IN THE COURT OF THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL GOLAGHAT. MACT CASE NO. 77/2008 (Under Section 166 of the MV Act)

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1 IN THE COURT OF THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL GOLAGHAT MACT CASE NO. 77/2008 (Under Section 166 of the MV Act) Present: Smti. I. Barman Member, Motor Accident Claims Tribunal, Golaghat 1. Smti. Putuli (Dutta) Hazarika W/o Lt. Jibeswar Hazarika Vill: Halowa Gaon P.O. Ganak Pukhuri, P.S. Dergaon Dist. Golaghat, Assam... Claimant -Versus- 1. Sri Jibon Ch. Bora S/o Late Bonsidhar Bora Vill: Halowa Gaon, P.S. Dergaon District: Golaghat, Assam (Owner cum driver of Motor Cycle No. AS 03/G-0424) 2. Branch Manager National Insurance Co. Ltd. New Delhi Policy No Valid from to (Insurer of Motor Cycle No. AS 03/G- 0424). Opposite parties Advocate for the claimants : R. N. Baksh Advocate for the O.P No. 2 : P. K. Borthakur Date of Argument : Date of Judgment :

2 PAGE 2 J U D G M E N T 1) This claim case arose out of the application under section 166 of the Motor Vehicle Act (hereby mentioned as M.V. Act) 1988 filed by Smti. Putuli (Dutta) Hazarika claiming compensation from the opposite parties on account of death of her husband Jibeswar Hazarika in a motor vehicle accident. 2) The case of the claimant in brief is that on at about 03:00 P.M., deceased Jibeswar Hazarika was travelling in a motor cycle No. AS 03/G-0424 as pillion rider from Sarupathar towards Golaghat side driven by its owner Jibon Ch. Bora and at about 03:00 P.M. near Juria Dalang on N.H. 39 due to rash and negligent driving of the motor cycle, the driver of the motor cycle lost his control over the vehicle and knocked down pedestrian as a result of which both the rider and pillion rider fell down from the motor cycle and sustained grievous injuries. After the accident both the injured were taken to K. K. Civil Hospital, Golaghat but Jibeswar Hazarika died on his way to hospital. It is mentioned that with regard to the accident Golaghat P.S. Case No. 457/07 u/s 279/338/304 (A) I.P.C. was registered. It is further contended that at the time of accident the deceased was aged about 57 years old and was working as Assistant cashier in Assam Co-operative Apex Bank Limited, Sarupathar Branch drawing salary of Rs. 16,652.48/- and Rs. 5,000 per month from cultivation. He left behind his wife, two adult sons and one daughter. Hence, claimed Rs. 31,44,000/- from the opposite parties as compensation. 3) On receipt of notice, O.P. No. 1 the owner cum driver of motor cycle No. AS 03/G-0424 by filing written statement contended interalia that the vehicle in question was duly insured with National Insurance Co. Ltd. which is a comprehensive policy covering all risk and as such the Insurance Co. is liable to pay the compensation, if any. It is also submitted that the answering O.P. possessed valid and effective driving license at the time of accident. Denying the rash and negligent driving on the part of the driver of the motorcycle, the answering O.P. put the claimant to make strictest proof with regard to the age, occupation and income of the deceased and submits that the accident occurred due to negligence

3 PAGE 3 of the pedestrian who tried to cross the road at Juria Dalang. Hence prayed to dismiss the claim petition against the answering O.P. 4) Opposite party No. 2 National Insurance Co. Ltd. the insurer of vehicle No. AS-03/G 0424 entered appearance and by filing written statement pleaded that there is no cause of action. It is contended that the motor cycle No. AS-03/0424 was under due insurance with the answering O.P. but in the policy, the insured owner did not pay any additional premium to earn the risk of pillion rider and as such the answering O.P. is not liable to pay any compensation. The answering O.P. also put the claimant to make strictest proof with regard to the alleged accident, police report, driving license etc. and submits that the claimant s claim is excessive and not based on law. In this premise the answering O.P. prayed to dismiss the claim petition. 5) On the basis of the pleadings of the parties, the following issues are settled: i) Whether the accident took place due to rash and negligent driving on the part of the driver of the Vehicle No. No. AS-03/G 0424 (motorcycle)? ii) Whether the claimant is entitled for any compensation? If so, what is the quantum of compensation and from whom? 6) During course of trial, the claimant examined three witnesses who were duly cross examined by the answering O.P. The contesting O.P./ Insurance Company examined none. 7) I have heard argument for both the sides and carefully gone through the evidence on record. My findings in respect of the above noted issues, in view of the evidence on record and in the light of the submissions of the Ld. Counsel of both sides are as follows:

