BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL, MORIGAON::::::ASSAM. MAC CASE NO.48 OF 2007 PRESENT: SHRI P.C. DAS(A.J.S.) MEMBER, MACT,MORIGAON(ASSAM).

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1 BEFORE THE MOTOR ACCIDENT CLAIMS TRIBUNAL, MORIGAON::::::ASSAM. MAC CASE NO.48 OF 2007 Shri Bindeswar Bordoloi alias Dimbeswar Bordoloi...Claimant -Versus- 1. Shri Tarakeswar Prasad, Owner of the vehicle No.AS-12-D/ Opp. Party No.1, 2. The Divisional Manager, New India Assurance Co. Ltd....Opp. Party No.2 AND 3. The Divisional Manager, United India Insurance Co. Ltd., Opp. Party No.3. PRESENT: SHRI P.C. DAS(A.J.S.) MEMBER, MACT,MORIGAON(ASSAM). Mr. A. Haque Mr. D. Barman Mr. R.K.Bharali APPEARANCE: : Learned Advocate for the Claimant. : Learned Advocate for the Opp. Party No.1. : Learned Advocate for the Opp. Party No.2. Evidence recorded on : , and Argument heard on : Date fixed for Judgment : Judgment delivered on : J U D G M E N T A N D O R D E R 1. This motor accident case has arisen from the petition bearing No.265/2007 dated filed by the claimant Bindeswar Bordoloi alias Dimbeswar Bordoloi U/S 166 of the M.V. Act praying for grant of the compensation due to the injuries sustained by him in a motor vehicle accident. Contd...2/-

2 (2) 2. Before proceeding any further, it will be appropriate at the juncture to depict briefly the factual matrix of the case, as projected by the petitioner in the claim petition. FACTUAL MATRIX 3. That on , while Bindeswar Bordoloi alias Dimbeswar Bordoloi was travelling by a TVS motorcycle bearing registration No. AS-21/8207 from Morigaon towards Jagiroad, at about 1 PM on reaching Galsepa, the Indica car bearing registration No.AS-12-D/2530 approaching from opposite direction, due to rash and negligent manner of driving on the part of the driver of the said vehicle(indica car) knocked him down and consequently he sustained grievous injuries on his person. He was, as it is further reflected in the claim petition, immediately shifted to the Morigaon Civil Hospital and then he took treatment at the Dispur Polyclinic and Nursing Home, Guwahati. As it is reflected in the claim petition, in this connection Morigaon PS Case No.20/07 U/S 279/338 IPC was registered. 4. By filing the written statement the New India Assurance Co. Ltd., the opp. party No.2; besides raising the usual legal pleas and denying the material particulars, as raised in the petition, has specifically pleaded that as the two vehicles are alleged to have been involved in this case, the answering opp. party is not liable alone to pay the compensation and that the compensation, as claimed by the claimant, is excessive, exorbitant and without any basis. Contd...3/-

3 (3) 5. On the other hand, by filing the written statement by the United Insurance Co. Ltd., the opp. party No.3; besides raising the usual legal pleas and denying the material particulars as raised in the petition, has inter alia pleaded that the claim as made by the claimant in his petition is also excessive, exorbitant and without any basis. 6. The case has, however, proceeded ex parte as against Tarakeswar Prasad, opp. party No.1, the impleaded owner of the Indica car bearing registration No.AS-12-D/ On the basis of the pleadings of the parties, the following issues are framed: I S S U E S: (1)Whether the accident took place due to rash and negligent driving by the drivers of the offending vehicle, bearing registration Nos. AS-12-D/2530(Indicar car) and AS- 21/8207(TVS motorcycle)? (2)Whether the claimant is entitled to get any compensation? If so, what should be the quantum of the said compensation? AND (3)Who should be liable to pay the compensation? DISCUSSIONS, DECISION AND REASONS THEREOF: 8. In this case, the claimant side has examined two witnesses,- namely-bindeswar Bordoloi(PW1) and the Medical Officer, Ajit Kr.Phukan(PW2). The claimant has produced a Contd...4/-

4 (4) number of documents from Ext.1 to Ext I have heard the arguments and also I have perused the written argument submitted on behalf of the New India Assurance Co. Ltd., the opp. party No I have also considered the materials on record very carefully and cautiously. My issuewise findings are as follows: ISSUE NO.1: 11. Examining himself as a witness in this case, Bindeswar Bordoloi(PW1) has inter alia narrated in his evidence that on , while he was proceeding towards Jagiroad from Morigoan riding on his TVS motorcycle, bearing registration No. AS-21/8207, on reaching Galsepa at about 1PM, the Indica car bearing registration No. AS-12-D/2530 approaching from opposite direction, due to rash and negligent manner of driving on the part of its driver dashed against his motor cycle and consequently he sustained compound fracture injuries on his both bones of legs. According to PW1, he took treatment at the Dispur Polyclinic & Nursing Home from to As added by the claimant in his evidence, he was a garment businessman, at the relevant time of accident and his monthly income was Rs.7,000/ Dr. Ajit Kr. Phukan, S.D.M. & H.O. of the Morigaon Civil Hospital(PW2) examining the claimant on in the Medical Board found shortage of left the leg of the patient, Contd...5/-

