BEFORE THE ADDL MEMBER-1, MOTOR ACCIDENT CLAIMS TRIBUNAL TINSUKIA :::::::::::::::ASSAM

Transcription

1 1 BEFORE THE ADDL MEMBER-1, MOTOR ACCIDENT CLAIMS TRIBUNAL TINSUKIA :::::::::::::::ASSAM District : Tinsukia Present: Smti. Seema. Das, AJS, Addl. Member-1, Motor Accident claims Tribunal, Tinsukia. M.A.C.T. Case No.77 of ) Smti Usha Gogoi Das, W/o. Late Dipak Das, R/o. Bogapani Colony, P.O.-Bogapani, P.S.-Digboi, District-Tinsukia (Assam) 2) Sri Dhurv Das, S/o. Late Dipak Das, R/o. Bogapani Colony, P.O.-Bogapani, P.S.-Digboi, District-Tinsukia (Assam) Claimants [Claimant No.2 being minor and is represented by his mother Smti Usha Gogoi Das and they are presently residing at C/o. Power House, Tezu, P.O & P.S-Tezu, District-Lohit, Arunachal Pradesh] 1) Sri Bishnu Chetry, -Versus- S/o. Sri Purna Bd. Chetry, R/o. Village-Samukjan, P.O-Samukjan, Via-Ledo, P.S-Margherita, District-Tinsukia (Assam) [ Driver of the vehicle bearing Registration No.AS-23-AC-7733 (Bolero Pickup)]

2 2 2) Sri Raju Chetry, S/o. Sri Arjun Bahadur Chetry, R/o. Namdang Gaon, P.O.-Borgolai, P.S-Margherita, District-Tinsukia (Assam) [Owner of the vehicle bearing Registration No.AS-23-AC-7733 (Bolero Pickup)] 3) The Cholamandalam MS General Insurance Co. Ltd. Guwahati Branch, Bora service, Ulubari, P.O-Ulubari, District-Kamrup (Assam) [Insurer of the vehicle bearing Registration No.AS-23-AC-7733 (Bolero Pickup)] Appearance:- Sri Joydeep Pal Chowdhury, Advocate.....For the Claimants Sri Bhaben Sharma, Advocate.....For the O.P No.3 Date of Argument : Date of Judgment : J U D G M E N T The instant case has been filed by the claimants namely, Smti Usha Gogoi Das, wife of Late Dipak Das of Bogapani Colony under Digboi PS in the district of Tinsukia, Assam for seeking compensation on account of death of her husband namely, Dipak Das in a motor vehicle accident, which occurred on at about 8:00 P.M on National Highway No.38 near Nirupama Oil Traders (petrol depot) of Bogapani colony under Digboi PS. The claimant No.2 is the minor son of the claimant No.1 and as such, the minor is represented by the claimant No.1.

3 3 2. The claimant No.1 in her claim petition has reiterated that on the fateful day i.e. on at about 8:00 P.M when her husband Dipak Das was proceeding from Digboi side towards Makum through National Highway No.38, the offending vehicle bearing registration No. AS-23- AC-7733 (Bolero Pick up) moving from opposite direction knocked down Dipak Das, who was proceeding towards his residence after filling petrol at Nirupama petrol depot. The offending vehicle dragged Dipak Das for a while and thereafter, stopped the vehicle by the side of the road. On impact, Dipak Das instantaneously died on the spot. Thereafter, his autopsy was conducted at Tinsukia Civil Hospital and subsequently, the postmortem report was obtained. The accident occurred due to rash and negligent driving on the part of the driver of the offending vehicle i.e. OP No.1 Bishnu Chetry and a case was registered as Digboi PS case No. 170/2013, u/s.279/304-a/427 of the IPC against him. The claimant further reiterated that the deceased was about 41 years of age when the accident occurred and he was an electrician by profession at the office of the Assistant Engineer (E), Electrical Sub-Division, Department of Power, Tezu of Lohit district in the state of Arunachal Pradesh. The deceased was drawing about Rs.9,000/- when the accident occurred. The registration number of the motorcycle, the deceased was riding at the time of accident, was AS-23-F As such, the claimants pray for compensation to the tune of Rs.16,14,000/- from the OP No.3 as the offending vehicle was duly insured with OP No.3 at the time of accident. 3. The OPs have contested the case by filing their respective written statements to negate the claim of the claimant's. 4. The OP Nos.1 & 2 in their joint written statement has drawn the attention of the Court that the offending vehicle bearing registration No.AS-23-AC-7733 was duly insured with OP No.3 i.e. the Cholamandalam MS General Insurance Company Ltd bearing Policy No. 3379/ /000/00, which was valid from to midnight. Besides, the OP No.1 had valid driving licence bearing No.F/23256/TSK, which is valid up to Further, the OP No.1 had not driven the vehicle in a rash and negligent manner, rather the

