IN THE COURT OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, GOLAGHAT. Smti. I. Barman, A.J.S. Member, Motor Accident Claims Tribunal, Golaghat, Assam

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1 Page 1 IN THE COURT OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, GOLAGHAT PRESENT: Smti. I. Barman, A.J.S. Member, Motor Accident Claims Tribunal, Golaghat, Assam MAC CASE NO. 53/2011 (Under Section 163-A of the MV Act) 1. SMTI NAKOI RABHA, W/O Late Sutin Rabha 2. MISS KABITA RABHA (8 YEARS) D/O Late Sutin Rabha 3. SRI BIREN RABHA (11 YEARS) S/O Late Sutin Rabha 4. SRI UTTAM RABHA (5 YEARS) S/O Late Sutin Rabha 5. SMTI DUBORI RABHA (SECOND WIFE) W/O Late Sutin Rabha 6. SRI KHIRAT RABHA (6 YEARS) S/O Late Sutin Rabha 7. MISS BONLATA RABHA( 8 YEARS) D/O Late Sutin Rabha All are Residents of Dhupguri, P.O- Dhupguri, P.S. Sarupathar, Dist-Golaghat, Assam The claimant No. 2, 3 and 4 are minors and represented by their mother Smti. Nakoi Rabha, Claimant No.1 and Claimant No. 6 and 7 are minors represented by their mother Smti. Dubori Rabha, Claimant No. 5.. Claimants

2 Page 2 - VERSUS 1. THE BRANCH MANAGER, United India Insurance Co. Ltd. Golaghat Branch, Policy No /31/10/01/ Valid from to [Insurer of Vehicle No. NL (Bajaj Discover DTS- SI)] 2. SRI PALLAV GOGOI, S/O Sri Pita Kanta Gogoi, Vill:- No. 1 Rajapukhuri, Dist-Golaghat, Assam. (Owner of Motorcycle No. NL-04-E-6629) Opp.Parties Advocate for the claimant : Mr. P.Bora Advocate for the O.P No.1 : Mr. P. Singh Date of Argument : Date of Judgment : J U D G M E N T 1. This claim case arose out of a petition preferred u/s 163-Aof the Motor Vehicle Act, (M.V.A. in short), by the claimants claiming compensation from the opposite parties on account of death of Late Sutin Rabha in a Motor Vehicle Accident.

3 Page 3 2. The case of the claimants, in brief, is that on at about 4:20 P.M the deceased Sutin Rabha by driving the motorcycle bearing registration No. NL was proceeding from Sarupathar towards Uriamghat side and on the way on reaching Sukia Pathar on P.W.D road, under Sarupathar police station, one motorcycle bearing registration No. NL-04-E-6629 coming from opposite direction knocked down the motorcycle bearing No. NL as a result of which, the driver of both the motorcycle sustained serious injuries and died on the spot. Sri Akon Bora, pillion rider of Motorcycle No. NL-04-E-6629, also sustained serious injuries on his person. The postmortem examination of deceased Sutin Rabha was done at K. K. Civil Hospital, Golaghat. It is also mentioned that at the time of death, the deceased Sutin Rabha was 43 years old and he was carrying the business of grocery shop and also working as agent for the R.C.M and earned an amount of Rs.40,000/- per annum.it is contended that the deceased was the only bread earner of his family and left behind his wives i.e. claimant No. 1 and claimant No. 5 and fiveminor children as dependents.it is further stated that the accident took place due to rash and negligent driving of both the driver of the motorcycle No. NL and NL-04-E-6629 and with regard to the accident, Sarupather police registered the U/D case being No.14/2010 with reference to this accident. Hence claimed Rs.10,46,000/-(Rupees Ten Lakhs Forty Six Thousand only) from the opposite parties as compensation. 3. In response to the receipt of notice, the opposite party No. 1, i.e. United India Insurance Co. Ltd. the insurer of vehicle No. NL (Bajaj Discover DTS-SI) entered its appearance and by filing written statement contended inter-alia that the claim petition is not maintainable under section 147 of M.V.Act and the deceased was not the third party rather he was the owner of motorcycle bearing registration No.NL and as such risk of the deceased is not covered by the insurance policy. Denying the rash and negligent driving on the part of the deceased/driver of the motor cycle bearing registration No.NL , it is pleaded that the accident took place due to rash and negligent driving on the part of the driver of vehicle No. NL-04-E-6629 and hence the claim petition is liable to be dismissed against the answering

