BEFORE THE MEMBER, MOTOR ACCIDENTS CLAIM TRIBUNAL, DIBRUGARH. MACT Case No. 79/ Claimant

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1 1 BEFORE THE MEMBER, MOTOR ACCIDENTS CLAIM TRIBUNAL, DIBRUGARH MACT Case No. 79/11 Present: Mr. AB Siddique, AJS Member, MACT. Dibrugarh Mrs. Romgaputi Chakma, W/o- Late Kishore Kumar Chakma, R/o- Chakma Basti, PO- Chowkham, District- Lohit, State- Arunachal Pradesh. -Vs Claimant (1) Sri Santosh Jaiswal, S/o- Sri Rangnath Jaiswal, R/o- Rajgarh, PO- Rajgarh, District- Dibrugarh. (Owner of the offending vehicle) (2) Sri Ses Kumar Shah, S/o- Sri Maniklal Shah, R/O- Tezu, MLA's Rent House, PO- Tezu, District- Lohit, State- Arunachal Pradesh. (Driver of the offending vehicle) (3) Cholamandalam M/s General Insurance Co. Ltd., Shankar Complex, 2 nd Floor, Christian Basti, GS Road, Guwahati-5, Assam. (Insurer of the offending vehicle) Opposite Parties

2 2 Advocate appeared: For the claimant: A. Baruah, learned Advocate. For the opposite parties: D. Chetry, learned Advocate. Date of argument: Date of judgment: J U D G M E N T (1) The claimant, Mrs. Romgaputi Chakma has preferred this claim petition for grant of compensation on account of death of her son, Jubok Chakma, aged about 23 years, who died in a road accident on at about 4:10 pm near 5 km point, Parashuram Kunda under Lohit District, Arunachal Pradesh. (2) The case of the claimant is that on , her son, Jubok Chakma, aged about 23 years, was proceeding from Chowkham side towards Tezu, Arunachal Pradesh by a Mini Bus bearing Registration No. AR-11/0698 along with some other passengers through Parashuram Kunda to Tezu connecting hilly road. However, the bus had carried limited passengers and the same was driven very rash and negligent manner on the said zigzagcum-up and down hilly road in spite of several requests by the occupants. At near about 4:10 pm, while the bus had reached near the place called 5 km point and moving towards up hill with very rash and negligent manner, all of a sudden, the driver of the bus could not control his vehicle and hence, dashed the wall of the hill with a great force. As a result thereof, the brake of the bus become out of order and started to move reverse very speedily and ultimately, hit the down side of the hill with a great force and capsized. As a consequence thereof, the son of the claimant, Jubok Kumar

3 3 Chakma sustained severe head injury and died on the spot and some other passengers also sustained grievous injuries on their person and immediately, admitted in the District Hospital, Tezu for necessary treatment by the help of some local people. Later on, post-mortem examination of her deceased son, Jubok Chakma was conducted in the Forensic Department, District Hospital, Tezu and handed over the same to his relatives. (3) The opposite parties have contested the case by filing written statement. The answering opposite parties No. 1 and 2 viz. Sri Santosh Jaiswal and Sri Seu Kumar Shah in their written statement, denied the statement of allegations stating that they are not in any way liable to pay compensation amount to the claimant and if any amount awarded to the claimant, same is to be paid by the Cholamandalam Ms General Insurance Co. Ltd., Guwahati Branch, since the vehicle in question bearing Registration No. AR-11/0698, had valid insurance policy at the time of alleged accident with the said company. The opposite party No. 2 has denied the allegation of rash and negligent driving for which the accident occurrence. However, the opposite party No. 1 & 2 have admitted that as a consequence of the said accident, the son of the claimant, Jubok Kumar Chakma, who was the passenger of the bus, died on the spot due to the head injury. They have also admitted the content of Para Nos. 9, 11, 12, 13, 14 & 15 of the claim petition. The opposite party No. 1 & 2 have not preferred any comment on the Para Nos. 16, 17, 18 & 19 of the claim petition. They have stated on the contents made in para no. 20 of the claim petition that it was purely an accidental case and there was no any rash

