IN THE COURT OF THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL AT JORHAT

Transcription

1 IN THE COURT OF THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL AT JORHAT Present: Mr. P.K. Khanikar, B.Sc., LL.M., AJS Member, Motor Accident Claims Tribunal, JORHAT. JUDGMENT IN M.A.C. CASE NO. 17 OF 2011 Mr. Sanjib Bora, Resident of Jalukoni Kukurachowa, P.O. Jalukoni, P.S. Titabar, District Jorhat... Claimant - Versus - 1). Md. Zuber Khan, Son of Late Ayub Khan, Resident of Titabar Chari-Ali, P.S. Titabar, District-Jorhat. [Owner of Bolero Pick-Up Van No. AS 03 AC/2196] 2). Mr. Diganta Baruah, Son of Dilip Baruah, Resident of Chonali Pathar, P.S. Chungajan, District-Golaghat. [Driver of Bolero Pick-Up Van No. AS 03 AC/2196] 3). The Branch Manager, Bajaj Allianz General Insurance Company Limited, G.F. Plaza Airport Road Yer Wada, Pune [Insurer of Bolero Pick-Up Van No. AS 03 AC/2196]. Opposite Parties Date of Argument : Date of Judgment : APPEARANCES For the Claimant : Smt. Bornali Bordoloi, Advocate For the Opposite Party : Sri B.K. Beriya, Advocate Smt. Sangeeta Sahewalla, Advocate

2 2 JUDGMENT 1). The claimant Mr. Sanjib Borah who is the father of Sri Jintu Borah has claimed compensation to the tune of Rs. 7,00,000/- [Rupees Seven Lakhs] on account of injuries sustained by his son Sri Jintu Borah, aged about eight years in a motor accident. The claimant s case, in brief, is that on at about 2.30 P.M. while the claimant was travelling alongwith his son Sri Jintu Borah in a bicycle towards the market situated at Titabar Chari-Ali and whens they reached near Saikia Petrol Station, Jorhat, near Dhodar Ali, the Bolero Pick-Up Van bearing registration No. AS-03 AC/2196 which was driven by its driver in a rash and negligent manner and with high speed dashed the bicycle from the front side in which the claimant was travelling. Due to the aforesaid accident the claimant s son Sri Jintu Borah sustained grievous injuries on his head for which he was immediately admitted at Jorhat Medical College & Hospital. For his better medical treatment he was thereafter admitted at Sanjivani Hospitals, Dibrugarh and therefrom he was admitted at Aditya Diagnostics & Hospitals, Dibrugarh. Hence, the claim petition u/s. 166 of Motor Vehicles Act. 2). The O.P. No-2, Sri Diganta Baruah, being the driver of the aforesaid Bolero Pick-Up Van bearing registration No. AS-03 AC/2196 did not contest the suit and hence the case proceeded exparte against him. Md. Zuber Khan [O.P. No-1], being the owner of the aforesaid Bolero Pick-Up Van bearing registration No. AS-03 AC/2196 contested the suit by filing its written statement contending inter-alia that the petition is not maintainable in the eye of law as well as on facts; that there is no cause of action for the present claim; that his vehicle was duly insured with Bajaj Allianz General Insurance Company Limited and compensation if any is to be paid to the claimant then it shall be borne by the insurance company. It is further pleaded that the driver of the aforesaid vehicle bearing registration No. AS-03 AC/2196 had a valid driving licence. Further plea of the owner is that the son of the claimant had no monthly income as he was a minor. Lastly, it is pleaded that the claim of compensation is excessive and exorbitant. 2

3 3 O.P. No-3, Bajaj Allianz General Insurance Company Limited, by filing their separate written statement denied the whole fact of accident, as alleged and also contended that the claim is not maintainable and there is no cause of action; that the claim is highly excessive and exorbitant. It is further claimed that the driver of the offending vehicle had no valid driving licence at the time of occurrence and hence the insurance company is not at all liable for violating the policy condition by the owner of the vehicle. The rash & negligent driving on the part of the driver is also denied. The insurance company further denied correctness of the age and income of claimant s son and about date, time & place of accident and nature of injury alleged to be sustained by the claimant s son. 3). Upon the pleadings, the following issues were framed. ISSUE NO 1: Whether the accident occurred due to rash and negligent driving by the driver of the vehicle No. AS-03 AC/2196 [Bolero Pick-Up Van]? ISSUE NO 2: Whether the driver of the offending vehicle had a valid and effective driving licence at the time of accident? ISSUE NO 3: Whether the claimant s minor son sustained grievous head injury due to the said accident? ISSUE NO 4: Whether the claimant is entitled to get any compensation? And, if so, to what extent and by whom it shall be paid? 4). In course of hearing, the claimant examined himself in support of his claim whereas the opposite party-insurance Company examined none. The claimant also exhibited the following documents- Exhibit-1 Police Report in Form No-54 Exhibit-2 Doctor s certificate Exhibit-3 Payment Slip of Aditya Diagnostics & Hospitals, Dibrugarh Exhibit-4 Medical expenses bills 3

