JUDGMENT 1). Mr. Rajesh Borpujari Rs. 8,00,000/- [Rupees Eight Lakhs] AS-03 F/4087 AS-05 B/2827 2). O.P. No-2, Sri Chandra Kanta Gogoi, AS-05 B/2827

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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. 09 OF 2011 Mr. Rajesh Borpujari, Son of Haren Borpujari, Resident of Kamargaon Pujari Chuck, P.O. Dergaon, P.S. Dergaon, District Golaghat... Claimant 1). Mr. Debabrata Gogoi, Son of Sri Dandadhar Gogoi, Permanent Address:- Jonaki Nagar, Golaghat P.S. Golaghat, District-Golaghat. [Owner of 709 Bus No. AS 05 B/2827] 2). Mr. Chandra Kanta Gogoi, Son of Late Bogai Gogoi, Resident of Chumoni Gaon, Mohima, P.S. Dergaon, District-Golaghat. [Driver of 709 Bus No. AS 05 B/2827] - Versus - 3). The Branch Manager, ICICI Lombard General Insurance Company Limited, Golaghat Branch. [Insurer of 709 Bus No. AS 05 B/2827]. Opposite Parties Date of Argument : Date of Judgment : APPEARANCES For the Claimant : Sri Simanta Barthakur, Advocate Smt. Rupali Rai Baruah, Advocate Md. A. Anwar, Advocate For the Opposite Party : Sri O.M. Mahesree, Senior Advocate Smt. Sangeeta Agarwal, Advocate Sri A.K. Das, Advocate

2 2 JUDGMENT 1). The claimant Mr. Rajesh Borpujari who is a student has claimed compensation to the tune of Rs. 8,00,000/- [Rupees Eight Lakhs] on account of injuries sustained by him in a motor accident. The claimant s case, in brief, is that on at about A.M. the claimant was travelling as a pillion rider in a motorcycle bearing registration No. AS-03 F/4087 alongwith Sri Partha Pratim Baruah who was the driver. They were travelling from the direction of Golaghat towards Dergaon. When they reached in front of Bapuji Mandir PHG Path the offending vehicle, i.e., 709 Bus bearing registration No. AS-05 B/2827 which was driven by its driver in a rash and negligent manner and with high speed dashed the motorcycle in which the claimant was travelling. Due to the aforesaid accident the claimant sustained multiple injuries on his body. Further version of the claimant is that for the aforesaid accident Sri Partha Pratim Baruah who was the driver of the motorcycle succumbed to his injuries. Hence, the claim petition u/s. 166 of Motor Vehicles Act. 2). The O.P. No-2, Sri Chandra Kanta Gogoi, being the driver of the aforesaid 709 Bus vehicle bearing registration No. AS-05 B/2827 did not contest the suit and hence the case proceeded exparte against him. Sri Debabrata Gogoi [O.P. No-1], being the owner of the aforesaid 709 Bus vehicle bearing registration No. AS-05 B/2827 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 ICICI Lombard 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-05 B/2827 had a valid driving licence. Further plea of the owner is that two vehicles were involved in the accident and the owner, driver and insurer of the 2

3 3 motorcycle ought to have been impleaded as parties to the instant claim petition. Lastly, it is pleaded that the claim of compensation is excessive and exorbitant. O.P. No-3, ICICI Lombard 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 and about date, time & place of accident and nature of injury alleged to be sustained by him. Further it is also pleaded that two vehicles were involved in the accident and hence the claim is bad for non-joinder of necessary parties. 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 offending vehicle No. AS-05 B/2827 [709 Bus]? ISSUE NO 2: Whether the case is bad for non-joinder of necessary parties, i.e., vehicle No. AS-03 F/4087 [Motorcycle]? ISSUE NO 3: Whether the claimant suffered grievous injuries 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 and two other witnesses 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 3

