IN THE COURT OF THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL ; DHEMAJI. Present : Smti R. Bora Saikia, Member, Motor Accident Claims Tribunal, Dhemaji.

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1 1 IN THE COURT OF THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL ; DHEMAJI. Present : Smti R. Bora Saikia, Member, Motor Accident Claims Tribunal, Dhemaji. M.A.C. Case No. 2/2011. (1) Smti Bimala Devi, W/O Lt. Lalit Sarma, Vill. Kalita Gaon, P.S. Gogamukh, Dist. Dhemaji (Assam), Claimants. -Vs- (1) Shri Nara Bhuyan, S/O Lt. Rama Bhuyan, Medical Deptt, Oil, P.O. Duliajan, Dist. Dibrugarh, Assam, Owner of the offending- Vehicle bearing Regd. No. AS-06-E /4257. (2 Shri Abani Bhuyan, S/O Lt. Rama Bhuyan, Vill. Kalita Gaon, Bordoloni P.S.Gogamukh, Dist. Dhemaji, Assam, Driver of the offending- Vehicle bearing Regd. No. AS-06-E / Opp. Parties. APPEARANCE : Shri K.C.Sonowal, Advocate : For the claimant. Shri P.C. Boruah, Advocate : For the opp. Party Nos- 1 and 2. Dates of recording evidence : , , , , Date of hearing argument : Date of judgement :

2 2 J U D G E M E N T : (1) This motor accident claim-case has arisen out of a claimpetition filed u/s 166 of the Motor Vehicles Act ( in short M.V. Act) by Smti- Bimala Devi claiming compensation on account of death of her son Ritul Sarma (since deceased) in a motor vehicle accident. (2) The case of the claimant in brief is that on at about 12/12.30 P.M. while Ritul Sarma ( since deceased) was standing in front of 'Rita Book Stall' at Bordoloni Chariali a Motor Cycle bearing Registration No.AS-06-E/4257 knocked down him and as a result, he sustained grievous injuries on his person. Immediately after the accident, he was removed to Gogamukh PHC. Doctor of Gogamukh PHC referred him to North Lakhimpur Civil Hospital, and from North Lakhimpur Civil Hospital he was shifted to Neurological Surgeon. Accordingly he was admitted and treated at GNRC, Guwahati for better treatment. During his treatment at GNRC, Guwahati, on he succumbed to his injuries. The claimant claimed that the accident took place due to rash and negligent driving of the Motor Cycle bearing Registration No. AS-06-E/4257. The deceased was a businessman and maintained the claimant from his income. Hence, the prayer for granting compensation. (3) The opposite Party No 1 owner, and opp. Party No. 2, rider of the motor cycle contested the case by filing written statement. In their joint written statement they contended that there is no cause of action for filing of the claim-case, that, the case is not maintainable and so on. They contended that the deceased died of his own negligent act. He tried to cross the road hurriedly from the side of the Hotel of opp. Party No.2 to his Book Stall with two cups of tea in a tray in his hand without seeing what was coming from the front and back side of the road and hit the motor cycle. The deceased fell down on the pucca road and opp. Party No. 2 also fell down from the motor cycle striking against the step of a shop nearby the place of occurrence. Both

3 3 of them became senseless and people took them to Hospital. Opp. Party No.2 survived after undergoing treatment but, Ritul Sarma died after a few days of the accident. Opp. Party denied the age and income of the deceased and contended that claimant is not dependent on the income of the deceased. They contended that they are not financially sound and unable to pay any compensation to the claimant. Under the fact and circumstances, they prayed to dismiss the claim-petition with cost. (4) Upon the pleadings of the parties, the following Issues were framed for adjudication - I s s u e s : (1) Whether the death of the deceased -Ritul Sarma had occurred in the vehicular accident on at about P.M. at Bordoloni as a result of driving the the offending motor cycle bearing Registration No. AS-06-E/4257 by the driver- Abani Bhuyan rashly and negligently? (2) Whether the amount of compensation claimed by the claimant is high, excessive and exorbitant one? (3) Whether the claimant is entitled to get compensation as prayed for, from the opp. Party Nos- 1 and 2? (4) To what relief/reliefs the parties are entitled to? (5) During enquiry, claimant side examined 3 witnesses and exhibited a number of documents. The contesting opp. Parties also examined 3 witnesses and exhibited driving licence of the opp. Party No.2. (6) I have heard argument advanced by the learned Counsel for both sides and carefully gone through their pleadings and evidence on record. Issue-wise my decision is as follows- (7) I S S U E No.1 The claimant- Smti Bimala Devi adduced evidence in support of the claim-petition as CW1. In her evidence she stated that on at

