IN THE COURT OF MEMBER MOTOR ACCIDENT CLAIM TRIBUNAL, NAGAON (ASSAM) M.A.C. Case No.97/06

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1 IN THE COURT OF MEMBER MOTOR ACCIDENT CLAIM TRIBUNAL, NAGAON (ASSAM) M.A.C. Case No.97/06 Sri Misimal Bordoloi : Claimant. -Vs- (1) Sri Naren Baishya (2) United India Ins. Co. Ltd., (3) Sri Prabal Kakati and (4) New India Ass. Co. Ltd., : Opp. Parties. Advocate for the claimant : Mr.H.I.Bhuyan Advocate for the United Ins. Co. : Mr.G.B.Goswami. Advocate for the New India Ass. Co.: Mr.K.C.P. Raj. Date of evidence : , & Date of argument : , & Date of judgment : J U D G M E N T The present claim case has arisen out of a claim petition filed U/S 166 of the M.V.Act by one Sri Misimal Bordoloi for the injuries sustained by him in a motor vehicle accident. The case of the claimant in a nut shell is that on the fateful day of accident i.e., on at about p.m., while the claimant was travelling as pillion rider of the motor cycle bearing registration no.as-02/a-9435 (M/C) from Sensuwa towards Nagaon on the way at Khutikatia suddenly the offending truck bearing registration no.as- 21/4826 which was coming from the opposite direction in a rash and negligent manner

2 knocked down the motor cycle. As the result of the accident the claimant sustained grievous injuries on his person. The O.P. No.3, owner of the vehicle bearing no. AS-21/4826 (truck) contested the case by filing written statement contending inter-alia that the claim petition is not maintainable and that there is no cause of action. The O.P. also denied the age, income, occupation of the injured as alleged in the claim petition. The owner of the vehicle has stated that at the time of accident the vehicle was insured with New India Ass. Co. Ltd., vide policy no /31/04/01591 which is valid upto and that he had valid driving licence at the time of accident and in case any liability is fixed upon the owner then he should be indemnified by the above named insurer. On receipt of the notice from the tribunal, the New India Ass Ins. Co. Ltd., the insurer of vehicle no.as-21/4826 (truck) contested the case by filing written statement contending, inter-alia, that the claim petition is not maintainable; that the claim petition is barred by principles of estoppels, waiver and acquiescence; that the claim petition is bad for mis-joinder of necessary party. It is submitted that the driver of the vehicle had no valid driving licence at the relevant time of accident and hence the company is not liable to indemnify the owner. The insurance company denied the age, income, occupation of the injured as alleged in the claim petition. The United India Ins. Co. Ltd., the insurer of vehicle no. AS-02/A-9435 (M/C) contested the case by filing W/S denying the whole fact of accident as alleged and also denied receipt of any injury by the claimant. Rash and negligent driving on the part of the driver of vehicle no.as-02/a-9435 (M/C) is also denied. The insurance company denied the age, income, occupation of the injured as alleged in the claim petition. It is submitted that the driver of the vehicle had no authorised valid driving licence at the relevant time of accident and hence the company is not liable to indemnify the owner. None has appeared on behalf of the owner of the vehicle no. AS-02/A-9435 (M/C) to contest the case hence, the case proceeded ex-parte against the owner of the vehicles. The following issues are framed for decision:- 1. Is there any cause of action for filing the claim petition?

3 2. Whether claim petition is maintainable? 3. Whether the accident occurred due to rash and negligent driving of the drivers of vehicle nos.as-02/a-9435 (M/C) and AS-21/4826 (truck)? 4. Whether the claimant is entitled to receive compensation and if so to what extent and who is liable to pay the same? 5. To what relief/reliefs are the parties entitled? DECISION AND REASONS THEREOF Issue No 1 & 2 The claimants have filed this claim U/S 166 of the M.V.Act. The evidence of the claimant is that the incident occurred due to rash and negligent driving of the driver of the vehicle no. AS-21/4826 (truck) and that as a result of the accident he sustained injuries. In the claim petition he has impleaded the owners and also the insurers of the offending vehicle no.as-21/4826 (truck) which was involved in the accident. The driver of the vehicles should have been impleaded but failure to implead the drivers would not affect the claim case. The insurer and owner of vehicle bearing no. AS-02/A-9435 (M/C) was also impleaded as the said vehicle was also involved in the accident. There is nothing in the record to show why the claim petition is not maintainable. Accordingly, it is decided that claim petition is maintainable and there is cause of action for filing the claim petition. These issues are decided accordingly in favour of the claimant. Issue No.3 The claimant adduced his evidence in support of his claim petition as P.W.1. He disclosed during his testimony that on the fateful day of accident i.e., on at about p.m., while he was travelling as pillion rider of the motor cycle bearing registration no.as-02/a-9435 (M/C) from Sensuwa towards Nagaon on the way at Khutikatia suddenly the offending truck bearing registration no.as-21/4826 which was coming from the opposite direction in a rash and negligent manner knocked down the motor cycle. He disclosed that as the result of the accident he sustained grievous injuries on his person and immediately after the accident he was admitted at G.D. Hospital & Research Centre, Nagaon for his treatment. He has submitted Ext.2 to 26 are various medical documents