4 Page 4 opposite party.the answering opposite party also put the claimant to make strictest proof with regard to the alleged accident, injury report, driving license of the driver(since deceased) of vehicle NO. NL and submitted that the claimant s claim is excessive and without material basis. In this premise the answering opposite party prayed to dismiss the claim petition. On the other hand notice to the opposite party No.2 the owner of motor cycle No. NL-04-E was returned with report that he refused to receive the notice and hence the case was proceeded exparte against him. 4. On the basis of the pleadings of the parties, the following issues are settled: i) Whether there is rash and negligence on the part of the driver of the offending vehicle NO.NL at Sukiapothar on P.W.D Road near Uriamghat police station? ii) Whether Late Sutin died of such accident? iii) iii) Whether the claimant is entitled for compensation? Any other relief? 5. During course of trial, the claimant No.1 side examined herself as C.W.1 by filing evidence who was duly cross-examined by the contesting opposite party No.1. However, the contesting opposite party did not adduce any evidence. 6. I have heard argument from both the sides and carefully gone through the evidence on record. My findings in respect of the above noted issues, in view of the evidence on record and in the light of the submission of the learned counsel from both the sides are as follows:

5 Page 5 7. Issue No. (i) and (ii): The claimant No.1 Smti. Nakoi Rabha (CW-1) the 1 st wife of the deceased Sutin Rabha stated in her evidence thaton at about 4:20 P.M the deceased Sutin Rabha by driving the motorcycle bearing registration No. NL was proceeding from Sarupathar towards Uriamghat side and on the way on reaching at Sukia Pathar on P.W.D road, under Sarupathar police station, one motorcycle bearing registration No. NL-04-E-6629 coming from opposite direction knocked down the motorcycle bearing No. NL as a result of which, the driver of both the motorcycle sustained serious injuries and died on the spot. Sri Akon Bora, pillion rider of Motorcycle No. NL-04-E-6629, also sustained serious injuries on his person. She further stated that her husband died as a result of injuries sustained by the use of the motor cycle bearing No. NL drove by himself and with regard to the accident Sarupathar police also registered an UD case. In support of her evidence she proved the Accident report as Ext.1. during cross by the contesting opposite party No.1 she admitted that her deceased husband was the owner of the motor cycle driven by him and there was head on collusion of both the motor cycle. 8. Now let us go to decide whether the accident took place due to rash and negligent driving of the driver of the vehicle No. NL (Bajaj Discover DTS-SI). 9. From the above evidence of CW 1 and other documents, it is clear that the deceased died due to the motor vehicle accident occurred on at about 4:20 P.M. As per the Accident Report Ext-1 issued by the O/C, Sarupathar P.S., the accident occurred on at 4.20P.M. on P.W.D Road, Chukiapathar, involving the motorcycle bearing NO.NL and motorcycle bearing NO. NL-04-E-6629 wherein Sutin Rabha the owner of the motor cycle No. NL was shown as deceased. As per the evidence of CW1, the accident took place by the use of the motor cycle No. NL and her deceased husband was the owner cum driver of the said motor cycle.on