4 4 about 12/12.30 P.M. while her son-ritul Sarma (since deceased) was standing in front of his Book Stall, the opp. Party No.2 by riding a motor cycle bearing Registration No. AS-06-E/2457 in a rash and negligent manner, knocked down him. As a result of the accident, Ritul Sarma sustained grievous injuries on his person and became senseless. After the accident, he was removed to Gogamukh PHC for treatment. From Gogamukh PHC, he was shifted to North Lakhimpur Civil Hospital, and from North Lakhimpur Civil Hospital to GNRC, Guwahati for better treatment. But Ritul Sarma succumbed to his injuries on Shri Pratap Sarma lodged an ejahar at Gogamukh Police Station regarding the accident. She proved the prescription of Gogamukh PHC as Ext-1, Discharge Certificate of North Lakhimpur Civil Hospital as Ext-2, Income Certificate of the deceased as Ext-3, Admit Card of H.S.L.C. as Ext-4, FIR as Ext-5, Ejahar as Ext-6, Police Report as Ext-7, Accident Information Report as Ext-8 and Post Mortem Report as Ext-9. the accident. In cross-examination CW1 admitted that she had not witnessed (8) PW2 Shri Pratap Sarma is the younger brother of deceased- Ritul Sarma. He came to know about the accident at first from Shri Sumsum Dutta over telephone. At that time he was at North Lakhimpur. After preliminary treatment while his brother was carrying to North Lakhimpur Civil Hospital in a critical condition, he met him (deceased) on the road near Ananda T.E. He stated that his brother was admitted at North Lakhimpur Civil Hospital for treatment but, he was removed to GNRC, Guwahati for better treatment as per advise of doctor. During treatment at GNRC, his brother succumbed to his injuries on He lodged the ejahar at Gogamukh Police Station after coming to know from Dharmeswar Dutta and other people of the locality that motor cycle No. AS-06-E/4257 was involved in the accident. accident. In cross-examination, he admitted that he had not witnessed the

5 5 (9) CW3 Shri Dharmeswar Dutta stated that on at about 12 noon he was in the shop of Nalia. At that time he saw Ritul Sarma (since deceased) with a cup of tea after crossing the road while reached in front of his Book Stall, the opp. Party Shri Abani Bhuyan by driving a motor cycle in a rash and negligent manner coming to wrong side, knocked down Ritul Sarma and dragged him to a few distance. Ritul sarma became senseless. Abani Bhuyan also sustained injury in that accident. Both the injured persons were removed to Hospital in a vehicle. Later on, Ritul Sarma died during his treatment at Guwahati for the injuries sustained by him in the accident. He stated that the motor cycle involved in the accident was Hero Honda Super Splender and Registration No. was AS-06-E/4257. By cross-examining this witness the opposite party carried nothing to discard his testimony. (10) Opp. Party Shri Abani Bhuyan adduced evidence as DW1. In his evidence he stated that Ritul Sarma himself hit the motor cycle while he (Ritul Sarma) tried to cross the road hurriedly with 2 cups of tea in a tray in his hand. He drove the motor cycle slowly. Accident did not take place due to his fault. In cross-examination DW1 denied the suggestion that the accident took place due to his rash and negligent driving. (11) DW2 Shri Bipul Dutta and DW3 Shri Gopal Dutta corroborated the evidence of DW1. In cross-examination both the witnesses denied the suggestion that the accident took place due to rash and negligent driving of Shri Abani Bhuyan. (12) From the oral as well as documentary evidence on record, it reveals that on at about P.M. a motor vehicle accident took place and Ritul Sarma (since deceased) sustained grievous injury in that accident. It also reveals from the evidence on record that during treatment at GNRC, Guwahati Ritul Sarma succumbed to the injuries. The Motor Cycle bearing Registration No. AS-06-E/4257 was involved in the accident and at

6 6 the relevant time opp. Party No.2 drove the said motor cycle. The opp. Party tried to show that the accident took place due to negligent act of the deceased- Ritul Sarma and not for rash and negligent driving of Opp. Party No.2. But the opp. Party failed to prove the same by adducing cogent evidence. On the other hand CW3 who is an eyewitness of the accident, specifically stated that Abani Bhuyan (O. P. No.2) by driving the motor cycle in a rash and negligent manner coming to a wrong side hit Ritul Sarma. This part of evidence of CW3 was not challenged by the opp. Party during cross-examination. That being so, I have no option but to hold that the accident took place due to rash and negligent driving of opp. Party No.2. (13) It is true that in connection with the accident Gogamukh P.S. Case No.03/2011 u/s 279/338/304(A) of IPC was registered against the rider of the of the motor cycle Abani Bhuyan i.e. opp. party No.2. Police carried out investigation and submitted charge-sheet pursuant to which trial took place and the learned trial court acquitted the accused. But judgment of criminal case would have no relevancy in claim-case under M.V. Act. Considering the oral evidence of CW2 and documentary evidence- Ext-9 (P.M. Report), Issue No.1 is answered in affirmative in favour of the claimant. (14) I s s u e Nos- 2, 3 and 4: For sake of my convenience and brevity, the Issue Nos- 2, 3 and 4 are taken for decision. It is already decided that the death of Ritul Sarma occurred in a vehicular accident that took place on as a result of negligent driving on the part of the driver (opp. Party No.2) of the vehicle bearing Registration No. AS-06-E/4257. The claimant being dependent on the income of the deceased, is entitled to get compensation u/s 166 of the M.V. Act. (15) Now, the prime question is what will be the just and proper compensation and who will pay the same. For assessing the compensation, the claimant is required to prove the age and income of the deceased, number

