IN THE COURT OF MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL : LAKHIMPUR : AT NORTH LAKHIMPUR.

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1 IN THE COURT OF MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL : LAKHIMPUR : AT NORTH LAKHIMPUR. 1 M.A.C.T. Case No.71/2009. P A R T I E S Smti Momi Baruah.... Claimant. -versus- 1. Branch Manager/ Divisional Manager. Bajaj Allianz General Insurance Co. Ltd. Guwahati. 2. General Manager, Bajaj Allianz General Insurance Co. Ltd. Head Office, GE Plaza, Airport Road, Yerwada, Pune.... Opposite Parties. PRESENT : Sri P.K.Khanikar, Member, M.A.C.T. Lakhimpur, North Lakhimpur. A P P E A R A N C E Sri D.Borgohain & Smt Mridusmita Saikia, the learned Advocates for the claimant. Sri S. Sarkar, the learned Advocate for the OP Nos.1 and 2. Date of argument : and Date of Judgment : J U D G M E N T 1. This motor accident claim case has arisen out of an application submitted by Claimant, Smti Momi Baruah against the OPs claiming compensation of an amount of Rs.2,20,000/- only u/s 163(A) of the M.V. Act, for the death of her husband, Pradip Baruah in a road traffic accident that took place on at about 11 Pm at Milanpur under Boginadi Police Station. 2. The case of the claimant, in brief, is that on while her husband, Pradip Baruah was proceeding towards Gogamukh from his residence situated at Nakari, North Lakhimpur by driving his Winger vehicle bearing registration No.AS.07.C/0119, the vehicle met with an accident near Subansiri College at Milanpur on NH-52 when it slipped on the road and dashed against a road side tree, as a result of which her

2 2 husband died on the spot. For the accident, Boginadi PS Case No.18/2008 u/s 279/ 304(A) IPC was registered. Hence, the claim. 3. OP No.1, the Branch Manager/ Divisional Manager of Bajaj Allianz General Insurance Company Ltd. and the OP No.2, the General Manager of the said Company being the insurer of the vehicle bearing registration No.AS.07.C/0119 (Winger) contested the case by filing joint written statement, wherein they denied the statements made in the Claim application relating to the manner in which the accident took place, and also stated that the claim for the death of a owner / driver of a vehicle under P.A. coverage can not be settled in the Motor Accident Claims Tribunal and the nominee or legal heir of the deceased is to apply directly to the Insurance Company in the proper format for settlement of the claim. It is also submitted that the claim of the claimant is excessive and baseless. Under the premises, the OPs pray for exempting them from the liability of making payment of any amount as compensation. 4. Upon the pleadings of the parties, the following issues were framed for just decision of the case : 1) Whether the accident took place due to rash and negligent driving of the vehicle bearing registration No.AS.07.C/0119 (Winger) causing death to Pradip Baruah? 2) Whether the claimant is entitled to get any compensation as prayed for? 3) What other relief / reliefs the parties are entitled to? 5. In order to substantiate the claim, Two witnesses including the Claimant have submitted their evidence on affidavit and they were cross examined on behalf of the OPs. No witness was adduced from the side of the Opposite Parties. The claimant also exhibited the Accident Information Report in Form 54 as Ext.1, the certified copy of the Chaoldhowaghat Police Out Post GD Entry as Ext.2 and the certified copy of the Post Mortem Report of the deceased as Ext I have heard argument of the learned advocates for the claimant and the Opposite Parties, Insurance Company, and also perused the evidence on record.

3 3 7. To arrive at a just decision of the case the following issue-wise discussion is taken up. ISSUE NO.1 : 8. To decide the above issues, we have the evidence of Two PWs. Both of them are not eye witnesses of the accident in question. PW.1, claimant, Smti Momi Baruah also does not disclose from whom she came to know about the circumstance under which the fatal accident took place. As such, her evidence is nothing more than hearsay. PW.2, Sri Raju Dhan stated that he was the handyman of the vehicle involved in the accident, and on the day of occurrence i.e., at about 9 Pm, he alongwith the deceased, who was the owner-cum-driver of the said vehicle reached home after taking dinner in a hotel, but on the next day morning, while he went to the house of the deceased, Pradip Baruah, he came to know that Pradip Baruah died on the previous night when he met with an accident while going to Gogamukh. During cross examination of these two witnesses, the OPs, Insurance company failed to shake the credibility of these witnesses in any manner whatsoever. From Ext.1, Accident Information Report in Form-54 and Ext.3, certified copy of the Post Mortem Report, it also appears that the deceased, Pradip Baruah died in the motor vehicular accident that took place on at about 11 Pm at Milanpur near Subansiri College under Boginadi PS. 9. It becomes evident that both PW.1 and PW.2 had not seen the accident. In such a situation, this hardship can be avoided by application of the maxim res ipsa loquitor. The principle is that there are certain happenings which do not occur normally unless there is negligence. In the instant case, it appears that the accident occurred on NH-52, which is wide enough. The deceased was the owner -cum- driver of the vehicle in question at the time of accident, so there is none to explain the circumstance under which the accident took place. 10. In that view of the matter, I am constrained to hold that the fatal accident took place due to negligent driving of the vehicle. Accordingly, there remains no doubt that deceased, Pradip Baruah, the husband of the Claimant died as a result of the motor accident that took

