IN THE MOTOR ACCIDENT CLAIMS TRIBUNAL SONITPUR: TEZPUR. MAC Case No. :- 80/2010

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1 Page 1 of 8 IN THE MOTOR ACCIDENT CLAIMS TRIBUNAL SONITPUR: TEZPUR MAC Case No. :- 80/2010 Present : Mridul Kumar Kalita, AJS Member, MACT, Sonitpur/ District Judge, Sonitpur Tezpur Claimants Opposite Parties 1. Md. Ali Asgar Son of late Muktar Mokhar Hussain, Resident of Adabari Tea Estate, P.s.- Rangapara, PO Balipara, Dist. Sonitpur, Assam -Versus- 1. Manager, Phulbari Tea Estate, (Owner of Vehicle No AS , Phulbari Tea Estate.) 2. Sri Moti Ram Nag, (Driver of Vehicle No AS , Phulbari Tea Estate) 3. The Branch Manager, National Insurance Co.Ltd Tezpur Branch, Main Road Po- Tezpur, Mouza Mahabhairab,District- Sonitpur, Assam (Insurer of the Vehicle No- AS-12C/ 0191[Motorcycle]) Counsel for the Claimant : Mr. A. Bhuyan Advocate Counsel for Opposite Parties : Mr S.K. Singh, Advocate (for Insurance Company) Mr A.K.Goswamil, Advocate ( for Opposite Parties No.1 & 2) Date of hearing : 21/05/2015 Date of Judgment : 09/06/2015 MAC Case No. 80 of 2010 Page 1

2 Page 2 of 8 J U D G M E N T 1. This instant claim petition has been filed by the claimant, Md. Ali Asgar, u/s 166(1)(a) of the Motor Vehicles Act, 1988 claiming compensation for the injuries sustained by him, in an accident, involving Maruti Gypsy NO. AS-12/9945 and Rajdoot Motor Cycle No. ASD The case of the Claimant, in brief, is that,on 20/09/2009 he along with his wife (pillion rider) were proceeding from Rangapara Town towards his home, at Adabari Tea Estate, in his Rajdoot Motor cycle bearing registration No. ASD/8364, at a normal speed and he was on the left side of the road. When they reached Amaribari, at about 5 p.m., a Maruti Gypsy vehicle bearing Registration No AS -12/9945 belonging to the Escort Party of the General Manager, Phulbari Tea Estate, driven by OP No. 2 in a very rash, negligent and careless manner and also in an excessive speed, suddenly, hit the motor cycle of the claimant from behind. As a result of the said accident, the claimant and his wife fell down on the road side and sustained injuries on their persons. The claimant sustained grievous injuries on various parts of body including multiple fractures on his right leg. The claimant was admitted at Kanaklata Civil Hospital, Tezpur on the same day, but due to the serious nature of injuries, he was referred to Guwahati for better treatment and he was admitted in Pratiksha Hospital, Guwahati on and he stayed there as an indoor patient for several days. An operation was also performed on his fractured right leg. Thereafter, he was in a bed-ridden condition for more than a month. The Claimant has averred, in his claim petition, that he visited Guwahati twice for his check up and he is still undergoing treatment and has spent about 1,50,000/- till now. The claimant has also stated, in his claim petition, that he is an employee of Adabari Tea Estate under Mcleod Russel India Limited, working as an Electrician and used to earn Rs. 8,277/- only per month, but after the said accident, he has been unable to continue his work. As the claimant is the only earning member of his family, his family is facing severe hardship in day to day life. The claimant has prayed for a just and adequate compensation for the injuries sustained by him and also for the pain and suffering and the expenses incurred on treatment. 3. The Opposite Party No.1, the owner of the vehicle No. AS-12/9945, Phulbari Tea Estate has filed written statement, inter-alia, stating that the Opposite party No.2 drove the vehicle with due care and caution blowing horn about the presence of the vehicle on the MAC Case No. 80 of 2010 Page 2