6 Page 6 careful perusal of the Accident Report, it appears that both the vehicle i.e. the aforesaidmotorcycles were shown as the offending vehicles which are involved in the accident. No any witness was examined who had seen the accident.from the above evidence both oral and documentary, it appears to me that there was negligence on the part of the driver of both the motorcycle No. NL and AS-04-E In view of the above evidence, I am of the opinion that it is established that the accident took place due tonegligence of both the aforesaid motorcycles and the deceased died in the said accident. Accordingly, these two issues are decided. 10. Issue No. (iii) and (iv): These two issues relate to entitlement of the claimants for compensation and extent thereof as well as liability of the opposite party to pay such compensation. 11. In view my forgoing discussion, I am of the opinion that the claimants being two wives and minor children are entitled for compensation. The claimant in her evidence stated that her deceased husband was 43 years old at the time of accident. In the post mortem report available on record also reflects the age of the deceased as 43 years. But she did not submit any certificate to prove the age of the deceased. Therefore in absence of any other document, the age of the deceased is accepted as per version of the claimant and as suchthe multiplier 14has to be taken for ascertaining the loss of dependency.the claimant stated that the deceased was carrying the business of grocery shop and also working as agent for the R.C.M and earned of Rs. 3,500/- per month. But she did not submit any document to prove his income. The instant claim petition is filed under section 163-A of the M.V. Act and the notional income of Rs.3000/- is taken as monthly income of the deceased.further the deceased left behind seven dependents i.e. his two wives, claimant No. 1 and claimant No. 5 and five minor children namely claimant No.2Miss Kabita Rabha (8 years), Claimant No. 3 Sri Biren Rabha (11 years), Claimant No. 4 Sri Uttam Rabha (5 years), Claimant No. 6 Sri Khirat Rabha (6

7 Page 7 years) and Claimant No. 7 Miss Bonlata Rabha (8 years) as dependents at the time of accident. Hence 1/5 th from the income of the deceased is to be deducted towards his personal and living expenses.thus taking the income of the deceased as 3,000/- per month, his annual income would be Rs. 36,000/- (Rs.3,000/- x 12) and after deducting 1/5 th towards personal expenses of the deceased, it comes to Rs. 28,800.00/- (Rs.36, ,200.00). 12. Therefore in my opinion the following amount would be just and reasonable that the claimant is entitled as compensation. Compensation for loss of dependency ( Rs. 28, x 14) : Rs.4,03, Loss of consortium Loss of care and guidance for minor children : Rs.1,00, : Rs.1,00, Funeral Expenses : Rs. 25, Total :Rs. 6,28, The deceased was owner cum driver of the offending motorcycle bearingnl (Bajaj Discover DTS-SI) insured with the opposite party No.1 i.e. United India Insurance Co. Ltd at the time of accident and the opposite party No. 2 i.e. the owner of the motorcycle No. NL-04-E It is already decided that due to fault of both the aforesaid motor cycles, the accident occurred. As the deceased Sutin Rabha himself drove his offending motor cycle No. NL (Bajaj Discover DTS-SI), therefore the opposite party No.2 the owner of the offending motor cycle No. NL-04-E-6629, hence the claimants are entitled to get 50% of the awarded amount from the opposite party No.2. These issues are decided accordingly.

8 Page 8 O R D E R 14. In the result the claim petition is allowed on contest. Claimant No. 1 and claimant No. 5 and their five minor children are entitled to get 50% out of the amount of Rs. 6,28, (Rupees Six lacs Twenty Eight Thousand Two Hundred only) i.e. Rs. 3,14,400/-from the opposite party No.2 for the death of Sutin Rabha in the motor vehicle accident. The amount of compensation shall carry an 9% per annum from the date of filing of the claim petition i.e. from till its realization. All the seven claimants shall be entitled to apportion the awarded amount in equal share. The share of the five minor dependents i.e. claimant No. 2 to 4 and claimant No.6 and 7 shall be deposited in their name in any nationalized bank till they attain majority. The opposite party No 2 is directed to pay the amount to pay the amount within a period of 60 days from today i.e including the interest thereon as mentioned above after deducting the amount, if any, already paid to the claimant. 15. Send a copy of the judgment to the opposite party No. 2 for information and necessary action. 16. Given under my hand and seal of this court on this 17th day of April, 2015 at Golaghat. Dictated & corrected by me. Member, Motor Accidents Claims Tribunal Golaghat. Member, Motor Accidents Claims Tribunal Golaghat...