7 7 dependency etc. So far the age of the deceased is concerned, the claimant in her claim-petition as well as in evidence stated that at the time of accident her son Ritul Sarma (since deceased) was aged about 31 years. Ext-4 Admit Card of HSLC Examination of the deceased shows that the deceased was born on So, as per the Admit Card, the deceased was aged about 31 years 6 months. That being the position, I am constraint to hold that the age of the deceasded was in the age group of years at the time of his death. (16) Regarding income of the deceased, CW1 stated that by running a Book Stall Ritul Sarma (since deceased) earned Rs. 12,000/-per month. In support of her claim, she submitted a certificate issued by the Village Headman Shri Khirod Dutta as Ext-3. But she failed to examine said Khirod Dutta as witness in this case. The certificate issued by the Village Headman cannot be accepted as Income Certificate. In absence of any cogent and trustworthy evidence regarding the income of the deceased and considering the factual matrix of the case, I assess notional income of the deceased at Rs. 3,000/- P.M., in view of judgment of Honble Apex Court in Laxmi Devi and others -vs- Mohammad Tabbar & Another, AIR-2008 SC 1859 ; 2008 (2) T.A.C (17) So far quantum of deduction of amount for personal expenses of the deceased is concerned, ratio of Sarla Verma -Vs- Delhi Transport Corporation [ Manu /SC/0606/2009 ; (2009) (SCC-121)] is the guiding principle. As held in that case, deduction will be 1/3 rd. AS such, net annual income for the purpose of calculating the compensation in the instant case is - Rs. 3,000 x 12-1/3 rd = Rs. 24,000/- per annum. As per decision of Sarla Verma's case, proper Multiplier will be '16' as fixed for the age group of years. (18) It is evident from the evidence from the record that the deceased-ritul Sarma was undergoing treatment at North Lakhimpur Civil Hospital and GNRC, Guwahati till As such the claimant is entitled to get lump sum amount of Rs.25,000/- as expenses for medical treatment, Rs.10,000/- for conveyance bill. Apart from the above expenses, I find force

8 8 in the submission of the learned Counsel for the claimant for granting a lump sum amount for funeral expenses and other incidental expenses and some amount for love affection. (19) Thus, having considered the facts and circumstances, just and proper compensation is assesses as under - (1) Loss of dependency - Rs.24,000 x 16 = Rs. 4,16, (2) Medical Expenses -.. = Rs. 25, (3) Conveyance Bill.. = Rs. 10, (4) Funeral Expenditure.. = Rs. 10, (5) Love and affection.. = Rs. 5, Total Rs. 4,66, (20) It appears from the evidence on record that the opp. Party No.1 is the owner of the offending Motor Cycle and the accident took place due to rash and negligent driving of the opp. Party No.2. There was no Insurance Policy of the offending Motor Cycle at the relevant time. As such, Opp. Party Nos- 1 and 2 are jointly liable to pay the compensation. Issue Nos. 2, 3 and 4 are decided accordingly. A W A R D : (21) In the result, claim-petition is allowed on contest. Claimant is awarded compensation of Rs.4,66,000/- (Rupees four lakhs sixty six thousand) only. The opp. Party No.1 and 2 are directed to deposit Rs.2,33,000/- (Rupees tow lakhs thirty three thousand) only each in favour of the claimant within 60 days from today i.e failing which the opposite parties shall be liable to pay 9% p.a. from the date of filing the claim petition till the date of realization of the entire amount. (22) Let the copy of the judgment be furnished to the opposite party- Nos- 1 and 2 for information and necessary action.

9 9 (23) Given under my hand and seal of this court on this the 7 th day of March/2015. Dictated & corrected by me :- (R. Bora Saikia ) Member, Motor Accident Claims Tribunal, Dhemaji. (R. Bora Saikia ) Member, Motor Accident Claims Tribunal, Dhemaji. Transcribed & typed by me :- ( B. K. Buragohain, Steno.)

10 10 M.A.C.T. Case No.2/ Both the parties are represented by the learned Advocates. Judgement prepared in separate sheets is pronounced and delivered in open Court. The claim-petition is allowed on contest. An amount of Rs.4,66,000/- (Rupees four lakhs sixty six thousand ) only is awarded as just and reasonable compensation to the claimant. The opp. Party Nos- 1 and 2 are directed to deposit Rs.2,33,000/- each in favour of the claimant within 60 days from today i.e failing which they shall be liable to pay 9% p.a. from the date of filing the claim petition till the date of realization of the entire amount. Let the copy of the judgment be furnished to the opposite party Nos- 1 and 2 for information and necessary action. Member, Motor Accident Claims Tribunal, Dhemaji.

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