IN THE COURT OF MOTOR ACCIDENT CLAIMS TRIBUNAL: LAKHIMPUR : AT NORTH LAKHIMPUR. M.A.C.T CASE No.28/2013. P A R T I E S. -Versus-

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1 1 IN THE COURT OF MOTOR ACCIDENT CLAIMS TRIBUNAL: LAKHIMPUR : AT NORTH LAKHIMPUR M.A.C.T CASE No.28/2013. P A R T I E S Smti Amarawati Gogoi. Claimant. -Versus- 1. Hemanta Sonowal. ( Driver of vehicle bearing registration No.AS.07.A/5507). 2. Md. Hasan Ali. ( Owner of vehicle bearing registration No.AS.07.A/5507). 3. Branch Manager, New India Assurance Co. Ltd. North Lakhimpur Branch. North Lakhimpur. Opposite Parties. Present : Sri A.K.Das, Member, M.A.C.T. Lakhimpur, North Lakhimpur. A P P E A R A N C E Mr. Apurbajyoti Sarma, the learned advocate for the Claimant. Mr. Rajib Gogoi, the learned advocate for the OP No.3. NIA Co. Ltd. Date of argument : Date of Judgment : J U D G M E N T 1. This Claim case has been instituted by Smti Amarawati Gogoi, w/o Sri Kanakeswar Gogoi r/o Padumoni Gaon under Boginadi PS in the district of Lakhimpur, against OP No.1, Sri Hemanta Sonowal, the driver of vehicle registration No.AS.07.A/5507 (Maruti Van), OP No.2, Md. Hasen Ali, the owner of the offending Maruti Van, and OP No.3, New India Assurance Co. Ltd., North Lakhimpur Branch, the insurer of the said vehicle, seeking compensation amounting to Rs.17,00,000/- only, for the death of her son, Babul Gogoi due to road traffic accident on at 6.30 Pm near 14 Mile Bebejia bridge on NH-52.

2 2 2. The claimant's case, in brief, is that on at about 6.30 Pm, while the son of the claimant, namely Babul Bubul was coming from Boginadi as a pilion rider of motorcycle bearing registration No.AS07.E/ 7479 with one Sri Bhadra Kaman towards his home and when they reached near Bebejia bridge at 14 Mile on NH-52, one Maruti Van bearing registration No.AS.07.A/ 5507 which came from behind in excessive speed, dashed the deceased from the backside, and as a result the son of the claimant sustained severe injuries and died on the spot. It has been stated in the Claim Petition that the deceased was a young and energetic person and he was a businessman and was earning Rs.8,000/- only per month. It has also been stated in the Claim petition that the deceased was the only son of the claimant, and the claimant was solely dependent on the deceased and due to his sudden demise, the claimant suffers unexplainable mental agony, distress and pain. Accordingly, the claimant claims Rs.17,00,000/- (Rupees Seventeen Lakhs) only as compensation from the OPs. 3. On receipt of notices, the OP Nos.1 and 2 have appeared and filed their Written Statements. It is contended in their W.S. that the driver of the vehicle, OP No.1 had valid Driving License bearing NO.DLT.6637/2007/ 07 dtd issued by the DTO, Lakhimpur, and the vehicle was duly insured with New India Assurance Co. Ltd. vide Policy No valid up to covering the date of accident. It is further contended that as the vehicle was driven by the driver having valid driving license and was duly insured with the NIA Co. Ltd. the said Company is responsible to indemnify the claim of the claimant. 4. On receipt of notice, OP No.3, New India Assurance Company Ltd. has appeared and contested the case both in facts and Law points by filing their Written Statement. It is contended in the W.S. that the Insurance Company does not admit the narration made in the Claim Petition relating to the matter in which the accident was described to have taken place. It is contended in the W.S that the occurrence of accident and the

