IN THE COURT OF MEMBER MOTOR ACCIDENT CLAIM TRIBUNAL, NAGAON (ASSAM) M.A.C. Case No.136/12

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1 IN THE COURT OF MEMBER MOTOR ACCIDENT CLAIM TRIBUNAL, NAGAON (ASSAM) M.A.C. Case No.136/12 Md. Sundar Ali : Claimant. S/O Lt. Malu Mia (sheikh) -Vs- (1) Sri Amit Agarwal (2) Md.Rajak Ali and (3) United India Ins. Co. Ltd., Present: Smti Selina Begum, : Opp. Parties. Member M.A.C.T., Nagaon. Advocate for the claimant : Mr. A.Rahman. Advocate for the Ins. Co. : Mr. R.K.Dey. 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 Md. Sundar Ali 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 4 a.m., the claimant was proceeding towards Guwahati from Samaguri along with vegetables which were loaded in the vehicle bearing

2 registration no.as-14/c-0443 (Tata Mobille 207 DI) to sale in the market at Guwahati. The claimant was travelling in the vehicle as the owner of the goods. As soon as the vehicle reached near Saragaon on N.H.Way 37 the driver of the vehicle applied hard brake as the result of which the vehicle turned turtle on the road side. Immediately after the accident the claimant was brough to B.P. Civil Hospital, Nagaon but seeing the critical condition he was referred to GMCH, Guwahati but instead of Guwahati the claimant was admitted at Haibargaon Nursing Home and after release from Haibargaon Nursing Home he was taken to GMCH, Guwahati and was treated there as indoor patient. After release from GMCH, Guwahai the claimant was brought to Nagaon and was treated at Kapili Nursing Home as indoor patient from to As the result of the accident the claimant sustained fracture shaft of femur (Rt), comminuted fracture, BBLL multiple fracture of ribs, head and other bodily injuries. It is alleged that the accident took place due to rash and negligent driving of the driver of vehicle bearing registration no.as-14/c-0443 (Tata Mobille 207 DI). On receipt of the notice from the tribunal, the United India Ins. Co. Ltd., 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 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 O.P. No.1and 2 owner and driver of the vehicle inspite of receipt of notice and hence the case proceeded ex-parte against the owner and driver of the vehicle. The following issues are framed for decision:- 1. Whether the claim petition is maintainable? 2. Whether the accident occurred due to rash and negligent driving of the driver of vehicle no. AS-14/C-0443 (Tata Mobille 207 DI)?

3 3. Whether the claimant is entitled to receive compensation and if so to what extent and who is liable to pay the same? DECISION AND REASONS THEREOF Issue No 1 The claimant has filed this claim U/S 166 of the M.V.Act. In the claim petition the claimant impleaded the owner, driver and insurer of the offending vehicle as party to the suit. The evidence of the claimant is that the incident occurred due to rash and negligent driving of the driver of the vehicle no. AS- 14/C-0443 (Tata Mobille 207 DI). As accident is alleged to have occurred due to reckless and negligent driving of the driver of the vehicle no. AS-14/C-0443 (Tata Mobille 207 DI) and as the owner, driver and insurer of the vehicle have been impleaded by the claimant, so as per my opinion the claim petition is maintainable. This issue is decided accordingly in favour of the claimant. Issue No.2 The claimant adduced 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 4 a.m., he was proceeding towards Guwahati from Samaguri along with vegetables which were loaded in the vehicle bearing registration no.as-14/c-0443 (Tata Mobille 207 DI) to sale in the market at Guwahati and when the vehicle reached near Saragaon on N.H.Way 37 the driver of the vehicle applied hard break as the result of which the vehicle turned turtle on the road side. He disclosed that immediately after the accident he was brough to B.P. Civil Hospital, Nagaon but seeing the critical condition he was referred to GMCH, Guwahati but instead of Guwahati he was admitted at Haibargaon Nursing Home and after release from Haibargaon Nursing Home he was taken to GMCH, Guwahati and was treated there as indoor patient. He disclosed that after release from GMCH, Guwahai he was brought to Nagaon and was treated at Kapili Nursing Home as indoor patient from to He disclosed that as the result of the accident he sustained fracture shaft of femur (Rt), comminuted fracture, BBLL multiple fracture of ribs, head and other bodily injuries. It is alleged that the accident took place due to rash and negligent driving of the driver