4 4 Exhibit-5 to Exhibit-30 Cash memos of Aditya Diagnostics & Hospitals, Dibrugarh 5). I have heard the argument placed by the learned counsel for the claimant as well as the opposite party. For just decision of the case the following issue wise discussion is taken up. DECISIONS AND REASONS THEREOF: 6). ISSUE NO 1 Whether the accident occurred due to rash and negligent driving by the driver of the vehicle No. AS-03 AC/2196 [Bolero Pick-Up Van]? Sri Sanjib Borah [PW-1] who is the claimant of the instant proceeding deposed during his testimony that on at about 2.30 P.M. while the claimant was travelling alongwith his son Sri Jintu Borah who was aged about eight years in a bicycle towards the market situated at Titabar Chari-Ali and whens they reached near Saikia Petrol Station, Jorhat, near Dhodar Ali, the Bolero Pick-Up Van bearing registration No. AS-03 AC/2196 which was driven by its driver in a rash and negligent manner and with high speed dashed the bicycle from the front side in which the claimant was travelling. Due to the aforesaid accident the claimant s son Sri Jintu Borah sustained grievous injuries on his head for which he was immediately admitted at Jorhat Medical College & Hospital. For his better medical treatment he was thereafter admitted at Sanjivani Hospitals, Dibrugarh and therefrom he was admitted at Aditya Diagnostics & Hospitals, Dibrugarh. For the aforesaid accident Sri Sanjib Bora informed police of Titabar P.S. which was registered as Titabar P.S. G.D.E. No. 490 dated 21/11/2010. During cross-examination, he admitted that on the relevant day he was going to Titabar Chari-Ali riding his bicycle and at that time his son Sri Jitu Bora was sitting at the carrier of the bicycle; that he did not sustain serious injury on his person and further that his bicycle was not completely damaged in the 4

5 5 aforesaid accident. He denied all the defence suggestions put forward to him by the learned counsel appearing on behalf of the insurance company. The claimant has deposed the actual factum of accident and nothing could be elicited from his cross-examination to discredit his version. Accordingly, keeping in view the unequivocal statement of the claimant and also by taking aid of the doctrine of res-ipsa-loquitor, I am bound to hold that the accident occurred due to rash and negligent driving on the part of the driver of the Bolero Pick-Up Van bearing registration No. AS-03 AC/2196. This issue is accordingly decided. 7). ISSUE NO 2 Whether the driver of the offending vehicle had a valid and effective driving licence at the time of accident? It is seen from the police report in Form No-54 that the investigating officer has impleaded the name of the driver as Sri Diganta Baruah who had a valid and effective driving licence valid up-to 11/12/2011 issued by the District Transport Officer, Mon, Nagaland. No evidence was adduced by the O.P./Insurance Company to convince that the driver of the offending vehicle had no driving license at the time of occurrence. In that view of the matter I do not see any ground to hold that the driver had no valid and effective driving licence at the time of accident. Accordingly this issue is also decided. 8). ISSUE NO 3 Whether the claimant s minor son sustained grievous head injury due to the said accident? From the averments made in the claim petition as well as the deposition of the claimant it appears that on at about 2.30 P.M. while the claimant was travelling alongwith his son Sri Jintu Borah who was aged about eight years in a bicycle towards the market situated at Titabar Chari-Ali and whens they reached near Saikia Petrol Station, Jorhat, near Dhodar Ali, the Bolero Pick-Up Van bearing registration No. AS-03 AC/2196 which was driven by its driver in a rash and negligent manner and with high speed dashed the bicycle from the front side in which the claimant was travelling. Due to the aforesaid accident the claimant s son Sri Jintu Borah sustained grievous injuries 5