4 4 place on at about 11 Pm at Milanpur near Subansiri College on NH-52 under Boginadi PS, due to rash and negligent driving of the offending vehicle bearing registration No.AS.07.C/ Accordingly, this issue is answered in affirmative. ISSUE NOs. 2 & Both these issues are taken up together for discussion as a matter of convenience and brevity. 13. The learned counsel for the Opposite Party, Insurance Company has submitted that as in the instant case, the deceased happened to be the owner cum driver of the ill-fated vehicle and thereby not a third party, the claim set up by the wife of the deceased being his legal heir, is not entertainable in Motor Accident Claim Tribunal. According to the learned counsel, the Tribunal set up for trying Motor Accident Claim cases u/s 165 of the Motor Vehicle Act, 1988, can take up claims in respect of the accident involving death, or bodily injury to persons arising out of use of motor vehicle or damages to any property of a third party. It is also submitted that as the deceased is not third party to a contract of insurance of the ill-fated vehicle, the Tribunal can not settle the claim for his death and the claimant may claim compensation directly to the O.P. Insurance company as the death claim is covered under Personal Accident coverage. 14. In support of the above contention, the learned counsel relied on a decision of the Honourable Gauhati High Court passed in connection with Case No.CRP. 216/2011 ( Bajaj Allianz General Insurance Co. Ltd. -vs- Smti Smrita Saikia and another). 15. To appreciate the contention of the learned counsel, I have gone through the cited rulings referred to above. In the aforesaid Judgment, it was held - it is settled by this time that when a court or Tribunal is established for a particular purpose that as to act only for the said purpose and not for any other purpose. Now, the question remains that when as per terms of policy an insurer is liable to pay 1 st party risk coverage to the insured as mentioned in the policy, if the deceased is an owner cum driver then in that case how legal heir of the insured will get the benefit of the policy.

5 5 According to this court, the legal heir of the deceased insured has the right to claim insurance coverage as mentioned in the policy to the insurance co-petitioner an the Insurance company is also liable to be discharged its duties as per terms and condition of the policy. As the same is not an issue before this Court, this Court is not expressing any opinion regarding claim of the Respondent claimant before the Petitioner Insurance Company. As the learned Tribunal acted beyond its jurisdiction, there is no other alternative before this Court except to set aside the impugned Judgment dtd However, in this connection, I have gone through the decision of the Honourable Apex Court reported in (2006) 8 SCC 553 ( Dhanraj -vs- New India Assurance Co. Ltd. and anr.), wherein the Apex Court was dealing with a situation where the appellant therein alongwith certain other persons was travelling in his own jeep met with an accident and received injuries. The Claim Petitions were filed seeking compensation from the Insurance company. The Tribunal held that the driver of the jeep was responsible for the accident and in all the Claim Petitions filed by the passengers the Tribunal directed the owner as well as the Insurance Company to pay compensation. While dealing with the Claim Petition filed by the owner, the Tribunal directed the driver and the Insurance company to pay compensation to the appellant. The appeal filed by the Insurance company was allowed by the Honourable High Court, and aggrieved by the same, the Claimant/ owner therein carried the matter to Honourable Apex Court. Analysing the provision of Section 147 of the Motor Vehicle Act, the Honourable Apex Court held in para-8 as under - Thus, an Insurance policy covers the liability incurred by the insured in respect of death or bodily injury to any person ( including the owner of the goods or his authorised representative ) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. Section 147 of the M.V.Act does not require an Insurance company to assume risk for death or bodily injury of the owner of the vehicle.

6 6 17. Further, relying upon the Judgment in Oriental Insurance Company Ltd. -vs- Sunita Rathi reported in (1998) 1 SCC 365, the Honourable Apex Court held that the policy does not cover risk of injury to the owner himself, and as such the Insurance Company is not liable to indemnify the owner. It was held that the owner of the vehicle can only claim compensation provided a Personal Accident Insurance has been taken out and in the absence of such policy, the Insurance company is not liable to indemnify the owner. 18. The Honourable Apex Court in Oriental Insurance Company Ltd. -vs- Jhuma Saha and ors. (2007) 9 SCC 263 reiterated the said principle. In the said case, the deceased was the owner of the insured vehicle and the accident took place while he was driving the said vehicle. The Tribunal on an application u/s 166 of the M.V. Act awarded compensation holding that since the vehicle being insured and an additional premium being paid for death of the driver or conductor, the liability was covered by the Insurance policy. On appeal preferred by the Insurance company, the Honourable High Court held that in view of decision of the Honourable Apex Court in Nicolletta Rohtagi in 2002 ACJ 1950 (SC), the appeal was held to be not maintainable, and aggrieved by the same, the Insurance company preferred an appeal before the Honourable Apex Court. The question that fell for decision was whether jurisdiction of the Tribunal was restricted only to third party claim. Relying upon various Judgments including Dhanraj case (Supra), the Honourable Apex Court held that in view of the fact that additional premium was not paid in respect of the risk of death or bodily injury to the owner of the vehicle, Section 147 (1)(b) of the M.V. Act, which in no uncertain terms covers the risk of a third party only, allowed the appeal filed by the Insurance company. 19. From the above Judgment of the Honourable Apex Court, it becomes abundantly clear that Section 147 of the M.V. Act does not contemplate coverage of any risk of bodily injury or death to the owner of the vehicle unless such risk is covered by the policy. Keeping in view the above referred Judgment of the Honourable Apex Court with all respect and humility, I am of the opinion that the Judgment of the Honourable Gauhati