4 of vehicle bearing registration no.as-14/c-0443 (Tata Mobille 207 DI). He has submitted medical documents from Ext.2 to Ext.29. Defence though cross-examined this witness thoroughly yet could not assail his evidence regarding rash and negligent driving of the driver of the offending vehicle for whose fault the accident happened. The insurance side though took the plea that the accident did not occur due to rash and negligent driving on the part of the driver of the offending vehicle yet could not establish the said fact. Accident information report shows that Raha P.S. G.D.Entry No.597 dated was registered by Raha P.S., regarding the accident caused by the offending vehicle bearing registration No. AS-14/C-0443 (Tata Mobille 207 DI) and Md. Sundar Ali was shown as the ill fated person who sustained injuries due to the accident. The O.P. has failed to rebut the said evidence of the claimant. So, from the above discussion it appears that the accident was caused due to rash and negligent driving on the part of the driver of the vehicle bearing no.as-14/c-0443 (Tata Mobille 207 DI). Accordingly, this issue is decided in favour of the claimant. Issue No.3 Ext.2 the discharge certificate of Haibargaon Nursing Home, Nagaon shows that claimant was admitted into the said hospital on and discharged on for fracture shaft femur (Rt) and comminuted fracture BBLL, multiple fracture rib (Rt) and doctor advised C.T.Scan of Brain and was referred to GMCH, Guwahati for better treatment. Ext.3 the discharge certificate of Kapili Hospital & Research Centre, Nagaon shows that claimant was admitted into the said hospital on and discharged on for one month old communited fracture shoulder joint right femur, fracture BBLL, fracture neck right humerous and head injury. ORIF and K-nail (fracture site) closed IM nailing and doctor advised not to bear weight on both leg, stitch removal, Neurological consultation for head injury, shoulder immobiliation and review after 6 weeks. It appears from the back page of Ext.3 that on patient was referred o

5 GMCH, Guwahati for better treatment. Ext.4 and 5 are examination reports. Ext.6 the X-ray report of Haibargaon Nursing Home, Nagaon dated shows fracture in mid 3 rd of femur with displacement and avulsion of a small fragment. Ext.7 is the X-ray report of Haibargaon Nursing Home, Nagaon dated shows fracture in right acetabular cavity and extending upwards. Ext. 8 X-ray report of Haibargaon Nursing Home, Nagaon dated shows fracture in 2 nd, 5 th, 6 th, 7 th and 10 th ribs of right side. Ext.9 is the examination report. Ext.10 and 11 report of GMCH, Guwahati shows fracture shaft of femur (R), D/E tibia (R), fracture surgical neck of femur. Ext. 14 to 16 are examination reports. Ext.17 and 18 the prescription of Dr.R.K.Khandewal shows pain and swelling on (R) thigh, left thigh, fracture (Rt) femur K-nailing fracture. Ext.19 to 21 are examinations reports. Ext.22 to 25 X-ray reports of Kapili Hospital & Research Centre, Nagaon dated and shows comminuted fracture in head of humerus, comminuted fracture in lower 3 rd of tibia with displacement, fracture in lateral malleolus, fracture in lower half of femur with displacement and avulsion of a fragment, fracture in 5 th to 9 ribs of right side. Ext.27 C.T.Scan of brain shows multiple cerebral contusions with minimal perilesional edema in bilateral high frontal region. Since the claimant sustained grievous injuries in the motor vehicular accident due to fault of the driver of the offending vehicle no.as-14/c-0443 (Tata Mobille 207 DI) so 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. The claimant has stated that as the result of the injuries sustained in the accident he became permanently disabled. He disclosed that at the time of accident he was 42 years old and was doing vegetable business and earned Rs.8,000/- per month. He disclosed that he was examined by District Medical Board and on examination the board found physically handicapped due to chronic osteo arthitis left ankle, left knee, right hip and right knee with 50% disability which is permanent in nature. Ext.65 is the disability certificate.