6 6 on his head for which he was immediately admitted at Jorhat Medical College & Hospital. For his better medical treatment he was thereafter admitted at Sanjivani Hospitals, Dibrugarh and therefrom he was admitted at Aditya Diagnostics & Hospitals, Dibrugarh. To support his above contention that his minor son suffered grievous head injury he has exhibited the medical certificate issued by the doctor of Aditya Diagnostics & Hospitals, Dibrugarh, as Exhibit-2. It is seen from the aforesaid report that the claimant s son sustained RTA with depressed fracture in right parietal bone with contusions and he was operated on 23/11/2010 with dural repair and cranioplasty. Exhibit-3 [Payment Slip of Aditya Diagnostics & Hospitals, Dibrugarh] shows that the injured was kept in intensive care unit for his treatment after the accident. The claimant also exhibited Exhibit-1 [Accident Information Report in Form No-54]; Exhibit-4 [Medical expenses bills of Aditya Diagnostics & Hospitals, Dibrugarh] and Exhibit-5 to Exhibit-30 Series of Cash memos of Aditya Diagnostics & Hospitals, Dibrugarh. No evidence was adduced on behalf of the insurance company to prove that the injury suffered by the claimant s minor son is not grievous in nature. Be that as it may I do not see any infirmity in the evidence tendered by the claimant [PW-1] as to the manner in which the accident took place and the nature of injuries sustained by his minor son. Taking note of the evidence of the claimant, the certificate of the doctor of Aditya Diagnostics & Hospitals, Dibrugarh and the medical papers exhibited it is seen that the claimant s son has suffered grievous head injuries due to the accident caused by the aforesaid vehicle. Accordingly, this issue is also decided in the affirmative, i.e., in favour of the claimant. 9). ISSUE NO 4 Whether the claimant is entitled to get any compensation? And, if so, to what extent and by whom it shall be paid? The claimant appears to have incurred an approximate amount of Rs. 1,50,000/- [Rupees One Lakh & Fifty Thousand] for his medical treatment vide Exhibit-3, 4, 5 to Exhibit-30 Series of vouchers & cash memos. Keeping in view the nature of injury suffered by the claimant and the length of treatment 6

7 7 undergone by him the amount stated to have been incurred by the claimant for treatment of his injuries is found to be a reasonable one and he is entitled to get the same reimbursed. The claimant s minor son at the time of accident was aged about eight years and stated to be reading in Class-IV. Hence loss of income does not arise. There is nothing in the evidence of the claimant that injured lost any educational year due to the injury suffered by him. The claimant is also found entitled to get an amount of Rs. 20,000/- [Rupees Twenty Thousand] on the head of pain and sufferings; Rs. 5,000/- [Rupee Five Thousand] on the head of conveyance alongwith further amount of Rs. 5,000/- [Rupees Five Thousand] for loss of amenities. Thus, the claimant is found entitled to get the following amount as compensation: PECUNIARY LOSS: Medical Treatment Rs. 1,50,000/- Pain & Sufferings Rs. 20,000/- Conveyance Rs. 5,000/- Loss of Amenities Rs. 5,000/- Total:- Rs. 1,80,000/- [Rupees One Lakh & Eighty Thousand] 10). As the driver of the Bolero Pick-Up Van bearing registration No. AS 03 AC /2196 is alone found to be responsible for the accident, the driver alongwith the owner and insurer of the said vehicle are jointly as well as severally liable to make payment of the above amount of compensation to the claimant Sri Sanjib Borah. AWARD AND ORDER 11). As the Bolero Pick-Up Van bearing registration No. AS 03 AC/2196 was duly insured with Bajaj Allianz General Insurance Company Limited, [O.P. No-3], therefore, it is ordered that Opposite Party No-3, i.e., Bajaj Allianz General Insurance Company Limited is directed to make the payment of Rs. 1,80,000/- 7

8 8 [Rupees One Lakh & Eighty Thousand] including interim-relief, if any, found due to the claimant Sri Sanjib Bora together with interest 8% per annum through an Account Payee Cheque from the date of filing of the claim petition, i.e., The O.P. No-3, Bajaj Allianz General Insurance Company Limited being the insurer of Bolero Pick-Up Van bearing registration No. AS-03 AC/2196 is further directed to clear the amount within a period of 90 [ninety] days, failing which, they shall be liable to pay future interest at the same rate from 31/03/2011 till its realization. 12). Furnish the either side with a copy of the judgment and the orders passed immediately. Typed & transcribed by: MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL, JORHAT Sri Mrinal Jyoti Bora (Stenographer) 8