4 4 and negligent driving on the part of the driver. At the time of alleged accident, the said offending vehicle was duly insured with the opposite party No. 3 and the other relevant documents of the offending vehicle were also up-to-date as well as the Driving License of the opposite party No. 2 and also valid at the time of accident and hence, if any award is allowed in favour of the claimant, same is liable to be paid by the opposite party No. 3 and as such, the name of the opposite party nos. 1 & 2 are to be struck off from the instant case. (4) The answering opposite party No. 3, Cholamandalam Ms General Insurance Co. Ltd. has denied the statement of allegation and has stated that- The Mini Bus (City Ride) being bearing Registration No. AR-11/0698 where the deceased was traveling, was only responsible for the alleged accident and the claimant is not entitled to claim compensation under the Motor Vehicles Act and rules framed thereunder, against the answering opposite party No. 3 and is not liable to pay any compensation and hence, the claim petition is liable to be rejected against the answering opposite party No. 3; The claimant intentionally with an ulterior motive to acquire wrongful gain, has kept concealed the facts and full particulars of the alleged accident, with a view to present the same in a suitable manner at a subsequent stage. The claimant has failed to produce necessary documents viz. MVI

5 5 Report, Medical Reports, Police Report, Driving License of the driver, the Insurance Policy, etc. and as such, the answering party is not liable to pay compensation; The answering opposite party No. 3 reserves the right to take all defence and protective available to the insured/owner of the vehicle, if necessary, as provided under Sections 147/149/170 of the Motor Vehicles Act. The liability to pay compensation, if any, is limited by statute and the terms and condition of the Insurance Policy; Para 1, 2, 3, 4, 5 & 6 of the claim petition are denied for want of knowledge and the claimant shall prove the same in due legal manner. The age and occupation and income of the deceased is denied and the claimant is required to prove the same by documentary evidence in due legal manner; Para 8, 9 & 10 of the claim petition are denied and the claimant shall prove the same in due legal manner by producing documentary evidence, i.e., Police Report, Seizure List, Charge- Sheet, MVI Report, Post-mortem Report, etc.; Para 13, 14 & 15 of the claim petition regarding the involvement of the vehicle, the ownership of the vehicle and the driver of the vehicle are not admitted by this answering opposite party and same is required to be proved by producing the relevant records and vehicle document. It is also denied that the driver of the vehicle bearing Registration No. AR-11/0698 (Mini Bus/City Ride), i.e., the opposite party

6 6 no. 2 was holding effective and valid driving license to drive the vehicle at the material time of accident; Para 19 of the claim petition regarding amount of compensation claimed and computation thereon, are denied being highly excessive exorbitant and without any basic, neither legal nor proper. The claimant is not entitled for any compensation from the opposite party No. 3; The answering opposite party No. 3 disputes that the vehicle was plied in conformity with the requirements of Motor Vehicle Accident Act, 1988 and rules framed thereunder and also in conformity with the terms and conditions of the Insurance Policy and the liability, if any, is limited to the stature and the terms and conditions of the policy; The answering opposite party No. 3 has no liability under the law of torts and the provisions of Motor Vehicles Act, The answering opposite party deserves to be permitted to take the entire plea to which it is entitled to raise under the provisions of MV Act, 1988 and rules, (5) Upon the pleadings the following issues are as under- I S S U E S Whether the son of the claimant, Jubak Kumar Chakma died in the Motor Vehicle Accident which took place on involving vehicle bearing Registration No. AR-11/0698 due to rash and negligent driving or any other fault of the driver/owner of the offending vehicle?

7 7 Whether claimant is entitled to compensation as prayed for? If so, what shall be the quantum of compensation and by whom among the opposite parties shall be paid? DISCUSSION DECISION AND REASONS THEREOF (6) Since limitation and maintainability of this case was not challenged yet this court gave a cursory glance and found that the case is within the period of limitation and is maintainable in this forum. Let us discuss the issues one by one, Issue No. I (7) The claimant has examined herself as witness No. 1 and another witness No. 2, Sri Ramani Mohan Chakma in favour of her claim. In crossexamination, the claimant as witness No. 1 has stated that Jubok Kumar Chakma was her son, who expired in the year 2011 in an accident with a Mini Bus, but she do not know the number and name of the said vehicle. Her son had been working/doing petty business at Tezu and was unmarried being aged about 23 (twenty-three) years. She has stated that she has not produced any Income Certificate. She has denied the suggestion that her son used to earn less than Rs. 15,000/- (Rupees Fifteen Thousand Only) per month and he was a workless person and she was not dependent on the income of her son, Jubok Kumar Chakma. She has also denied the suggestion that her son, Jubok Kumar Chakma died due to his own fault. (8) Claimant's witness No. 2, Sri Ramani Mohan Chakma has deposed that on , in the afternoon, he along with the son of the claimant were proceeding from Chowkham side towards Tezu, Arunachal Pradesh by a Mini Bus bearing Registration AR-11/0698 as passengers