6 certificate. The claimant examined P.W.2 Dr. Abdul Awal to prove the disability P.W.2 Dr. Abdul Awal testified that the Member of the District Medical Board examined Sundar Ali and found him physically handicapped due to chronic osteo arthitis left ankle, left knee, right hip and right knee with 50% disability which is permanent in nature. He further exhibited Ext.65 as the disability certificate issued by District Medical Board, Nagaon and identified Ext.65(1) as the signature of Chairman of District Medical Board, Nagaon which is known to him. It does not appear from the evidence of the doctor of medical board that any orthopedic expert was present in the board on the date of examination of the claimant so as to give a correct assessment about the disability. Nothing appears form record that fresh X-ray was advised by the board and X-ray was performed just prior to issuance of disability certificate so as to determine the disability correctly. So I am not inclined to accept the percentage of disability as 50 %. However, medical documents shows claimant sustained comminuted fracture in head of humerus, comminuted fracture in lower 3 rd of tibia with displacement, fracture in lateral malleolus, fracture in lower half of femur with displacement and avulsion of a fragment, fracture in 5 th to 9 ribs of right side, ORIF and K-nail (fracture site) closed IM nailing was done. So, I feel it safe to hold the disability as 20%. Now I have to determine what should be the quantum of loss of income. The claimant P.W.1 disclosed that at the time of accident he was doing vegetable business and he earned Rs.8,000/- per month. But no document is produced by him to show that he earned monthly Rs.8,000/- per month. However, as an able bodied man the claimant definitely had earned monthly Rs.3,000/-. The age of the claimant is shown to be 42 years at the time of accident. Taking the monthly income of Rs.3,000/-as base and multiplier 14 as per Sarla Verma's Case

7 reported in (2009) 6 SCC 121 and considering the fact that disability is of 20% the loss of income is held to be 3,000 X 12 X 14 X 20/100 =Rs.1,00,800/-. The claimant is entitled for this amount as loss of income. I have carefully perused the prescriptions and cash memos. On perusal of Ext.42 bill and Ext.50 cash/credit bill it appears that it was already adjusted in Ext.51. So Ext.42 and 50 cannot be counted. It also appears from Ext.49 bill that it was already adjusted in Ext.43. So Ext.49 cannot be accepted. From the remaining cash memos it appears that claimant has expended an amount of Rs.59,797/- for his treatment. So he is entitled to get this amount as pecuniary damages. It appears from the medical certificates that the claimant's sustained comminuted fracture in head of humerus, comminuted fracture in lower 3 rd of tibia with displacement, fracture in lateral malleolus, fracture in lower half of femur with displacement and avulsion of a fragment, fracture in 5 th to 9 ribs of right side. So for pain and suffering due to the accident, an amount of Rs.30,000/- is granted to him. There is also loss of expectation in life for such injury. So for loss of expectancy of life an amount of Rs.7,000/- is added. For loss of amenities of life an amount of Rs.10,000/- is added. The claimant was treated at P.K. Memorial Nursing Home, Nagaon and GMCH, Guwahati for his treatment. He sustained fracture injury at leg and shoulder joint right femur. Definitely one attendant was required at the time of his treatment. So an amount of Rs.5,000/- is added as expenditure for the attendant. The claimant was treated at P.K. Memorial Nursing Home, Nagaon and GMCH, Guwahati for his serious injury. For quick recovery he definitely needed special diet. So an amount of Rs.5,000/- is added as cost of special diet. The claimant went to GMCH, Guwahati entitled to get an amount of Rs.2,000/- as conveyance allowance. for his treatment. So he is