7 7 High Court in the case of Bajaj Allianz General Insurance Company Ltd. - vs- Smti Smrita Saikia and another, is not applicable in the instant Claim case. In the case in hand, admittedly, the Insurance policy of the offending vehicle covers the risk of owner and to that effect a separate premium of Rs.100/- only was paid. Consequently, the legal representative of the deceased owner has the right to claim compensation for the death of the deceased, which arose out of the use of the motor vehicle in question, and the Motor Accident Claims Tribunal has jurisdiction to entertain the Petition for just compensation filed by the legal representative of the deceased. The Claim Tribunal have jurisdiction to entertain all the claims for compensation in respect of the accident involving death or bodily injury to any person where the accident is caused by the use of motor vehicle or use of motor vehicle contributes whether by itself or alongwith some other joint tort feasors to the accident. 20. Now, to ascertain the quantum of compensation entitled by the claimant, we have seen that PW.1, claimant, in her claim application, stated that her deceased husband, Pradip Baruah used to earn more than Rs.10,000/- only per month by running his Winger vehicle involved in the accident. But, the claimant had not produced any document in support of her claim regarding monthly income of her deceased husband. Be that as it may, in absence of any concrete evidence, keeping in view the avocation pursued by the deceased it would not be unreasonable to hold that the monthly income of the deceased was approximately Rs.3,000/- only at the time of his death. Accordingly, the monthly income of the deceased at the time of his death is held to be Rs.3,000/- per month. 21. If we take the monthly income of the deceased to be Rs.3,000/- only, then his annual income is found to be Rs.36,000/- only. If we deduct 1/3 rd of the said amount to be personal expenses of the deceased, then the annual dependency would be Rs.24,000/- only. The claimant in her claim application stated that her deceased husband was aged about 41 years at the time of his death. Ext.2, the certified copy of the Post Mortem Report of the deceased also reflects that the deceased was aged about 41 at the time of his death. So, as per Second schedule of the

8 8 M.V.Act, the appropriate multiplier in this case would be '15'. Now, if we multiply the annual dependency, Rs.24,000/- only, by the multiplier, '15', then the total loss of dependency would be Rs.3,60,000/- only, to which amount the claimant is found entitled. 22. The claimant is also found entitled to an amount of Rs.2,000/- only for funeral expenses of the deceased, and another sum of Rs.5,000/- only for loss of consortium. 23. Thus, in total, the claimant is entitled to an amount of Rs.3,67,000/- (Rupees Three Lakhs Sixty Seven Thousand) only, as compensation for the death of her deceased husband in the road traffic accident in question. 24. From the evidence of the claimant, it appears that the claimant is having her mother-in-law i.e., mother of the deceased and one minor child of the deceased alive, and as such each of them will get 1/3 rd of the above amount of Rs.3,67,000/- only found due to the claimant as compensation. 25. The Bajaj Allianz General Insurance Company Ltd. represented by the OP Nos.1 and 2 being the insurer of the said vehicle are liable to make payment of the compensation amount found due to the claimant as the Insurance policy in question covers the risk of deceased, the owner of the vehicle. Though, the claimant submitted her Petition for compensation u/s 163(A) MV Act, yet to my considered view as the deceased was not a third party, said Section will not be attracted, rather Sec. 166 of the M.V. Act covers the claim of the claimant on the facts and circumstances of the case. 26. Accordingly, both these issues are answered. O R D E R 27. In view of my decision arrived at on the issues, the OP No.1, Branch Manager/ Divisional Manager of Bajaj Allianz General Insurance Company Ltd., admittedly, being the insurer of the vehicle bearing registration No. AS.07.C/ 0119 is directed to make payment of Rs.3,67,000/- (Rupees Three Lakhs Sixty Seven Thousand ) only, as compensation to the claimant within a period of two months from the date

9 9 of this award, failing which 6% p.a will accrue to the awarded amount till realisation. The claimant is directed to deposit the 1/3 rd of the awarded amount as share to be paid to the mother of the deceased, on receipt of the awarded amount from the Opposite party. 28. This MACT case stands disposed of accordingly. 29. Both the parties will bear their respective costs. 30. Let a copy of this Judgment be forwarded to the OP No.1 for compliance. Given under my hand and seal of this Tribunal on this 20 th day of December, Dictated & corrected by me - (P.K.Khanikar) Member, M.A.C.T. Lakhimpur, North Lakhimpur. (P.K.Khanikar) Member, M.A.C.T. Lakhimpur, North Lakhimpur. Transcribed & typed by- S.Kshattry, Stenographer.

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