3 Page 3 of 8 public road and therefore, the Opposite Party No. 1 and also the Opposite Party No. 2 are not liable and responsible for the alleged road traffic accident on the public road. Opposite Party No. 1 also denied that the driver of the vehicle No. AS-12/9945 drove the said vehicle with rash and negligent manner, endangering human life and suddenly knock down the claimant, thus the accident occurred. The Opposite Party No.1 has also stated that the vehicle No. AS-12/9945 was having an Insurance cover of the National Insurance Co. Ltd. Tezpur, Branch, Tezpur vide Policy No /31/09/ which was valid from 01/04/2009 to 31/03/ The Opposite Party No 2, Sri Mati Ram Nag, who was the driver of the vehicle No. AS-12/9945, denied the statements made by the claimant in Paragraphs Nos. 1,2,3,4,5,6,7 & 8 of the claim petition and has stated that he has valid driving license bearing No. 8361/NL/94/Prof issued by the competent Regional Transport Authority constituted under the Motor Vehicle Act. It is also stated that the Opposite Party No. 2 drove the vehicle with due care and caution blowing horn, about the presence of the vehicle, on the public road and, therefore, Opposite Party No. 2 was not at all liable and responsible for the alleged road traffic accident on the public road. It is also stated that the alleged accident took place entirely due to the fault and/or negligent act of the claimant himself who drove his bike without wearing a helmet. The Opposite Party No. 2 has also stated in his written statement that the said vehicle No. AS -12/9945 was comprehensively insured at the relevant time of the alleged accident with National Insurance Co. Ltd. Tezpur, Branch, Tezpur, Policy No /31/09/ for the period to covering the date of accident. 5. The Opposite Party No. 3, the Insurer of the vehicle, in its written statement, denied all material averments of the claim petition and stated, inter-alia, that the amount of compensation claimed by the petitioner is highly exaggerated and speculative. It is also stated that in the written statement that whether the alleged accident took place due to gross negligence of the driver of the offending vehicle bearing registration No. AS -12/9945 are all matters of facts which the claimant is bound to prove by cogent and reliable evidence. It is also stated that even assuming, though not admitting, that there was an accident due to the negligence of the driver of the vehicle No. AS-12/9945 (Maruti Gypsy), it is submitted that the same was not direct and proximate cause of the accident and as such MAC Case No. 80 of 2010 Page 3

4 Page 4 of 8 the claimant is not entitled to any compensation. The negligence driving of the claimant cause the said accident and as such the claimant is not entitled to any compensation. 6. On the basis of pleadings of the parties, my learned predecessor-in-office framed the following issues for adjudication:- ISSUES 1) Whether the alleged accident took place due to rash and negligent driving by the driver of the vehicle No. AS-12/994 (Maruti Gypsy) or the driver of ASD-8364 (Rajdoot Motor Cycle) or whether both the drivers are equally responsible for the accident? 2) Whether the claimant is entitled to any compensation, if yes, what will be the quantum of compensation and by which of the respondents this amount shall be paid? 7. During enquiry, the claimants examined three witnesses namely, the claimant himself Md. Ali Asgar as CW 1 (Claimant s Witness No.-1), Md. Ajmal Khan as CW 2 (Claimant s Witness No.-2 )and Sri Ram Nath as CW 3 (Claimant s Witness No.3). The CW 1 also exhibited Accident Information Report as Ext. 1, Discharge certificate from Kanaklata Civil Hospital as Ext. 2, Discharge certificate from Pratiksha Hospital, Guwahati as Exhibit 3, five Medical prescriptions and reports as Ext. 4(1) to 4(5), various cash memos and prescriptions as Ext. 5(1) to 5(32), Bills for taxi fare as Ext. 6(1) to 6(6), medical certificate of Pratiksha Hospital, Guwahati as Ext. 7, Certified copy of FIR as Ext. 8, Certified copy of Charge sheet as Ext. 9, certified copy of MVI Report as Ext. 10 and certified copy of seizurelist as Ext. 11. The Opposite Party did not adduce any evidence. 8. I have carefully perused the entire materials brought on record, heard both sides. Both the issues are taken up together for discussion and decision, for the sake of convenience and brevity. 9. In his evidence on affidavit CW 1 has reiterated the facts which he has stated in his claim petition. The claimant is an employee of Adabari Tea Esate under Mcleod Russel India Ltd., working as an Electrician and used to earn Rs. 8,277/- only per month, but after the said accident the claimant has been unable to continue his work. As the claimant is the only earning member of his family, the family is facing severe hardship of life. Thus, the MAC Case No. 80 of 2010 Page 4