4 4 motorcyclist had driven his motorcycle in a reckless manner culminating in the accident. 5. As such, the answering OPs pray for dismissal of the instant case against them and if any compensation has to be awarded to the claimants, the OP No.3 will be responsible and liable to pay the same. 6. The OP No.3 in its written statement has pointed out to the Court that the motorcycle bearing registration No.AS-23-F-5752 was responsible for the accident and as such, the OP No.3 is not liable to pay the compensation to the claimants as the accident occurred due to reckless driving on the part of the motorcyclist. Besides, the insurer of the motorcycle has not been made a party in the instant case. If the motorcycle was not having any valid insurance coverage at the time of accident, the deceased had no right to ply the said motorcycle on the road as envisaged in the provisions of M.V Act. Further, the PW3 reserves its right to take all defense and protection against the insured/owner of the vehicle if necessary as provided u/s.147, 149 and 170 of the M.V Act. As such, the instant case be dismissed against the answering OP as the vehicle bearing registration No.AS-23-AC-7733 (Bolero Pick Up) in no way responsible for the accident. 7. It is evident that my learned predecessor had framed the following Issues on the basis of aforesaid pleadings of the parties:- I S S U E S (i) Whether deceased Dipak Das died in a motor vehicle accident occurred on , as a result of rash and negligent driving of the vehicle bearing registration No. AS-23-AC-7733 (Bolero Pickup)? (ii) Whether the claimants are entitled to get compensation? If so, to what extent and from whom? 8. The Tribunal has heard the argument advanced by the parties at length and also, deciphered the materials on record for an appropriate conclusion of the instant case.

5 5 9. On the basis of evidence at hand, the issues are adjudicated hereinunder as follow:- ISSUE NO It is evident that PW1 i.e. the claimant No.1, Usha Gogoi Das in her evidence on affidavit has testified in an identical and similar manner as that of the contents of her claim petition and as such, the evidence on affidavit is not repeated here for sake of brevity. In cross-examination, the PW1 has testified that she has not submitted the RC of the aforesaid motorcycle of the deceased i.e. her husband although he was the owner of the said motorcycle. She has not impleaded the insurer of the motorcycle a party in the instant case. The PW1 further testified that her husband was a casual worker in the Department of Power, Office of the Assistant Engineer (E), Electrical Sub- Division at Tezu in the State of Arunachal Pradesh. His job was a temporary one and as such, her husband used to get wages and not salary from the said Department. The age of her husband was about 41 years when the accident occurred. The Ext.6 i.e. the income certificate of the deceased, which was obtained from the aforesaid Department after his death. 11. The PW2 is Bapan Das and he has testified that he was an eye witness to the accident that occurred on at about 8:00 P.M on National Highway No.38, near Nirupama Oil Depot. He saw motorcycle bearing registration No.AS-23-F-5752 was driven by Dipak Das at the material time and after filling petrol in his bike, he was moving towards his residence. At that moment the vehicle bearing registration No.AS-23- AC-7733 coming from opposite direction hit the motorcycle and on impact, Dipak Das died on the spot. The accident occurred due to rash and negligent driving on the part of driver of vehicle bearing registration No.AS-23-AC In this regard a case was registered against the driver of the Bolero Pickup vehicle at Digboi PS. The PW2 has emphatically testified that the deceased was an electrician at the Office of the Assistant Engineer (E), Department of Power, Electrical Sub-

6 6 Division at Tezu in the State of Arunachal Pradesh. In cross-examination, the PW2 has testified that he knew the deceased from his childhood as he was his neighbour. The accident occurred in front of Nirupama petrol depot when the deceased was just approaching N.H-38 after filling petrol in his bike. At the time of accident, the PW2 was at the aforesaid petrol depot and the National Highway was about 100 ft. away from the depot. 12. The PW3 is Ramen Ch. Roy, the Jr. Engineer (Electrical) in the Office of the Assistant Engineer (E), Tezu, Electrical Sub-Division, Department of Power, Arunachal Pradesh. The PW3 has testified that Dipak was working as a skilled worker in his aforesaid offence since and was drawing wage of Rs.6,800/- per month prior to his death. The Ext.6 is the wage certificate and Ext.6(1) is the signature of Allen Enang, The Assistant Engineer(E), Tezu Electrical Sub-division, Department of Power, Tezu. In cross-examination, the PW3 has testified that he knew the deceased and he used to earn Rs.6,800/- as monthly wages from his department. 13. It is apparent from the scenario of the place of occurrence that the offending vehicle hit the motorcycle when it was just approaching the National Highway after filling petrol from a nearby petrol depot. As such, it seems that the motorcycle was in slow speed and did not yet pick up the speed after filling petrol in his bike. Therefore, the offending vehicle appears to be on high speed, i.e. above the normal speed and as a consequence, hit the motorcycle by causing instantaneous death to Dipak Das. In other words, it can be said that the speed of the vehicle was high, which was moving on the National Highway and as such, it could not control its speed and knocked down the motorcyclist, who was coming from opposite direction. Had the offending vehicle been in normal speed it could have easily averted the collision with the motorcycle by manoeuvring and deviating the vehicle in safe direction so that it did come in contact with the vehicle. It is found that the offending vehicle veered off from its normal path and knocked down the