4 During cross-examination he disclosed that the motor cycle in which he was travelling was on the left side of the road and the truck vehicle which was coming from the opposite side in a rash and negligent manner hit the motor cycle. The learned advocate for the New India Ass. Co. Ltd., submitted that there was no fault on the part of the driver of the truck and that the accident happened due to fault of the motor cyclist. It is further submitted that evidence of claimant shows that there was head on collision between the vehicle bearing no.as-02/a-9435 (M/C) and AS- 21/4826 (truck) and as such at best the Tribunal should hold that there is contributory negligence on the part of the driver of both the vehicles. Per contra the learned advocate for United India Ins. Co. Ltd., submitted that the evidence of the claimant makes it clear that there is no contributory negligence on the part of the motor cyclist. It is submitted that the claimant testified that the bike was plying on the extreme left side of the road and the vehicle bearing no. AS-21/4826 (truck) hit the motor bike by coming from the opposite direction in a rash and negligent manner. The fact of head on collision itself does not mean that there is contributory negligence on the part of the driver of motor cycle. From the evidence of the claimant it appears that the motor cycle was driving on the extreme left side of the road and the truck vehicle hit the motor cycle by coming from the opposite direction. The said evidence of the claimant could not be dislodged by the insurer of the truck vehicle. The owner of the truck also did not challenge the evidence of claimant in this regard rather he remained absent at the time of cross-examination of claimant. Accident information report shows that Nagaon Traffic Branch G.D.Entry No. 133 dated was registered by Nagaon P.S., regarding the accident caused by the offending vehicle bearing registration No. AS-21/4826 (truck) and Misimal Bordoloi was shown as the ill fated person who sustained injuries due to the accident. The evidence of the claimant and accident information report proved the fact that the accident was caused due to rash and negligent driving of the offending vehicle by the driver of the vehicle. Medical documents shows that claimant sustained injuries in the accident. Accordingly this issue is decided holding that the cause of accident was due to

5 rash and negligent driving of the driver of vehicle bearing registration no. AS-21/4826 (truck). Issue No.4 & 5 Ext. 3 discharge certificate of G.D. Hospital & Research Centre, Nagaon shows that claimant was admitted into the said hospital on and discharged on for fracture neck right humerous and undisplaced fracture left mallelous and multiple soft tissue abrassion. Percutaneous screw fixation and POP (right mallelous) was done and doctor advised to take care of POP cast, not to bear weight. Ext.4 is the prescription of G.D. Hospital & Research Centre, Nagaon. Ext.5 to 8 are X-ray reports of G.D. Hospital & Research Centre, Nagaon show soft tissue swelling around the right ankle joint, fracture in the lower end of the left fibula with intra articular extension, lartial break in the base of 5 th metatarsal, fracture neck of right humerous. Since the claimant sustained injuries in the motor vehicular accident due to fault of the drivers of the offending vehicle No. AS-21/4826 (truck) hence, he is entitled to receive compensation. Now, it is to be determined what would be the just and proper compensation and who is liable to pay the compensation. Claimant no where in his affidavit evidence disclosed anything about any disability. But he exhibited one disability certificate Ext.2. Now, it is to be determined what would be the just and proper compensation and who is liable to pay the compensation. The claimant examined P.W.2 Dr. Abdul Awal to prove the disability certificate. P.W.2 Dr. Abdul Awal testified that the Member of the District Medical Board examined Misimal Bordoloi and opined that he is physically handicapped due to frozen shoulder right, chronic osteo arthritis left ankle and board assessed the disability as 45% which is permanent in nature. He further exhibited Ext.2 as the disability certificate issued by District Medical Board, Nagaon and identified Ext.2(1) as the signature of Chairman of District Medical Board, Nagaon which is known to him.

