 and produced some relevant documents. The claimants also examined one eye-witness to the accident as PW-2 in both the cases. Opposite party, insurer, has not adduced any evidence on their behalf. I have heard arguments of both the parties, perused the materials on records and upon consideration of the same, the issues are decided as follows :- ISSUE NO. 1 The claimants of both the cases averred in the petitions and also stated in their evidence that the accident took place due to rash and negligent driving by the driver of the truck and the truck hit the motorcycle from behind, as a result of which they sustained injuries and died. Admittedly, they have not seen the accident and they must have gathered information from others. In support of their oral evidence they produced and proved the Accident Information Report Ex-1 (in both the cases), the Post Mortem Report as Ex-2; certified copy of the FIR, chargesheet and seizure list as Ex-3(1 to 4). In the accident information report, the number of the truck involved in the accident has been mentioned including the name of the deceased. It also reveals that Palashbari PS registered a case being PS Case No. 236/09 u/s 279/304-A IPC against the driver of the offending truck bearing no. AS-18/A In the written FIR filed by the brother of the deceased, the date, time and the manner of the accident and the number of the truck involved in the accident has been clearly mentioned. The FIR shows that when the deceased were proceeding from Mirza at about 1.00 AM, the offending truck bearing no. AS-18/A-0250 which was proceeding in the same direction, hit the motorcycle from behind. After completion of the investigation Palashbari PS submitted charge-sheet against the driver of the offending truck u/s

4 279/304-A IPC. During investigation police seized the truck vide Ex-3(4) and also motorcycle vide Ex-3(3). 4 The claimant also examined one eye-witness as PW-2, Arabinda Thakuria, who claims to have seen the accident. His evidence is that on the day of the accident at about 1.00 AM, the offending truck hit the motorcycle of the deceased from behind near Mirza Swahidbedi and as a result, both the rider and the pillion rider died. He has categorically stated that the accident took place due to rash and negligent driving by the driver of the offending truck. In cross-examination he clarified that he was behind the motorcycle of the deceased and they were coming from a marriage. In cross-examination he further deposed that the truck was stopped by the driver. It is found from the evidence that the truck hit the motorcycle in the side of the road. The oral evidence of the claimants coupled with the documents produced and proved by them and the evidence of eye-witness established that the accident took place due to sole negligence by the driver of the truck. No rebuttal evidence has been adduced by the insurer to prove that there was any contributory negligence. Learned Advocate appearing for the insurance company argued that rash and negligent driving by the driver of the truck has not been established. In a case u/s 166 of the MV Act, it is incumbent on the part of the claimant to prove the rash and negligent driving. In the instant cases, although the claimants have not seen the accident they have gathered information from others and they have examined one eye-witness as PW- 2 and he clearly stated that the truck hit the motorcycle from behind on the side of the road. The claimant submitted the FIR, charge-sheet which also established that the truck was driven by the driver in a rash and negligent manner and the police submitted charge-sheet against him. No evidence has been adduced by the insurer to prove that the truck was not at fault. Under these facts and circumstances, the only logical conclusion is that the accident took place due to rash and negligent driving by the driver of the offending truck. The manner of the accident hitting the motorcycle from behind itself indicates that it was driven in a rash and negligent driving by the driver. That the offending truck was insured with