4 PAGE 4 8) Issue No. (i): The claimant Putuli Dutta Hazarika the wife of the deceased Jibeswar Hazarika has averred in the claim petition and also stated in her evidence that on her deceased husband was travelling in motorcycle bearing No. AS-03/G 0424 as a pillion rider driven by its owner Jiban Ch. Borah from Sarupathar town towards Golaghat town and at about 03:00 P.M. near Juria Dalang on NH 39 due to rash and negligent driving of the driver of the motor cycle No. AS-03/G 0424 lost his control over the vehicle and knocked down a pedestrian as a result of which both the rider and pillion rider fell down from the motorcycle and sustained injuries but the pillion rider Jibeswar Hazarika died on the way to hospital. She further stated that with regard to the accident Golaghat P.S> Case No. 457/07 u/s 279/338/304(A) I.P.C. was registered. In support of the evidence, she proved the copy of F.I.R. as Ext. 1, copy of Chargesheet as Ext. 2, M.V.I. report as Ext. 3, P.M. report as Ext. 4 and Accident report as Ext. 5. During cross examination by O.P. No. 2, C.W.1 stated that she was not present at the time of accident. 9) Claimant side also examined one eye witness Sharat Rajkhowa as C.W.2 who categorically stated that on at about 03:00 P.M. when he was coming towards Golaghat town by riding his bicycle, suddenly he saw one motor cyclist coming from Silonijan side riding motorcycle bearing No. AS-03/G 0424 in rash and negligent manner with one pillion rider lost his control and knocked down a pedestrian namely Habil Bhaguwar while both the rider and the pillion rider fell down from the motor cycle and sustained injuries. He further stated that after the accident he alongwith other person arranged a vehicle to take the injured to hospital but the pillion rider Jibeswar Hazarika died on his way to hospital. He also clearly stated that the accident took place due to rash and negligent driving of the motorcycle. 10) Now let us go to decide whether the accident took place due to rash and negligent driving of the offending motorcycle bearing No. AS-03/G From the evidence of C.W.1 and eye witness C.W.2 as well as from the documents submitted by the claimant in this case, it is clear that the Jibeswar Hazarika died in the motor vehicle accident which occurred on As per the Accident Information Report Ext. 5 issued by i/c Traffic, Golaghat P.S., the accident occurred on at 03:00 P.M. on N.H. 39,

5 PAGE 5 near Juria Dalang involving the vehicle No. AS-03/G Both C.W. 1 and C.W.2 categorically stated that the driver of the motorcycle lost his control due to his rash and negligent driving and knocked down a pedestrian and both the deceased/pillion rider and rider of the motorcycle fell down from the motor cycle sustaining injuries but the pillion rider Jibeswar Hazarika died on his way to the hospital. Chargesheet Ext. 2 was also submitted against the driver of the motorcycle bearing No. AS-03/G 0424 u/s 279/304 (A)/338/427 I.P.C. During cross examination of C.W.s nothing contrary could be elicited on material aspect. The O.P. also did not adduce any rebuttal evidence so far the rash and negligent driving of the offending vehicle is concerned. In view of the above evidence and in absence of any contrary legal evidence, it is established that the accident took place solely due to the rash and negligent driving of the driver of the offending motorcycle No. AS-03/G 0424 and deceased Jibeswar Hazarika died due to the injury sustained in the said vehicle accident. Accordingly this issue is decided in favour of the claimant. 11) Issue No. (ii): This issue relates to the entitlement of the claimant for compensation and extent thereof as well as the liability of the opposite party to pay such compensation. 12) During cross examination by O.P. No. 2, the claimant admitted that her deceased husband besides her left two sons and one unmarried daughter. She further stated that she was serving as Head Mistress of Borjuri M.V. School and at the time of retirement her gross salary was more or less Rs. 28,000/- P.M. She stated that she already retired from service in February, In my opinion due to death of her husband she lost the companionship, love, care and protection, etc. which the spouse is entitled to get besides looking after her unmarried daughter. So in my opinion even if the claimant is getting pension including family pension but pension cannot be deducted from compensation and as such she is entitled for compensation. 13) Claimant stated that her deceased husband was 57 years old at the time of death. Post mortem report also reflects his age as 57 years. Hence for the age group of years, multiplier 9 has to