4 4 Exhibit-2 Exhibit-3 Exhibit-4 [A] to [AH] Exhibit-5 [A] to [AI] Exhibit-6 Exhibit-7 [A] to [O] Exhibit-8 [A] to [D] Exhibit-9 [A] to [U] Certified copy of Ejahar Certified copy of F.I.R. Medical expenses bill Hospital expenses bill Bills of Physiotherapy Bills of Transportation Bills of Accommodation expenses Report of various tests 5). I have heard the argument placed by the learned counsel for the claimant as well as the opposite party. Learned counsel for the claimant in course of argument submitted that in Lok Adalat held in the year 2012 the learned counsel for the insurance company agreed to pay Rs. 5,75,000/- [Rupees Five Lakhs & Seventy-five Thousand] to the claimant, to which, the claimant also agreed but in due course the insurance company failed to pay the amount as agreed upon by them. It was further submitted that the claimant at the time of accident was a student of degree course and he suffered 65% permanent disability. Learned counsel appearing on behalf of the insurance company contended that two vehicles were involved at the time of accident and the place of occurrence is in the district of Golaghat. The claim petition ought to have been filed at Golaghat. It is also pleaded that it was head on collision between two vehicles at the middle portion of the road. The owner, driver and insurer of the motorcycle were not made party to the instant proceeding and hence the case is bad for non-joinder of necessary parties. Further plea of the learned counsel is that there was contributory negligence of the driver of the motorcycle in which the claimant was travelling and there is no certificate that claimant requires further treatment. Lastly, it is contended that if any compensation is granted then the insurance company is liable to share only 50%. For just decision of the case the following issue wise discussion is taken up. 4

5 5 DECISIONS AND REASONS THEREOF: 6). ISSUE NO 1 Whether the accident occurred due to rash and negligent driving by the driver of the offending vehicle No. AS-05 B/2827 [709 Bus]? Sri Rajesh Borpujari [PW-1] who is the claimant of the instant proceeding deposed during his testimony that on 20/06/2010 at about A.M. while he was travelling alongwith his friend Sri Partha Pratim Baruah as a pillion rider in the motorcycle bearing registration No. AS- 03 F/4087 from the direction of Golaghat towards Dergaon and when they reached near Bapuji Mandir Path, the offending bus bearing registration No. AS-05 B/2827 which was driven by its driver in a rash and negligent manner and in high speed dashed against the motorcycle from the front side, i.e., head on collusion, for which, the claimant sustained grievous injuries on his person. He further testified that Sri Partha Pratim Baruah also sustained grievous injuries. After the accident the nearby people gathered and both of them were rushed towards Konoklata Civil Hospital, Golaghat and later on for his better medical treatment he was shifted to Brahmaputra Hospital & Research Centre, Dibrugarh. For the aforesaid accident Sri Haren Borpujari lodged an ejahar before Dergaon P.S. which was registered as Dergaon P.S. Case No. 57/2010. During cross-examination, he admitted that he has not impleaded the name of the owner and insurer of the motorcycle bearing registration No. AS-03 F/4087. He denied all the defence suggestions put forward to him by the learned counsel appearing on behalf of the insurance company. Sri Bidhan Jyoti Khatoniar who was cited as an eyewitness by the claimant was not produced by the claimant for crossexamination by the O.P. and hence his evidence-on-affidavit stands expunged from record. Sri Dipankar Saikia [PW-2] who is an eyewitness to the accident deposed during his evidence-on-affidavit that on 20/06/2010 at 5

