BEFORE THE MEMBER, MOTOR ACCIDENTS CLAIMS TRIBUNAL, BARPETA

Transcription

1 BEFORE THE MEMBER, MOTOR ACCIDENTS CLAIMS TRIBUNAL, BARPETA PRESENT Sri A.F.A. BORA, (A.J.S.) MEMBER, M.A.C.T, BARPETA. M.A.C. Case No. 239/ Anjuwara Khatun... Claimant No Md. Jabed Ali... Claimant No. 2 Versus Md.Hafiz Miya... O.P. No. 1 Md. Jasum Ali... O.P No.2 United India Insurance Co. Ltd.... O.P No. 3 Appearance Miss. R. Das :- Learned advocate for the claimant Mr. M. Chachan :- Learned advocate for the O.P. No.1 & 2 Mr. J. B. Tarafdar :- Learned advocate for the O.P. No. 3 Argument heard on : Judgement delivered on : JUDGMENT 1) This motor accident claim case has arisen from the petition No. 936/13 filed by the claimants Anjuwara Khatun and Md. Jabed Ali u/sec 166 read with sec 140 of the M.V.Act 1988, praying for grant of compensation on account of death of Hajarat Ali. Cont. 2

2 -2- MAC CSE NO. 239/13 2) The facts of the case as reveals from the claim petition is that Anjuwara Khatun and Md. Jabed Ali parents of Late Chanowar Ali have filed an application u/sec 166 read with sec 140 of the M.V.Act 1988 claiming compensation amounting of Rs. 21,00,000/- (Twenty one lakhs) for the reason of death of Late Chanowar Ali in a motor vehicular accident that took place at Charhiabari under Patacharkuchi P.S District of Barpeta, Assam. 3) It is mentioned in the petition that on while the deceased was coming towards home after selling milk and at about 4:30 P.M on reaching Chauliabori under Patacharkuchi P.S District of Barpeta, Assam the bus bearing registration No. AS dashed the victim from backside in a very high speed and rash and negligent manner. As a result of the accident the victim died on spot. Post mortem was done at FAAMCH, Barpeta. In respect of the aforesaid Motor vehicular accident, a case was registered vide Patacharkuchi P.S case No. 169/13 u/sec 279/304(A) IPC by police. 4) In the claim petition one Md. Hafiz Miya, the owner of the bus as O.P. No.1, Md. Jasum Ali, the driver of the offending bus and United India Insurance Co. Ltd., (O. P. No.3) are made opp.parties in the claim petition. 5) After received of notices the O.P. No.3, the insurance company appeared and filed written statement and contested the petition. O.P. No.1 and 2 have also contested the case by filing written statment stating that the claim petition is not maintainable in its present form and there is no cause of action agaisnt the answering O.P No. 1 and 2. It is submitted in the written statement that the driver was not driven the alleged vehicle in rash and Cont. 3

3 -3- MAC CSE NO. 239/13 negligent manner. The written statement further disclosed that the driver was holding a valid driving vide driving licence No. F/8275/B/95 valid up to 9/5/2014. It is stated in the written statement that the vehicle was duly insured with the United India Insurance Co. Ltd. vide policy No /31/12/01/ valid up to 29/05/2013 and the vehicle was in a good condition and all the relevant papers were valid and up to date at the time of accident.. 6) Now the claim petition is contested by the insurance company i.e. O.P. No.3 and in the written statement it is stated that the claim petition is not maintainable as there is no cause of action against the answering opp. Party. It is stated in the written statement that the insurance company is not liable for the compenstion if the driver of the offending vehicle was not holding valid and effective driving licence at the time of accident. It is further submited that if there is any violation of policy condition and statutory provisions of the MV Act and the insurance Act the answering O.P is not liable for the compensation. The written statement also disclsoed that the amount of compensation as claim in the claim petiton is baseless. After hearing both the parties the following issues were framed :- ISSUES i) Whether Motor vehicle accident occurred on at Chaulibori due to rash and negligent manner of driving on the part of the driver of the vehicle bearing registration No. AS-17/4892 (Bus) and consequently Chanowar Ali dies? ii) Whether the claimant is entitled to compensation, as prayed for? iii) If he/she is so entitled, by whom it is payable and to what extent? Cont. 4