8 8 along with some other through Parashuram Kunda to Tezu connecting hilly road. The bus was driven very rash and negligent manner on the said road. At near about 4:10 pm, while the bus had reached near the place called 5 km point and moving towards up hill with very rash and negligent manner, all of a sudden, the driver of the bus could not control his vehicle due to aforesaid driving and dashed the wall of the hill with a great force. As a result thereof, the brake of the bus become out of order and started to move reverse very speedily and ultimately, hit the down side of the hill with a great force and capsized. As a consequence thereof, the son of the claimant, Jubok Kumar Chakma, who was sitting just beside the window of the bus, got out from the bus through the window and unfortunately the body of the bus fallen down over his body. As such, he sustained severe head injury as well as other parts of the body and died on the spot. Later on, post-mortem examination of her deceased son, Jubok Chakma was conducted in the District Hospital, Tezu and handed over the same to his relatives. Moreover, other occupants including himself also sustained severe injuries on many parts of the bodies. They were immediately brought to the District Hospital, Tezu for necessary treatment by the help of some local people. He has stated that the accident was occurred only because of rash and negligent driving of the vehicle bearing registration No. AR-11/0698. The opposite parties have not cross-examined this witness. From perusal of the deposition of the PW-1 was the eye witness but PW-2 was a co-passenger. His testimony was not challenged by crossexamination. Moreover, during the course of trial, the claimant besides

9 9 adducing oral evidence also exhibited four numbers of documents in support of her claim. Ext. 1 is the Accident Information Report (Form-54) issued by the Officer-in-charge, Tezu Police Station, Arunachal Pradesh, Ext. 2 is the Post-Mortem Report issued from the District Hospital, Tezu, Lohit District, Arunachal Pradesh, Ext. 3 is the Death Certificate of the deceased, Ext. 4 is the residential proof certificate of the claimant. On the other hand, the opposite party stated in their respective written statement that the accident was occurred not from the rash and negligent driving of the driver of the bus, but it was an accidental one. In this regard, the claimant submits that this fact ought to have been proved by the opposite party by examining either the driver or any other independent witnesses, but they did not adduce/examine any witness in this regard. On perusal of the deposition of PW-1 and 2 along with the exhibits this court is of the opinion that the son of the claimant, Jubak Kumar Chakma died in the Motor Vehicle Accident which took place on involving vehicle bearing Registration No. AR-11/0698 due to rash and negligent driving on the fault of the driver offending vehicle. Hence the issue is decided in favour of the claimant. ISSUE NO.2 (9) The claimant has stated that the deceased was the only earning member of the family and she was fully dependent upon the income of the deceased. The deceased was about 23 (twenty-three) years old at the time of his death and was a businessman by profession and did earn a sum of Rs. 10,000/- to Rs. 15,000/- per month from the business. She is the

10 10 mother of the deceased and only legal representative of him and therefore, she files this claim petition against the opposite parties seeking compensation of Rs. 17,87,000/- in total which is mentioned in details in the claim No. 19 of the claim petition. The claimant has submitted that the accident occurred due to rash and negligent driving of the said Mini Bus only and at the time of accident, it was duly insured with the opposite party No. 3, i.e., Chalamandalam M/S General Insurance Co. Ltd., Guwahati Branch bring Policy No. 3373/ /000/02 valid upto period The summons wee served upon the opposite parties and they appeared in the case and filed their written statement accordingly. The opposite parties denied some of the claim of the claim petition, but they have admitted the accident, the holding of valid driving license and coverage of valid insurance policy at the time of accident. She deposed in her evidence that her son was aged about 23 years at the time of his death and he was the only earning member of the family. He used to earn more than Rs. 1,44,000/- per month from his business. She further deposed in her evidence that the accident occurred due to rash and negligent driving of the driver of the bus bearing registration No. AR-11/0698 only. Therefore, the claimant has established her claim against the opposite party and also proved the age, income and rash and negligent driving of the opposite party involved in the accident by adducing evidence as well as documentary evidence filed by her. On the other hand, the opposite party stated in their respective written