6 In cross-examination he disclosed that there is no orthopedic surgeon in the board. He disclosed that he cannot say whether any fresh X-ray was done prior to issuing disability certificate. He disclosed that the assessment of disability was entirely done upon the physical examination of the patient. Nothing appears from the evidence of the doctor that any orthopedic expert was present at the board so as to assess the disability correctly. Orthopedic expert would have been the best person to assess the disability correctly. The doctor who appeared to prove the disability certificate also has no knowledge how the board assessed the disability. He could not say about the details of the assessment of the patient by the board. He admitted that assessment was purely made on physical examination. Nothing appears that any fresh X-ray was advised by the board to determine what is the latest position of the injury. No document of continuation of treatment after could be shown. The claimant also nowhere disclosed about any problem which he still suffered from the RTA injuries. He did not disclose about continuation of pain or inability to move his right shoulder or difficulties in ankle (L). If he would have suffered from any disability then certainly there would have continuation of treatment. But there is no document of treatment after Under the above circumstances I am not inclined to accept the disability certificate. I have carefully perused the prescriptions and other cash memos. On perusal of the cash memos Ext.11 and 12 it appears that it was already adjusted in cash memos Ext.19. So Ext.11 and 12 cannot be counted. From the remaining cash memos it appears that claimant has expended an amount of Rs.31,973/- for his treatment. So she is entitled for this amount as pecuniary damages. The claimant testified that he earned monthly Rs.5,000/- by working as security at All India Radio. However, no certificate regarding his income could be submitted by him. As an able bodied man the injured definitely would have earned an amount of Rs.3,000/- per month. Medical documents shows that claimant sustained fracture neck right humerous and undisplaced fracture left mallelous and multiple soft tissue abrassion. Percutaneous screw fixation and POP (right mallelous). So for causing such injury he would have definitely unable to perform his work for 5 months. So, he is entitled to Rs.15,000/- as loss of income. For pain and suffering for causing injury at forearm and

7 chest an amount of Rs.20,000/- is added. Thus the total amount of compensation the claimant is entitled is to Rs.66,973/-. Now the question is who is liable to pay the compensation to the claimant. It is already discussed that the accident occurred due to rash and negligent act on the part of the driver of the vehicle bearing no. AS-21/4826 (truck). Though the insurance side took the plea that the driver of the vehicle had no valid licence yet the insurance side could not prove the said fact. The accident information report on the other hand shows the fact that driver had the licence bearing no. F-751/2001/EZ/K which was valid upto and which was issued by DTO E/Z Kamrup. Above facts shows that the offending vehicle was driven by a driver having valid licence and owner as such has not violated the condition of the insurance policy. As per the claim petition and accident information report the vehicle bearing no. AS-21/4826 was insured with New India Ass. Co. Ltd., vide policy no /31/04/01591 which was valid upto Accident happened on Hence, the New India Ass. Co Ltd., is liable to pay compensation to the claimant. AWARD AND ORDER Therefore, it is ordered that the New India Ass. Co Ltd., be directed to make payment of Rs.66,973/- only to claimant with 7% per annum from the date of filing the claim petition till realisation. The claimants shall also be entitled to Rs.1,000/- each as cost of this proceeding. Copy of judgment and order be communicated to the O.P. The judgment is pronounced and delivered in the open court under my hand and seal of this court on this the 17 th day of June/2015. Dictated & corrected by me:- Member, M.A.C.T., Nagaon. Member, Motor Accident Claim Tribunal, Nagaon(Assam).

8 A P P E N D I X Claimant examined 1) P.W.1 Sri Misimal Bordoloi 2) P.W.2 Dr. Abdul Awal. Opp.Party examined Nil Claimant exhibited 1) Ext.1 : Accident Information Reports. 2) Ext.2 : Disability cerificate. 3) Ext.3 to 8 : Medical documents. 4) Ext.9 to 26 : Cash memos. Opp.party exhibited Nil. Member, Motor Accident Claim Tribunal, Nagaon(Assam)

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