3 3 alleged involvement of the injured is denied. It is furthermore contended that the alleged accident was caused due to contributory negligence of the deceased, who was a pillion rider of the motorcycle bearing registration No.AS.07.E/7479. It is furthermore contended that the claim amount of Rs.17,00,000/- only is highly excessive, arbitrary and out of all proportion. It is furthermore contended that the Insurance Company is not aware of any alleged accident of the deceased person, as stated in the Claim Petition. It is furthermore contended that unless it is proved by the claimant that the deceased was involved in the said accident and the driver of the vehicle was having valid and effective Driving License, the Insurance Company is not liable to pay any compensation. 5. Now, upon the premises of the pleadings, the following issues have been framed to determine the real controversies between the parties : 1) Whether the accident took place due to rash and negligent driving of the driver of the vehicle bearing registration No.AS.07.A/ 5507 (Maruti Van) causing death to Babul Gogoi? 2) Whether the claimant is entitled to get any compensation as prayed for? 3) What other relief/ reliefs the parties are entitled to? DISCUSSION, DECISION & REASONS THEREOF ON ISSUE NO.1 : 6. In support of the claim case, the claimant has examined herself and two other witnesses, namely Sri Khagen Pegu and Sri Pradip Dihingia. The claimant in her affidavit evidence stated that on , her son, Bubul, aged about 29 years was coming from Boginadi towards his home as pillion rider in a motorcycle bearing registration No.AS.07.E/7479, he was knocked down from the backside by the Maruti Van bearing registration No.AS.07.A/5507, which was coming in rash and negligent manner, and as a result, the son of the claimant sustained grievous injuries and died at the spot. She further stated that with respect to the accident, a

4 4 police case was registered vide Boginadi PS Case No.157/2012 u/s 279/ 338/ 427/ 304(A) IPC. During cross examination, it has been suggested that there was no fault on the part of the Maruti van, which has been denied by the said witness. It has further been suggested that due to fault of her son, the accident took place, which has also been denied by the said witness. CW.2, Sri Khageswar Pegu has also stated, in his affidavit evidence, that due to the road accident, the son of the claimant has died. CW.3, Sri Pradip Dihingia, in his affidavit evidence, stated that on , while the deceased was coming with his friend, Bhadra Kaman as pillion rider in his motorcycle bearing registration No.AS.07.E/ 7479, the Maruti Van bearing registration No.AS.07.A/ 5507, which was coming in a rash and negligent manner dashed the deceased from the backside, and as a result he died at the spot. He further stated that at the time of accident, he was adjacent at the place of accident and he had seen the accident with his own eyes. The claimant in her affidavit evidence categorically stated that due to fault of the driver of the Maruti Van bearing registration No.AS.07.A/ 5507, the accident took place. During cross examination, it was suggested that there was no fault on the part of the driver of the Maruti van and due to fault of Sri Bhadra Kaman, the rider of the motorcycle, the accident took place, which has been denied by the said witness. 7. In this case, the OP, Insurance Company did not adduce any evidence in support of the written statement. The claimant, in her affidavit evidence, specifically stated that the accident took place due to fault of the driver of the Maruti Van. CW.3, Sri Pradip Dihingia, who is the eye witness of the accident categorically, stated that at the time of accident, he was adjacent to the place of accident and he had seen the occurrence of accident with his own eyes. The said witness categorically stated that the Maruti Van bearing registration No.AS.07.A/5507 was coming in a very rash and negligent manner and dashed the deceased from the backside while the deceased was travelling in the motorcycle as pillion rider, and it caused his instantaneous death. After going through the evidence adduced by the claimant and her witnesses, it appears that the accident was caused due to