11 11 statement that the accident was occurred not from the rash and negligent driving of the driver of the bus, but it was an accidental one. In this regard, the claimant submits that this fact ought to be proved by the opposite party by examining either the driver or any other independent witnesses, but they did not adduce/examine any witness in this regard. The claimant further submitted that the concerned police has registered a case against the driver of the said bus involved in the accident and after investigation, submitted Charge-Sheet against the said driver for an offence under Section 279/337/427/304-A IPC and thereafter, it is a prima facie to prove the actionable negligence. It is undisputed fact that the deceased died in the said accident due to injury sustained by him and the opposite party has also not disputed the same. Therefore, in view of the above, the claimant is entitled to get compensation from the opposite party and the claim petition is maintainable. In this respect, the claimant submits that as per Section 166 of the MV Act, only to prove the maintainability of claim petition for making an application before the Claim Tribunal, is a legitimacy and entitlement for the person concerned to approach the tribunal by reason of a motor vehicle accident, if the person who approaches the Tribunal is the injured or the legal representative of the deceased in the accident. Certainly he/she can maintain the petitioner if he/she satisfies the Tribunal that the injury was sustained as a result of the accident. In this case, the claimant is the mother of the deceased and only legal representative of the deceased. So, the claim petition is maintainable as per law. The claimant has argued that she has rightly prayed her claim petition for compensation of a sum of Rs.

12 12 17,87,000/- only against the opposite party. As the yearly income of the deceased was Rs. 1,44,000/- per annum, 1/3 rd of the total income to be deducted towards personal expenses of the deceased. Hence, Rs. 1,44,000 Rs. 48,000 = Rs. 96,000/-. So, yearly dependency would be Rs. 96,000/-. The deceased died at the age of 23 years, so multiplier is taken 17 and therefore, total dependency comes Rs. 96,000 x 17 = Rs. 16,32,000/-. The funeral expenses was Rs. 55,000/- and mental pain and agony was taken as Rs. 1,00,000/-. So, the total amounts comes Rs. 17,98,000/- with 9% per annum, w.e.f. The filing of the case which is reasonable and justified. ( 10) Hon ble Sumore court has reiterated that it has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. In State of haryana and another vs- Jasbir Kaur and others AIR 2003 Sc 3696 observed as follows: 7. It has to be kept in view that the Tribunal constituted under the Act as provided in S. 168 is required to make an award determining the amount of compensation which is to be in the real sense damages which in turn appears to it to be 'just and reasonable'. It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate the compensation must be just and it cannot be a bonanza; nor a source of profit; but the same should

13 13 not be a pittance. The Courts and Tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be just. What would be just compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of just compensation which is the pivotal consideration. Though by use of the expression which appears to it to be just a wide discretion is vested on the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression just denotes equitability, fairness and reasonableness, and non-arbitrary. If it is not so it cannot be just. (See Helen C. Rebello vs. Maharashtra State Road Transport Corporation (AIR 1998 SC 3191). (11) In another reported case Syed Basheer Ahamed and Ors. v. Mohammed Jameel and Anr. [MANU/SC/0006/2009 : (2009) 2 SCC 225], Hon'ble Supreme Court of India in the has held as follows: 13. Section 168 of the Act enjoins the Tribunal to make an award determining "the amount of compensation which appears to be just". However, the objective factors, which may constitute the basis of compensation appearing as just, have not been indicated in the Act. Thus, the expression "which appears to be just" vests a wide discretion in the Tribunal in the matter of determination of compensation. Nevertheless, the wide amplitude of such power does not empower the Tribunal to determine the compensation arbitrarily, or to ignore settled principles relating to determination of compensation.