8 The compensation which the claimant's are entitled is assessed as follows:- Sl. No. HEAD OF COMPENSATION GRANTED BY THE TRIBUNAL (i) Medical expenses Rs.59,797/- (ii) Loss of expectation in life Rs. 7,000/- (iii) Loss of amenities in life Rs.10,000/- (iv) Travelling expenditure Rs. 2000/- (v) Loss of income Rs.1,00,800/- (vi) Pain and suffering Rs.30,000/- (vii) Special diet Rs.5,000/- (viii) Cost of attendant Rs.5,000/- TOTAL COMPENSATION AWARDED Rs.2,19,597/- Now the question is who is liable to pay the compensation to the claimant. The learned advocate for the insurance side submitted that the offending vehicle was a good carriage vehicle and the owner has violated the policy condition by allowing passenger to travel in the vehicle. Under the above circumstances he urged to exonerate the insurance company from indemnifying the owner. It is also argued that as the claimant did not sit in the driver's bed and set on the body of the vehicle so he is not entitled to get compensation. The learned counsel for the claimant side on the other hand refuting the above argument submitted that the claimants travelled in the vehicle as owner of the goods (vegetables) which was carried in the good carriage vehicle and hence entitled for compensation from the insurance company. The material portion of the provision contained in Section 147 of the Motor vehicles Act, 1988, as amended by the Motor Vehicles (Amendment) Act, 1994 read as follows: a) Requirements of policies and limits of liability -(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a

9 policy which b) insures the person or classes of persons specified in the policy to the extent specified in Sub-section (2) (i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorized 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 in a public place. So as per the amended act the owner of the goods or his authorized representative would now be covered by the policy of insurance in respect of a goods vehicle. Now it is to be scrutinised whether the claimant travelled in the vehicle as gratuitous passengers or as owner of goods. It is testified by claimant that the accident happened while he was travelling from Nagaon to Guwahati in the vehicle bearing registration no. AS- 14/C-0443 (Tata Mobille 207 DI) with vegetables belonging to him. He during cross admitted that he paid Rs.2600/- as cost of carrying the goods in the vehicle. So he claimed that he was travelling as owner of the goods (vegetables) carried in the goods carrying vehicle. The said evidence of the claimant could not be dislodged by the insurance inspite of elaborate cross-examination. Insurance side could not adduce any evidence to show that the claimant did not travel in the vehicle as owner of the goods and that he was a gratuitous passenger. The evidence of the claimant established the fact that the claimants travelled in the vehicle as owner of the goods. Under the above circumstances it can be safely held that the claimant is not gratuitous passengers and that he travelled in the offending vehicle which is a good carrying vehicle as owner of the goods.

10 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-14/c-0443 (Tata Mobille 207 DI). 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 /TV/T/10 which is valid upto and was issued by DTO Tuensang, Nagaland. 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-14/C-0443 (Tata Mobille 207 DI) was insured with United India Ins. Co. Ltd., vide policy No /31/10/01/0000/5626 which was valid upto Accident happened on Hence, the United India Ins. Co. Ltd., is liable to pay compensation to the claimant. AWARD AND ORDER Therefore, it is ordered that the United India Ins. Co. Ltd., is to make payment within 2 months of Rs.2,19,597/- only with 7% per annum from the date of filing the claim petition. The claimant shall also be entitled to Rs.1,000/- 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 25 th day of March/2015. Dictated & corrected by me:- Member, M.A.C.T., Nagaon. Member, Motor Accident Claim Tribunal, Nagaon(Assam).

11 A P P E N D I X Claimant examined 1) P.W.1 : Md. Sundar Ali 2) P.W.2 : Dr. Abdul Awal Opp.Party examined Nil Claimant exhibited 1) Ext.1 : Accident Information Report. 2) Ext.2 to 29 : Medical documents. 3) Ext.30 to 61: Cash memos. 4) Ext.62 : Disability certificate. Opp.party exhibited Nil Member, Motor Accident Claim Tribunal, Nagaon(Assam)

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