4 -4- MAC CSE NO. 239/13 REASONS AND DECISION ISSUE NO. 1 7) The claimant No 1 has examined herself as a witness. On the other hand contesting O.P has not adduced any witnesses. I have gone through the documents produced by the claimant and Exhibit 1 is the Accident Information Report in form 54 which established the fact that as per Patacharkuchi P.S case No. 169/13 a case was registered and the date and time of the accident is same as mentioned in the claim petition. The registration number of the vehicle is also corroborated by the Accident Information Report and policy number of the company is found same with the claim petition. Since the contested O.P. have not established any fact adverse to the fact as to involvement of the vehicle in the accident and it is proved by the claimants with the registration of a police case as indicated in Accident Information Report, it can be held safely that vehicle No. AS was involved in the motor accident at the place and time as mentioned in the claim petition. 8) The evidence of P.W.1 and the document as Exhibit 2 proved it further that with reference to the aforesaid police case the post mortem was conducted over the body of a person namely Chanowar Ali and cause of death was due to coma as a result of head injury. All the injuries were antemortem in nature and caused blunt force impact. 9) The deposition of P.W.1 reveals the fact that Patacharkuchi P.S case No. 169/13 was registered and it is the undisputed fact that the offending bus was involved in the accident which was in rash and negligent Cont. 5

5 -5- MAC CSE NO. 239/13 manner and the cause of death of Chanowar Ali was owing to Motor vehicular accident and nothing else. These all facts together proved that the death of the deceased was caused in a motor vehicular accident involving the offending bus which was in rash and negligent manner. As such issue No. 1 is decided in affirmative. ISSUES NO. 2 AND 3 10) It is proved by the claimant that the offending bus was duly insured with the O.P. No.3 vide policy No /31/12/06/ valid up to 29/05/13 and contested O.P have not denied their policy issued in favour of the O.P. No.1. The accident was not denied and as such it appears from the record that the death of Chanowar Ali has been caused in motor accident that took place on the fateful evening at Chaulibori under Patacharkuchi P.S District Barpeta. As such since there is no evidence contrary to the fact about death of Chanowar Ali involving the offending bus, it can be safely held that claimants are entitled to get compensation. As the offending vehicle was duly insured with United India Assurance Co. Ltd. (O.P. No.3) which has been corroborated by the Accident Information Report, it is decided that O.P No. 3 is liable for payment of compensation. 11) Now the question that requires to be determined is to what extent the claimants are entitled for compensation. In the present case the income of the deceased was claimed to be Rs. 15,000/- per month as a Milk Haker as well as cultivator and vegetable business. In the present case the claimants have not produced any papers/documents in respect of the income of the deceased. Cont. 6

6 -6- MAC CSE NO. 239/13 12) In the present case there is a claim of doing business and cultivation but there is no evidence in oral or documentary in support of such income of the deceased. When the income of the deceased is not conclusive and reliable the notional income should have been considered and determined on the basis of available evidence. For that we can take reliance of a reported case law 2008 (2) T.A.C 394 (S.C) Laxmi Devi and others petitioner vs Mohammad Tabbar and another respondent. 13) Again in jagadish Prasad Agarwal Vs Upendra Singh reported in 2012 (2) GLT 15, the Hon'ble Gauhati High Court relying on the decision of the Hon'ble Supreme Court in Laxmi Devi Vs Md. Tabbar 2008 (2) TAC 394 (S.C) was pleased to accept revised notional Rs. 3,000/- per month. 14) If we consider the principle laid down in the aforesaid case then in the present situation it is to be considered that the notional income of the deceased will be Rs. 3,000/- per month. In that view of the matter the annual income of the deceased will be 3000 X 12 = Rs. 36, ) Now looking to the calculation of amount of loss of dependency as per multiplier method then the age of the deceased is to be determined for selecting proper multiplier. In the present case the age of the deceased is claimed to be 14 years supported by Exhibit-2 the post mortem report. There is no contradictory view in the matter by the contesting O.P. It is the admitted position of law that the choice of the multiplier is determined by the age of the deceased or that of the claimants whichever is higher. In our present case in hand the age of the deceased is 14 years and the age of the Cont. 7

7 -7- MAC CSE NO. 239/13 parents i.e. claimant No.1 is 43 years as per evidence in affidavit and the age of the claimant No. 2 is 53 years as per claim petition and the average age of the parents is 48 years. In the present case the age of the claimants is higher then the age of deceased. The age of the claimants is taken as multiplier in the present case. 16) If we adopt the principle laid down in reported case law Sarala Verma other vs Delhi Transport Corporation and another the appropriate multiplier for the age group of 46 to 50 years will be 13 for determining the amount of compensation and in our case the appropriate multiplier will be ) Again as per Sarala Verma cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra's case, the general practice is to apply standard deduction. In that view where deceased was married the deduction towards personal and living expenses of the deceased should be 1/3 where the number of the dependants family members is 2 to 3, 1/4 where the number of depandant family members is 4 to 6, and 1/5 where the depandant number of family exceed 6. In view of the above observation made in the cited case law. In our present case in hand the number of dependancy is 2 and as such deduction of income of personal and living expenses of the deceased will be 1/2 of his annual income as the deceased was a bachelor. 18) Now going to the question of computation of compensation, it is necessary to determine the monthly income by taking note of future prospect and for that the principle laid down in Rajesh vs Rajbir Singh (2013) 9 SCC 54 is relied on and that in case of computation of compensation which is Cont. 8