6 6 about A.M. while he was coming from his uncle s house located near Indrani High School towards Narikolguri he suddenly witnessed a 709 Bus bearing registration No. AS-05 B/2827 straying from its side and dashed a motorcycle bearing registration No. AS-03 F/4087. Due to the accident the motorcycle fell near the wall of Bapuji Mandir with the rider in an unconscious state as well as the pillion rider who was shrieking in pain. People gathered at the spot and both the injured persons were taken to Konoklata Civil Hospital, Golaghat. Later on, he came to know that one of the injured named Partha Pratim Borah succumbed to his injuries and the claimant Sri Rajesh Borpujari was undergoing treatment at Dibrugarh. During cross-examination, he admitted that the accident occurred due to head on collision. He denied that due to fault of the driver of the bus the accident occurred. The claimant and his witness have deposed the actual factum of accident and nothing could be elicited from their cross-examination to discredit their version. Admittedly the investigating police officer on completion of investigation of corresponding Dergaon P.S. Case No. 57/2010 submitted charge-sheet against the driver of 709 Bus vehicle bearing registration No. AS-05 B/2827 alleging commission of offence under Sections 279/304 [A]/438 of IPC. Accordingly, keeping in view the unequivocal statement of the claimant as well as his witnesses 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 709 Bus bearing registration No. AS-05 B/ ). ISSUE NO 2 Whether the case is bad for non-joinder of necessary parties, i.e., vehicle No. AS-03 F/4087 [Motorcycle]? It is seen from the written statement submitted by O.P. Nos.- 1 and 3 that one motorcycle was also involved in the occurrence yet none of the driver, owner and insurer of 709 Bus vehicle bearing registration No. AS-05 B/2827 came forward to plead that there was any 6

7 7 contributory negligence on the part of the driver of the motorcycle bearing registration No. AS-03 F/4087. In that view of the matter I do not see any ground to hold that the case is bad for non-joinder of necessary parties. Accordingly this issue is also decided. 8). ISSUE NO 3 Whether the claimant suffered grievous injuries 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 20/06/2010 at around A.M. while he was travelling alongwith his friend Sri Partha Pratim Baruah as a pillion rider in the motorcycle bearing registration No. AS- 03 F/4087 from the direction of Golaghat towards Dergaon and when they reached near Bapuji Mandir Path, the offending bus bearing registration No. AS-05 B/2827 which was driven by its driver in a rash and negligent manner and in high speed dashed against the motorcycle from the front side, i.e., head on collusion, for which, the claimant sustained grievous injuries on his person. He further testified that Sri Partha Pratim Baruah also sustained grievous injuries. After the accident the nearby people gathered and both of them were rushed towards Konoklata Civil Hospital, Golaghat and later on for his better medical treatment he was shifted to Brahmaputra Hospital & Research Centre, Dibrugarh. For the aforesaid accident Sri Haren Borpujari lodged an ejahar before Dergaon P.S. which was registered as Dergaon P.S. Case No. 57/2010. The evidence of the claimant is also supported by another eyewitness Sri Dipankar Saikia [PW-2]. To support his above contention that he suffered grievous injuries the claimant also examined one Doctor Kumud Kumar Dutta [PW-3], the then C.M. & H.O. [CD], Golaghat, who during his testimony deposed that he is the Chairman of District Medical Board, Golaghat and Exhibit-10 [Disability Certificate] was issued from their office. He also exhibited the signature of Dr. S.G. Goswami as Exhibit-10 [1] in the 7

8 8 Disability certificate. He further testified that on 23/07/2013 the Medical Board, Golaghat, examined the claimant and found 65% permanent disability which was non-progressive. Further version of this witness is that the claimant suffered injuries on right side humerus tibia and fibula. Lastly, he testified that all the injuries were compound fractures. During cross-examination, he further stated that the claimant Sri Rajesh Borpujari suffered injuries on right leg and right hand. The claimant exhibited Exhibit-1 [Accident Information Report in Form No-54]; Exhibit-2 [Certified copy of ejahar]; Exhibit- 3 [Certified copy of F.I.R.]; Exhibit-4 Series [Medical expenses bills]; Exhibit-5 Series [Hospital Expenses Bills]; Exhibit-6 [Bills of physiotherapy], Exhibit-7 Series [Receipts of using conveyance]; Exhibit-8 Series [Bills of accommodation expenses] and Exhibit-9 Series [Report of various tests]. No evidence was adduced on behalf of the insurance company to prove that there was any contributory negligence on the part of the driver-cum-owner of the motorcycle. Be that as it may I do not see any infirmity in the evidence tendered by the claimant [PW-1] together with his witnesses as to the manner in which the accident took place and the nature of injuries sustained by him. Taking note of the evidence of the claimant, the doctor [PW-2] and the medical papers exhibited it is seen that the claimant has suffered grievous injuries leading to 65% permanent disability 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 exhibits exhibited by the claimants together with the Disability certificate [Exhibit-10] and also from the evidence of doctor [PW-3] it goes to establish that as a result of the accident the claimant suffered serious injuries on right side humerus tibia and fibula and 8