5 5 rash and negligent driving of the driver of the Maruti Van, and accordingly this issues has been decided in favour of the claimant. DISCUSSION, DECISION & REASONS THEREOF ON ISSUE Nos.2 & 3 : 8. For the sake of convenience these three issues have been taken up together for discussion as they are related to each other. 9. Now, from Ext.1, Accident Information Report, it appears that with respect to the commission of the accident, a police case was registered vide Boginadi PS Case No.157/2012 u/s 279/ 338/ 427/ 304(A) IPC, and as per Ext.1, the vehicle was driven by Sri Hemanta Sonowal, who had a valid driving license bearing No.T.6637/ NLP/ 03 dtd and the vehicle was duly insured with the New India Assurance Company Ltd., North Lakhimpur branch, vide Policy No valid up to covering the date of accident. As the vehicle was driven by the driver having valid Driving License and the vehicle was duly insured with NIA Company Ltd., the Insurance Company is liable to indemnify the claim of the claimant. The claimant, in her Claim Petition, stated that her son was a businessman and he was earning Rs.8,000/- only per month by doing business. During cross examination, it was suggested by the Insurance Company that the monthly income of the deceased was not Rs.8,000/- only, which has been denied by the said witness. The CW.2, Sri Khageswar Pegu, in his affidavit evidence, stated that the deceased was earning Rs.7,000/- / Rs.8,000/- only per month by selling milk and vegetables. Now, from Ext.3, it appears that the President of Ukhamati Gaon Panchayat, North Lakhimpur, issued one certificate certifying that the deceased was doing business of milk and vegetables and was earning Rs.7,000/- only per month. 10. Mr. Apurbajyoti Sarma, the learned counsel appearing for the claimant, during the course of argument, submitted that the deceased was a quite young man doing business of milk and vegetables and was earning Rs.8,000/- only per month and the entire family of the deceased including his old mother was dependent on him, and accordingly he prays for granting an amount of Rs.17,00,000/- only as compensation due to death of her son.

6 6 11. Controverting the above submission, Mr. Rajib Gogoi, the learned counsel appearing for the Insurance Company, during the course of argument, submitted that the accident took place due to own fault and negligence of the deceased, who was a pillion rider and at the time of accident, he was not wearing any helmet. He further argued that it is a case of contributory negligence, so the entire liability can not go to the Insurance Company. He further argued that the Ext.3, Income Certificate issued by the President of Gaon Panchayat can not be relied upon as the President of Gaon Panchayat has no authority to issue such income certificate. It is the Circle Officer and the official of Revenue authority, who can issue such certificate. 12. I have perused the evidence on record. It appears that the accident took place due to fault of the driver of the Maruti Van bearing registration No.AS.07.A/ 5507 as the said Van was coming in very high speed and dashed the deceased from the back side. Further, from the evidence on record, it appears that although the claimant could not produce the income certificate from the Revenue authority, but it appears that the deceased was doing business of milk and vegetables, and as such his monthly earning may be considered as Rs.3,500/- only, which is a bit more than that of the notional income. Accordingly, the annual income of the deceased has been taken as Rs.3,500/- x 12 = Rs.42,000/- only. As the deceased was attaining the age of 29 years at the time of accident, so the multiplier would be '18' as per 2 nd schedule of Section 163 of the MV Act. and now by multiplying the annual income by the multiplier, '18', the amount of compensation comes to Rs.7,56,000/- only, and if the amount of compensation so arrived is reduced by 1/3 rd in consideration of the expenses, which the victim would have been incurred towards maintaining himself had he been alive, then the amount comes to Rs.5,04,000/- only. 13. The claimant is also entitled for other general damages which includes funeral damages of Rs.2,000/- only, and loss of estate of

7 7 Rs.2,500/- only, which comes to Rs.5,08,500/- only (Rupees Five Lakhs Eight Thousand Five Hundred ) only. Accordingly, both these issues have been decided. O R D E R 14. In view of the findings arrived at earlier in the foregoing issues, I find and hold that the claimant is entitled to get an awarded amount of Rs.5,08,500/- only (Rupees Five Lakhs Eight Thousand Five Hundred ) only for the death of her son due to road traffic accident, from the OP No.3, New India Assurance Co. Ltd. Further, she is entitled to get 7.5% p.a. on the awarded amount from the date of filing of her Claim Petition till realisation. The Insurance Company is directed to deposit the awarded amount of compensation before this Tribunal within 60 days from the date of this award. 15. This MACT case is disposed of, accordingly, on contest. 16. Both the parties will bear their respective costs. 17. Let a copy of this Judgment be forwarded to the OP No.3 for compliance. Given under my hand and seal of this Tribunal on this 27 th day of March, Dictated & corrected by me - (A.K.Das) Member, M.A.C.T. Lakhimpur, North Lakhimpur. (A.K.Das) Member, M.A.C.T. Lakhimpur, North Lakhimpur. Transcribed & typed by- S.Kshattry, Stenographer.