14 Similarly, although the Act is a beneficial legislation, it can neither be allowed to be used as a source of profit, nor as a windfall to the persons affected nor should it be punitive to the person(s) liable to pay compensation. The determination of compensation must be based on certain data, establishing reasonable nexus between the loss incurred by the dependants of the deceased and the compensation to be awarded to them. In a nutshell, the amount of compensation determined to be payable to the claimant(s) has to be fair and reasonable by accepted legal standards. (12) I have heard argument of learned counsel both sides. Perused the evidence on record and I calculated the amount of compensation as follows: Deceased Jubok Chakma was aged about 22 years. No age prove document is given, from the PM report it is found that the deceased is aged about 22 years. Deceased was a fruit vendor at Tezu. But no prove of income is given. When no specific income is shown, there s no other option to count the income other than notional income. Since the deceased is a able bodied person and was engaged in a business of fruit selling, his income is taken to be Rs. 200/- per day. an amount of Rs. 6000/-PM is taken as his notional income. Since the deceased was unmarried and his mother is the only dependent on his income. Hence, 50% of his income is his personal expenditure and 50% was family contribution. Since the deceased was unmarried and his only mother is the dependent, hence, the multiplier is to be determined on the basis of the age of the dependent mother. His mother is aged about 42 years. A per Sarala Varma s case multiplier for age range from years is 14.

15 15 His annual income stands Rs 4,500/-x12x14=108000/- His loss of dependence is 10,8000/- is half of the annual income i.e 5,0400/-. The deceased being the only son of the claimant, considering loss of support, loss of love and affection, loss of estate of is taken Rs. 1,00,000/-(one lakh) and funeral expense of Rs. 5,000/- Considering all the claimant is entitle to compensation as follows: Loss of dependency Rs 5,04,000/- Loss of estate,, 1,00,000/- Funeral expense,, 5,000/ Total Compensation to be paid Rs 6,09000/- Thus the claimant is entitled to get Rs 6,09000/- (Rupees six lakhs nine thousand) only as compensation together with interest of Rs. 6% per annum from the date of filing of the case till realisation of the award. It is pertinent to be mentioned the claimed received Rs. 50,000/- under no fault liability vide order dated which will be deducted from the total amount of compensation. OP-1 is the owner and the OP No.2 is the driver. Both OP No.1 and Op No.2 did not appear. OP No.3 is the Insurance company. OP No.3 admitted that the vehicle was duly insured and the term of the policy is still valid. The actual liability is on the owner and driver to compensate the claimant. But OP No.2 is a servant under OP No.1. hence, the burden to compensate is on OP No.1. Further since the vehicle is duly insured the OP No.3 is to indemnify the loss to be compensated by the OP No.1. Hence, issue No.2 is decided in favour of the claimant. A W A R D Award of Rs 6,09000/- (Rupees six lakhs nine thousand) only as compensation together with interest of Rs. 9% per annum from the date of

16 16 filing of the case till realisation of the award is given in favour of the claimants. The OP No.3 Cholamondalam M/s General Insurance Co. Ltd. is to pay the amount of compensation to the claimant within two months from the date of the order of award. Out of the awarded amount 50% shall be deposited in the name of the claimant for a period of 5 years. Rest amount be released by account payee cheque in favour of the claimant. This judgment and award is pronounced in the open court And given under my hand and seal of this court on this 4 th day of March, 2015 Dictated and corrected by me. (Sri A. B. Siddique) Member, M.A.C.T., Dibrugarh. (Sri A. B. Siddique) Member, M.A.C.T., Dibrugarh.

17 17 M A C T Case NO. 79/2011 O R D E R Claimants are represented. OP No.3 is also represented. Heard learned counsels of both sides. Judgment is delivered in the open court. Judgment prepared in separate sheets and is kept with the record. Award of Rs 6,09000/- (Rupees six lakhs nine thousand) only as compensation together with interest od Rs. 6% per annum from the date of filing of the case till realisation of the award is given in favour of the claimants. The OP No.3 Cholamondalam M/s General Insurance Co. Ltd. is to pay the amount of compensation to the claimant within two months from the date of the order of award. Out of the awarded amount 50% shall be deposited in the name of the claimant for a period of 5 years. Rest amount be released by account payee cheque in favour of the claimant. Sri A. B. Siddique, Member, M.A.C.T., Dibrugarh.