7 7 motorcyclist as the driver could not control the speed. As such, it is crystal clear that the offending vehicle was driven in a reckless, rash and negligent manner, which culminated in the accident. On the contrary, the rash and negligent driving on the part of deceased has not at all been come out due to dearth of evidence in this regard. As the OPs have not presented any evidence as such, the rash and negligent driving on the part of the motorcyclist has not emerged at all. Further, the offending vehicle is a much lager vehicle than a motorcycle and as such, the offending vehicle should have been driven in a normal speed to avoid any collision with the motorcycle. As such, it has percolated that the offending vehicle was not driven within the speed limit as prescribed for driving on National Highways. Besides, it is apparent that the motorcycle had just reached the N.H and the offending vehicle veered off and hit the bike. Therefore, it is found that the motorcycle was in no way responsible for the accident as it was just touched the National Highway, when it was hit. Further, from Exhibits 1 and 2, it is obvious that the driver of the offending vehicle was booked for rash and negligent driving by the law enforcing authority. 14. In view of foregoing evaluation of evidence at hand, it has precipitated that the offending vehicle was driven in a rash and negligent manner culminating in the accident. As such, the instant issue is decided in affirmative. ISSUE NO It is evident that the vehicle bearing registration No.AS-23- AC-7733 was duly insured with OP No.3 i.e. the Cholamandalam MS General Insurance Company Ltd bearing Policy No. 3379/ /000/00, which was valid from to midnight. From Ext.4 i.e., the Accident Information Report (Form No.54), it is obvious that the accident occurred on at about 8:00 P.M on National Highway No.38, near Nirupama Oil Depot, as such it is evident that the accident occurred within the validity period of the insurance policy of the offending vehicle. From the photostat copy of the driving licence of the deceased, it has emerged that his date of birth is shown as and as such, his age was about 40 years and 7 months when

8 8 the accident occurred on Therefore, the Tribunal is of the opinion with the multiplier should be 14 as quoted in the case of 2009 ACJ 1298, Sarla Verma -Vs- Delhi Transport Corporation and hence, the said multiplier can be applied in the instant case. The amount of compensation so arrived in the instant case of fatal accident claim, the same is reduced by 1/3 in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. As Ext.6, i.e. the monthly income certificate of the deceased seems to be quite authentic by considering the fact that the same was issued by a competent authority. 17. The claimants are entitled to get the following award of compensation as calculated and computed on different heads on the basis of evidence on record as well as according to the Second Schedule of the M.V. Act. From the second schedule of the M.V. Act in a fatal accident case, the claimant is entitled to get the following award as compensation and accordingly, the award is computed in the following scale. Rs.6,800/- X 12 =Rs.81,600/- X 1/3 =Rs.27,200/- =Rs.81,600/- - Rs.27,200/- X 14 =Rs.54,400/- X 14 = Rs.7,61,600/- The claimant No.1 is also entitled to get funeral expenses to the tune of Rs.2,000/- and loss of consortium of Rs.5,000/- on account of death of her husband. Thus, the total compensation would be Rs.7,61,600/- + Rs.7,000/- = Rs.7,68,000/- (rupees seven lacs sixty eight thousand)-. The above amount is awarded to the claimant on the death of her husband due to the aforesaid vehicular accident. 18. In view of the outcome of the aforesaid issues, it has precipitated that the claimants are entitled to get the award of compensation as calculated and computed above, under the law and equity. Accordingly, the instant issue is decided.

9 9 O R D E R In the result, the claim petition is allowed and the total amount of compensation to the tune of Rs.7,68,000/- (rupees seven lacs sixty eight thousand) so computed on different heads is awarded to the claimants. The O.P. No.3, i.e. the Cholamandalam MS General Insurance Company Ltd. is directed to pay the said amount of compensation to the claimants with 6% interest from the date of filing of the claim petition. Accordingly, this MAC case is disposed of on contest. Given under my hand and seal of this Tribunal on this the 30 th day of May, Dictated and corrected by me. (S. Das) (S. Das) Addl. Member-1, Addl. Member-1, M.A.C. Tribunal, Tinsukia M.A.C. Tribunal, Tinsukia