8 -8- MAC CSE NO. 239/13 made applicable to self employed as well as those on fixed wage need to be enhanced by 50% where age was below 40 years. As such the income should be added by 50% enhancement of his usual income as the age of the deceased is 14 years. 19) By accepting the principle laid down in the above cases and discussions made in the foregoing para the the amount of compensation in the present case will be as below:- Sl. No. HEADS CALCULATION (i) Income Rs. 3,000/- per month. (ii) (iii) (iv) 50% of above to be added as future prospects 1/2 of the income is deducted as personal expenses of the deceased Compensation after multiplier of 13 is applied Rs. 3000/- + Rs. 1500/- = Rs. 4500/- per month Rs. 4500/- - Rs. 2250/- = Rs. 2250/- per month. Rs. 2250/- X 12 X 13 = Rs. 3,51,000/- (v) Funeral expenses Rs. 25,000/- TOTAL COMPENSATON AWARDED Rs. 3,76,000/- (Rupees Three Lakhs and Seventy Six Thousand) only. 20) It is already discussed that the accident occurred due to rash and negligent act on the part of the driver of the offending vehicle bearing registration No. AS-17/4892. I have carefully examined Exhibit-1 (form 54) termes as accident Information report and Exhibit-2 the post mortem report which is referring to Patacharkuchi P.S case No. 169/13 u/sec 279/304 (A) IPC. These documents proves the fact that there was a rash and negligent act of drivig on the part of the driver of the offending bus. Though the Cont. 9

9 -9- MAC CSE NO. 239/13 insurance side took the plea that the driver of the vehicle had no valid licence yet the insurance side could not prove the said fact. The accident information report on the other hand indicate clearly that driver had the valid licence bearing registration No. F/2275/B/95 valid up to 9/5/2014. Above facts shows that the offending bus was droved by a driver having valid licence and owner as such has not violated the condition of the insurance policy and issues are decided accordingly. 21) As per the claim petition and the accident information report the bus bearing Registration No. AS-17/4892 is insured with the United India Insurance Co. Ltd., vide policy No /31/12/01/ which is valid up to 20/05/2013. Hence, the United India Insurance Co. Ltd., is liable to pay compensation. 22) In the result the issues No.2 and 3 are decided in favour of the claimants. The amount of compensation payable to the claimants by O.P. No.3 will be as discussed above. AWARD AND ORDER 23) It is ordered that the United India Insurance Co. Ltd., be directed to make payment of Rs. 3,76,000/- (Rupees Three Lakhs and Seventy Six Thousand) only to the claimants with 7% per annum from the date of filing the claim petition till realisation. 24) Accordingly United India Insurance Company Ltd. is directed to make the payment within 3 months from the date of receipt of the order. Cont. 10

10 -10- MAC CSE NO. 239/13 If any Interim compensation has already been paid then it will be deducted from the total awarded amount of compensation. Copy of judgment and order be communicated to the O.P. The judgment is pronounced and delivered in the open court under my hand and seal of this court on this the 9th day of January Dictated and corrected by me. Sd/- Sd/- ( A. F. A. Bora) ( A. F. A. Bora) Member, MACT, Barpeta Member, MACT, Barpeta

11 MAC CASE NO. 239/13 O R D E R 09/1/2015 Judgment written on separate sheets is pronounced in the open court. It is ordered that the United India Insurance Co. Ltd., be directed to make payment of Rs.3,76,000/- (Rupees Three Lakhs and Seventy Six Thousand) only to the claimants with 7% per annum from the date of filing the claim petition till realisation. Accordingly United India Insurance Company Ltd. is directed to make the payment within 3 months from the date of receipt of the order. If any Interim compensation has already been paid then it will be deducted from the total awarded amount of compensation. Copy of judgment and order be communicated to the O.P. The judgment is pronounced and delivered in the open court under my hand and seal of this court on this the 9th day of January Dictated and corrected by me. Sd/- Sd/- ( A. F. A. Bora) ( A. F. A. Bora) Member, MACT, Barpeta Member, MACT, Barpeta