5 Page 5 of 8 claimant prayed for just and adequate compensation from the Hon ble Court. During crossexamination, also he has stated that one Maruti vehicle of Phulbari T. Estate dashed his motorcycle from behind. He has also stated that the insurance cover of his motorcycle was lapsed on the day of accident. CW 1 was put many suggestive questions by learned counsel for the Opposite Party, however, all were answered in negative by him. 10. CW 2 Md. Ajmal Khan has stated in his evidence-in-affidavit that on the day of accident he was proceeding towards his home on foot on the Amaribari- Rangapara Road. At that time one Rajdoot motorcycle came from behind and crossed him, suddenly one Maruti vehicle of Phulbari T. Estate driven by its driver, in a rash and negligent manner, and at a high speed hit the said motorcycle from behind at a great impact.he has also stated that the accident took place in front of him as a result of rash and negligent driving of the driver of the Maruti Gypsy vehicle. He has further stated after the accident, drive of the Maruti vehicle bearing registration No. AS -12/9945 did not stop the vehicle and fled away from the place of occurrence. He also reiterated the fact stated in the claim petition regarding the manner in which the accident occurred. He has further stated that immediately, after the accident, nearby people rushed to the spot to helped the injured and they sent the claimant and his wife to Kanaklata Civil Hospital, Tezpur and the claimant sustained grievous multiple injuries on various parts of body including fracture injuries on his right leg. The wife of the claimant also sustained injuries in the said accident. During crossexamination also CW-2 reiterated what he has stated in his evidence on affidavit. He stated that the motorcycle was moving at the speed of about 30 kmph and the Gypsy was moving at the speed of about 60 kmph. He has also deposed that immediately after the accident he informed the officer in-charge of Rangapara police station or telephone. He was put a specific suggestion by learned counsel for the Opposite Parties that he did not see the accident, to which he answered in negative. Many other suggestive questions were put to him by learned Counsel for the opposite parties, however, all were answered in negative by him. 11. CW 2 Sri Ramnath Nath has also deposed, in his evidence-in-affidavit, that on the day of accident he was proceeding towards his home on foot on the Amaribari- Rangapara Road. At that time one Rajdoot motorcycle came from behind and crossed him, suddenly one Maruti vehicle of Phulbari T. Estate driven by its driver, in a rash and negligent manner, MAC Case No. 80 of 2010 Page 5

6 Page 6 of 8 and at a high speed hit the said motorcycle from behind at a great impact. He has reiterated what has been stated by other claimant s witnesses as regards the manner in which the accident happened. During cross-examination, he has deposed that at the time of accident he was working on the Road and he was a Cart puller by profession. He was put other suggestive questions by learned Counsel for the opposite parties, however, all were answered in negative by him. 12. On perusal of Ext. 1, it appears that at the time of accident, i.e., on 29/09/209 at about 5 pm, the vehicle No. AS-12/994 (Maruti Gypsy) as insured with the National Insurance Co. Ltd. (OP No. 3 of this case) with Policy No /31/09/ and the driver of the said vehicle namely Sri Moti Ram Nag was having a valid driving license. It also appears that a Rangapara P.S. Case No 175/09 u/s 279/338 IPC has been registered in connection with this accident. 13. Now, considering the evidence of CW 1, CW 2 and CW 3 which, more or less, remained unshaken during cross-examination, as well as considering the Accident Information Report i.e. Ext. 1 submitted by the O/C of Rangapara Police Station, it is not difficult to arrive at the conclusion that vehicle No. AS-12/994 (Maruti Gypsy) was involved in the accident. It also appears from entry in column No. 4 of the Accident Information Report as well as from the testimonies of CW 1, CW 2 and CW 3 that the claimant Md. Ali Asgar suffered from injuries in the said accident. From the evidence adduced, it appears that the claimant has established the fact of the accident involving vehicle No. AS-12/994 (Maruti Gypsy) wherein the claimant sustained injuries. It is also evident from the oral testimony of the claimant s witnesses that the motorcycle on which the claimant was riding was hit from behind at a high speed by the vehicle bearing No. AS-12/994 (Maruti Gypsy). It also appears that the motorcycle was on going on the left side of the road at a normal speed and it was hit by the Maruti Gypsy vehicle all on a sudden. Charge sheet under section 279/338 of the Indian Pendle Code has also been laid against the driver of the offending vehicle. Said charge sheet has been exhibited as Exhibit 9. Though, it is stated that the claimant was not wearing a helmet and therefore he was also negligent, however, the injuries suffered by the claimant where not in the head region rather the fracture was of lower leg, therefore, negligence on the part of the claimant in not wearing the helmet has not contributed to the injury suffered by him in the accident. The fault of the driver of the Maruti Gypsy vehicle is MAC Case No. 80 of 2010 Page 6