5 (5) following road traffic accident and that the percentage of the degree of disability was 40. Ext.103 is the application for obtaining the identity card whereupon Ext.103(1) is his signature. 13. The Accident Information Report(Ext.1) discloses that Bindeswar Bordoloi was involved in a motor vehicle accident on at about 1 PM through the Indica car bearing registration No. AS-12-D/2530, that in connection with this accident Morigaon PS Case No.20/2007 was registered, that the Indica car bearing registration No.AS-12-D/2530 was insured with the New India Assurance Co. Ltd.(Opp. Party No.2) vide policy No /31/06/01/ valid upto , that Tarakeswar Prasad is the owner of the said vehicle and Manoj Kr. Chetri is the driver of the said Indica car. 14. The discharge certificate from the Dispur Polyclinic and Nursing Home discloses that the claimant Bindeswar Bordoloi was admitted in the hospital on due to the compound fracture of both bones of left leg following road traffic accident and that he was discharged on Ext.91,-the disability identity card, reveals that Bindeswar Bordoloi has been suffering from shortening of left leg following road traffic accident and his degree of percentage of disability was In the light of above discussions, it is reasonably held that the motor vehicle accident occurred on at about 1 PM at Galsepa due to rash and negligent manner of driving on the part of the Indica car bearing registration No.AS-12-D/2530. Contd...6/-

6 (6) Accordingly, the issue No.1 is decided as such, in favour of the claimant. ISSUES NO.2 AND 3: 17. While discussing the issue No.1, we have already found that the motor vehicle accident occurred due to the rash and negligent manner of driving on the part of the driver of the Indica Car bearing registration No. AS-12-D/2530 which was insured with the New India Assurance Co. Ltd. under a valid policy. 18. It is pertinent to mention here that the aforesaid insurance company in its written statement has not specifically denied that the vehicle bearing registration No. AS-12-D/2530 was insured with them. Moreover, there appears nothing to show to the contrary. In that view of the matter, the New India Assurance Co. Ltd. is liable to pay the compensation to the claimant under the law. 19. It is the claim of the claimant that he is a businessman of garments and thus his monthly income is 7,000/-. But to that effect, no proper income certificate is produced. In any view of the matter, the claimant must Rs.5,000/- PM, at the relevant time of accident in order to meet the minimum needs of his family. Accordingly, for determination of just compensation, his monthly income is assessed as Rs.5,000/ In the case of Oriental Insurance Co. Ltd. & Contd...7/-

7 (7) others-vs-hingthangzuala & another reported in 2006(3) TAC 269(Gau) the Hon'ble Gauhati High Court relying on the decision of the Hon'ble Supreme Court in R.D. Hattangadi Vs Pest Control(India) Pvt. Ltd. and others reported in(1995) 1 SCC 551 held that while fixing the amount of compensation, payable to a victim of an accident, the damages have to be assessed separately as pecuniary damages and special damages. Pecuniary damages are those, which the victim has actually incurred and which are capable of being calculated in terms of money; whereas non-pecuniary damages are those, which are incapable of being assessed by arithmetical calculations. 21. In the light of the above discussion, this Tribunal is of the view that the claimant Bindwawar Bordoloi is entitled to the compensation from the New India Assurance Co. Ltd., the opp. party No.2 as follows: A For pecuniary damages: 1.Medical expenses= Rs.61,192/- 2.Conveyance = Rs.10,000/- 3.Loss of income for one month = Rs. 5,000/- 3.For pain and suffering = Rs.10,000/- Total Rs.76,192/- B For special damages: For mental and physical shock = Rs.70,000/- arising from incapability. Total (A+B)=(Rs.76,192+70,000) Rs.1,46,192/-. (Rupees one lakh forty-six thousands one hundred and ninetytwo) only. Contd...8/-

8 (8) Accordingly, the issue No.2 and 3 are decided in favour of the claimant. O R D E R In the light of above discussions, the claim of the claimant, Shri Bindeswar Bordoloi alias Dimbeswar Bordoloi is allowed on contest for an award of Rs.1,46,192/-(Rupees one lakh forty-six thousands one hundred and ninety-two) only. The New India Assurance Co. Ltd.(Opp. Party No.2) is directed to pay the said amount within 90 days from the date of passing this order, with 6% per annum w.e.f , i.e. the date of institution of this case, subject to adjustment any amount, already paid in favour of the claimant. Be it recorded here that in the event of failure on the part of the said insurance company to pay the awarded amount within the stipulated time, as indicated above, an additional 9% will be levied from the date of passing this judgment and order. Send a copy of this judgment and order to the New India Assurance Co.Ltd. (Opp. Party No.2) for doing needful, in the light of directions passed in this judgment and order. Given under my hands and seal of this Tribunal today this the 18th day of October, Dictated & corrected by me. Member, MACT, Morigaon. Member, MACT, Morigaon.