6 PAGE 6 be taken for ascertaining the loss of dependency. Claimant also examined one another witness Anil Baruah as C.W. 3 the Asstt. Cashier of Assam Co-operative Apex Bank, Sarupathar branch who stated that Jogeswar Hazarika was working as Asstt. Cashier in Assam Co-operative Apex Bank, Sarupathar branch who died on and his date of superannuation is who had drawn the salary of Rs. 16, per month. In this respect, he proved the salary certificate as Ext. 6. As per Ext.6, after deduction he had drawn Rs. 14, per month. Hence his annual income would Rs. 1,68,653.76/-. Further the deceased left behind his wife as his dependant. So 1/3 rd from the annual income of the deceased is to be deducted towards his personal and living expenses. Hence the assessment of the compensation in details is as follows: Net Salary : Rs. 1,68, Standard Deduction : Rs. 1,00, Taxable Income (Rs. 1,68, ,00,000) : Rs. 68, Tax on Income : Rs. 6, (Less 10%) Net Salary : Rs. 1,68, Rounded off to : Rs. 1,68, Less Income Tax : Rs. 6, Income after deduction of tax : Rs. 1, 61, Income on deduction of 1/3 rd towards personal expenses of the deceased (1,61,789 3 x 2) : Rs. 1,07, Loss of dependency (Rs. 1,07, x 9) : Rs. 9, 70, Hence the claimant is entitled to get an amount of Rs. 9,70,734.00/- as loss of dependency. Besides loss of dependency, the claimant is also entitled to funeral expenses as well as same amount as general damages caused to him. So in my considered opinion the following amount would be just and reasonable that the claimant is entitled to.

7 PAGE 7 Loss of dependency : Rs. 9,70, Loss of consortium : Rs. 1,00, Funeral expenses : Rs. 5, TOTAL : Rs.10,75, Rounded off to Rs. 10,75, (Rupees Ten Lakhs Seventy Five Thousand Seven Hundred and Forty Only) 14) Considering all the facts and circumstances of the case and the materials on record, it is considered that Rs. 10,75, (Rupees Ten Lakhs Seventy Five Thousand Seven Hundred and Forty Only) would be just and reasonable compensation in the instant case. The issues are answered accordingly. 15) The offending motor cycle No. AS 03/G-0424 is insured with National Insurance Co. Ltd. (O.P. No. 2) with valid insurance policy on the date of the accident. Hence both O.P. No. 2 is liable to pay the compensation. O R D E R In the result, the claim petition is allowed on contest. Claimant is awarded a compensation of Rs. Rs. 10,75, (Rupees Ten Lakhs Seventy Five Thousand Seven Hundred and Forty Only) as compensation. The amount of compensation shall carry per annum from the date of filing the claim petition, i.e., from till its realization. O.P. No. 2, i.e. National Insurance Co. Ltd. is directed to pay the amount within 60 days from today, i.e., Send a copy of the judgment to the O.P. No. 2, i.e. National Insurance Co. Ltd. for information and necessary action.

8 PAGE 8 Given under my hand and seal of the court on this 22 nd day of January, 2015 at Golaghat. Dictated & corrected by me. Member, Motor Accidents Claims Tribunal.. Golaghat. Member, Motor Accidents Claims Tribunal Golaghat...