7 Page 7 of 8 apparent from the evidence on record. Therefore, the claimant is entitled to get compensation u/s 166(1) (a) of the M.V. Act. The fact that the vehicle bearing No.- AS- 12/994 (Maruti Gypsy) was insured with the Opposite Party No.3, the National Insurance Co Ltd, is not in dispute. As the offending vehicle bearing No vehicle No. AS-12/994 (Maruti Gypsy) was insured with Opposite Party No. 3, hence, the Opposite Party No. 3, namely, National Insurance Co. Ltd. is liable to pay the compensation, computed herein below, to the claimant. 14. The claimant has exhibited vouchers amounting to approximately Rs. 68,760/-. Claimant is entitled to the said amount. Besides the pecuniary damages claimant is also entitled to some amount of non-pecuniary damages on account of pain, shock and suffering. Apparently the claimant suffered fracture of tibia and fibula with multiple lacerations, causing severe pain, shock and suffering, therefore, in my considered opinion Rs.10,000/-would be a just amount against non-pecuniary damages on account of pain, shock and suffering. Though, the Claimant has stated that he works as an electrician in Adabari Tea Estate and his monthly salary is Rs. 8277/-he has not submitted any salary certificate, however he appears to be a skilled worker and hence his salary is taken to be Rs. 5000/-per month. It appears from Exhibit 3 that he was advised complete bed rest for six weeks. Taking two more months as recuperating period, this Tribunal is of considered view that the claimant suffered loss of income for four months. Considering the nature of injuries sustained by the claimant, and the period of treatment the incidental expenses towards special diet and attendant is calculated at a rate of Rs.300/- per day for six weeks (42 days). Thus, having considered the nature of injury sustained by the injured, expenditure incurred thereon and the facts and circumstances of the case, just and reasonable compensation to which the claimant would be entitled in the instant case is assessed as under:- 1. Medical Expenses : Rs. 45, Taxi Fare carrying the patient from Rs.23, Residence at Balipara, Sonitpur to Pratiksha Hospital at Guwahati for check-ups. 3. Incidental expenses towards special diet, : Rs.12, attendant etc (Rs.300/- X 42 days) 4. Loss of income ( Rs.5000/- X 4 month) : Rs.20, Pain, shock and suffering : Rs.10, Total : Rs.1,11, (Rounded off to Rs.1,11,400.00) MAC Case No. 80 of 2010 Page 7

8 Page 8 of 8 A W A R D 15. Rs.1,11,400.00/- (One lakh eleven thousand and four hundred Rupees only) is awarded with 7.5% p.a. from the date of filing the claim petition, i. e , till payment. The opposite party No. 3, the National Insurance Co Ltd, is directed to pay the award to the claimant, within one month from the date of order. 16. Judgment & Award is pronounced in open court, written on separate sheets and enclosed with the case record. Given under my hand & seal of this Court on this the 9 th day of June (M.K. Kalita) Member, MACT, Sonitpur, Tezpur. Dictated and corrected by me. (M.K. Kalita) Member, MACT, Sonitpur, Tezpur. Dictation taken and transcribed by me: R. Hazarika, Steno MAC Case No. 80 of 2010 Page 8