5 the HDFC ERGO General Insurance Co Ltd, is not in dispute. Hence this issue is decided in favour of the claimants. 5 ISSUE NO. 2 In view of my discussions and decisions of Issue No. 1, the claimants are certainly entitled to compensation as sought in their respective claim petition. Now coming to the quantum of compensation to which the claimant of each case would be entitled is assessed as under : MAC Case No. 2446/09 The claimant of this case is Jamini Das and Sri Ambika Das, are the parents of the deceased. In her evidence PW-1, Jamini Das.,deposed that her son was aged about 20 years and his monthly income was Rs 8000/-. But she could not file any documentary evidence regarding the business and income of her deceased son. In crossexamination, she stated that the deceased read up to Class-IX. She has not uttered a single word regarding the nature of business of her deceased son. In cross-examination she admitted that he was having a betel-nut shop. But nothing has been mentioned in the claim-petition in this regard also. From the oral evidence of the claimant it would be unfair to come to a finding that the deceased was earning Rs 8000/- per month from business. The deceased was a young man aged about 20 years and he was quite capable of earning money and he had a long future ahead of him. Considering all aspects, his monthly income is assumed to be Rs 4000/-. According to the claimant, in her affidavit she has stated that she is aged about 42 years, but she could not produce any documentary evidence in this regard. It would be appropriate to take the age-group of years and the appropriate multiplier is 13. Thus taking the income of the deceased is Rs 4000/- and after deducting half of the income (deceased being unmarried) the annual dependency comes to Rs 24000/-. Claimant certainly incurred some expenses for funeral etc, and as such, besides loss of dependency, the claimants are entitled to some amount, on account of funeral expenses. Thus, just and reasonable

6 compensation, to which the claimants are entitled in the instant case is assessed as under : 6 Loss of dependency x 13.. Rs 3,12, Funeral expenses.. 5, Loss of estate.. 5, Love and affection.. 10, Total.. Rs 3,32, MAC Case No. 2447/09 Claimants of this case are Arun Das, father of the deceased and Bipul Das, brother of the deceased. Learned Advocate appearing for the insurance company submitted that there was no loss of dependency due to death of the deceased as the father and brother of the deceased were not dependent on his income. The position of dependency of the father and the brother of the deceased has been well articulated by the Hon ble Supreme Court in the Judgment of Sarla Verma -Vs- New Delhi Road Transport Corporation reported in 2009 (6) SCC 121. In the said judgment, it has been decided that the father and the brother of the deceased are not entitled to compensation. In this case no specific evidence has been adduced to prove that he was depending on the income of his deceased son and the other claimant, Sri Bipul Das, the elder brother of the deceased was also doing some business. Evidence of the father is that the deceased was maintaining the family with his income. But he could not produce any income certificate of his deceased son. Although he claimed in his affidavit that the entire family was dependent on the income of the deceased and there was no other source of income. He admitted in cross-examination that he had some cultivable land and he was doing cultivation. Considering the totality of the evidence on record, in my considered opinion compensation should not be denied to the father for the death of his deceased son who was aged about 22 years at that time. He is only a cultivator and he must have received supports from his son for maintaining the family. However, in this case considering the facts notional income of Rs 15,000/- is taken as income of the deceased for deciding loss of dependency. The claimant claimed that he was aged about 45 years but he could not file any

7 7 documentary evidence regarding his age and from the physical appearance, he can safely be placed in the age group of years and the appropriate multiplier is 11. Claimant certainly incurred some expenses for funeral etc, and as such, besides loss of dependency, claimant is entitled to some amount, on account of funeral expenses. Thus, just and reasonable compensation, to which the claimants are entitled in the instant case is assessed as under : Loss of dependency 15000x 11.. Rs 1,65, Funeral expenses.. 5, Loss of estate.. 5, Love and affection.. 10, Total.. Rs 1,85, Accordingly, the issue no. 2 is decided in favour of the claimant. A W A R D Rs 3,32,000/- (Three lakh thirty-two thousand) in MAC Case No. 2446/09 and Rs 1,85,000/- (One lakh eighty-five thousand) in MAC Case No. 2447/09 are awarded with 6% p.a. from the date of filing of the claim petition, i.e , till payment. The opposite party, HDFC ERGO General Insurance Co Ltd, is directed to pay the award within one month from the date of order. 50% of the awarded amount shall be fixed deposited in the name of the claimants for three years in both the cases Given under my hand & seal of this Court on this 7th day of March (P K Phukan) Member Motor Accident Claims Tribunal Kamrup, Guwahati