9 9 further that all the injuries were compound fractures which resulted in 65% permanent disability. Accordingly the injuries suffered by the claimant is evidently grievous in nature. The claimant appears to have incurred an approximate amount of Rs. 3,00,000/- [Rupees Three Lakhs] for his medical treatment vide Exhibit-4 & 5 Series of vouchers & cash memos. Keeping in view the nature of injury suffered by the claimant and the length of treatment 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. It is also seen that the claimant has also incurred an amount of Rs. 86,100/- [Rupees Eighty-six Thousand & One Hundred] on the head of conveyance for attending doctors on different occasions. The said amount is found to be on the higher side and therefore an amount of Rs. 60,000/- [Rupees Sixty Thousand] is found just and reasonable one and the claimant is also entitled to get the same reimbursed. For the treatment the claimant had to live for many days in different mess and lodges. From the Exhibit-8 Series [Lodge Bills] it is seen that the claimant has also incurred an amount of Rs. 9,900/- [Rupees Nine Thousand & Nine Hundred] for lodging in connection with his treatment. The said amount is rounded to Rs. 10,000/- [Rupees Ten Thousand] and he is also entitled to get the same reimbursed. The claimant at the time of accident was a student of Degree course and on the date of cross-examination he admitted that he had obtained his graduation degree. Being an able-bodied person the notional income of the claimant is held to be Rs. 3,000/- [Rupees Three Thousand] per month. As the notional income of the claimant is taken as Rs. 3,000/- [Rupees Three Thousand] per month, his yearly income is held to be Rs. 3,000/- x 12=Rs. 36,000/-. The claimant has suffered 65% permanent disability. So, his total loss of income is held to be 65/100 x 9

10 10 Rs /- = Rs. 23,400/- [Rupees Twenty-three Thousand & Four Hundred]. The claimant was aged about 21 years at the time of accident. To ascertain the loss of income suffered by him the appropriate multiplier is found to be 17 as per IInd Schedule of Motor Vehicles Act, Hence, total loss of income suffered by the claimant comes to Rs. 23,400 x 17 = Rs. 3,97,800/- [Rupees Three Lakhs Ninety-seven Thousand & Eight Hundred] and he is found to be entitled to get the same reimbursed. He is also found entitled to get an amount of Rs. 25,000/- [Rupees Twenty-five Thousand] on the head of pain and sufferings alongwith further amount of Rs. 10,000/- [Rupees Ten Thousand] for loss of amenities. Thus, the claimant is found entitled to get the following amount as compensation: PECUNIARY LOSS: Medical Treatment Rs. 3,00,000/- Travelling Allowance Rs. 60,000/- Lodging Rs. 10,000/- Loss of Income due to 65% permanent Rs. 3,97,800/- disability Pain & Sufferings Rs. 25,000/- Loss of Amenities Rs. 10,000/- Total:- Rs. 8,02,800/- [Rupees Eight Lakhs Two Thousand & Eight Hundred] 10). As the driver of the 709 Bus vehicle bearing registration No. AS 05 B/2827 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 Rajesh Borpujari. 10

11 11 AWARD AND ORDER 11). As the 709 Bus vehicle bearing registration No. AS 05 B/2827 was duly insured with ICICI Lombard General Insurance Company Limited, Golaghat branch [O.P. No-3], therefore, it is ordered that Opposite Party No-3, i.e., ICICI Lombard General Insurance Company Limited is directed to make the payment of Rs. 8,02,800/- [Rupees Eight Lakhs Two Thousand & Eight Hundred] including interim-relief, if any, found due to the claimant Sri Rajesh Borpujari 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, ICICI Lombard General Insurance Company Limited being the insurer of 709 Bus vehicle bearing registration No. AS-05 B/2827 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 17/02/2011 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) 11