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. 518/2009 Usha Rani Das... Claimant Versus Shamal Das... O.P. No. 1 & 2 Oriental Insurance Co. Ltd.... O.P No. 3 Appearance Mr. M. Ojah :- Learned advocate for the claimant. Mr. S. Rahman :- Learned advocate for the O.P. No.1 & 2 Mr. K. B. Das :- Learned advocate for the O.P. No. 3 Argument heard on :- 8.9.2014 Judgement delivered on :- 19.09.2014 JUDGMENT 1) This motor accident claim case has arisen from the petition No. 594/09 filed by the claimant Usha Rani Das u/sec 166 of the M.V.Act 1988, praying for grant of compensation on account of death of Sham Nath Das. 2) The facts of the case as reveals from the claim petition is that Usha Rani Das mother of Late Sham Nath Das has filed an application u/sec 166 of the M.V.Act 1988 claiming compensation amounting of Rs. 10,00,000/- (Ten lakhs) for the reason of death of Late Sham Nath Das in a motor vehicular accident that took place at Amtola, Barpeta Road. 3) It is mentioned in the petition that on 12/03/2009 at about 8:45 P.M while deceased was proceeding towards Mandia from Barpeta Road by the vehicle bearing registration No. AS-12/A-9506 as a pillion rider the Motor cycle met with an accident at Amtola, Barpeta Road. The deceased sustained grievous head injury. The victim was immediately brought to G.N.R.C Hospital, Guwahati but he was died at G.N.R.C Hospital on 18-03-09. Post mortem was cont. 2
-2- MAC CASE NO. 518/09 done. In respect of the aforesaid incident of Motor vehicular accident a case was registered vide Barpeta Road P.S G.D. Entry No. 369 dated 12-3-09. 4) In the claim petition one Shamal Das,O.P. No.1 and O.P No.2, the owner and driver of the vehicle being the same person and Oriental Insurance Co. Ltd., the O. P. No.3 are made opp.parties. 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 also appeared and filed written statement stating that the claim petition is not maintainable in its present form there is no cause of action against the answering opp. Parties and the same is liable to be rejected. That the allegation of rash and negligent driving on the part of the driver of the Motor Cycle strongly denied and the driver had valid driving licence bearing D/L No. 1309/B/07. That all the vehicular documents were valid and up to date at the time of accident and the vehicle was in road worthy condition. The written statement further stated that the vehicle was duly insured with Oriental Insurance Co. Ltd. vide policy no. 322302/31/2009/5104 valid up to 22/1/2010. 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 claim petition is not maintainable in its present form and there is no cause of action as against the answering O.P and the same is liable to be rejected. That according to provision of law thev insurance company is not liable for death or injuries of pillion rider. That the contesting O.P. No.3 denied the fact that the death was caused due to motor accident involving the offending vehicle. That the insurance policy number in respect of the vehicle No. AS-15/A-9506 as mentioned by claimant petition has not been ascertained. It is further submited that amount of claim is exorbitant, arbitrary and without any legal basis and liable to be rejected. After hearing both the parties the following issues were framed :- ISSUES i) Whether the claim is maintainable in its present form? ii) Whether the claimant sustained injury/injuries due to the motor vehicle accident occurred on 12/3/09 caused by the vehicle No. AS/15/A-9506? iii) Whether the owner and driver or the insurance Co. Ltd. shall be liable to pay the compensdation? iv) Whether the claimant is entitled to claim compensation and if so what should be the just amount of compensation? cont. 3
-3- MAC CASE NO. 518/09 REAESONS AND DECISION ISSUES NO. 1 AND 2 7) The claimant have examined herself and another witness. 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 G.D. Entry No. 369 dated 12/3/09 a police case was registered and the date and time of the accident is 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 of adverse about involvement of the vehicle in the accident and it is proved with the registration of a case as per Accident Information Report. It can be held safely with vehicle No. AS-15-A- 9506 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 proved 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 Sham Nath Das and cause of death was injuries sustained in head and all the injuries were ante morten in nature caused by blunt force impact. 9) The deposition of P.W.1 Usha rani Das reveals the fact that Barpeta Road P.S G.D. Entry no. 369 dated 12/3/09 was recorded and it is the undisputed fact that the offending vehicle was involved in the accident and the cause of death of Sham Nath Das 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 vehicle as such issue No. 1 and 2 are decided in affirmative. ISSUES NO. 3 AND 4 10) Both the issues are taken jointly for decision. It is proved by the claimant that the offending vehicle was duly insured with the O.P. No.3 vide motorized two wheeler package policy bearing policy No. 322302/31/2005/5104 and contested O.P have not denied their policy issued in favour of the vehicle of the O.P. No.1. The accident was not denied and as such it appears from the record that the death of the son of the claimant has been caused in motor accident that took place on the fateful evening at Amtala, Barpeta Road as such since there is no evidence contrary to the fact about death of the son of the cont. 4
-4- MAC CASE NO. 518/09 claimant involving the present vehicle. It can be safely held that claimant is entitled to get compensation from the Oriental Insurance company. The plea taken by the O.P No. 3 in the W.S that the pillion rider is not entitled for compensation is no way proved by adducing any evidence. And on the other hand it is pointed out by the claimant referring to the copy of the policy that the offending vehicle was insured with package policy and as such pillion rider is also covered under the said policy. As the motor cycle was duly insured with them (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 claimant is entitled for compensation. To determined the amount of compensation it is necessary to determined the age of the deceassed and appropriate multiplier so that fair and reasonable compensation may be determined. 12) The income of the deceased was claimed to be Rs. 5,000 to 6,000/- per month from the source of vegetable business.the age is about 18 years as stated by the claimant. But however there is no specific prove as to the income of the deceased and his age. The opp. party have not established any fact adverse to the claim made by the claimant as to the age and income etc. 13) 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 in determining the said case the Hon'ble Apex court further refers the following cases : (I) (2005) 6 S.C 236: 2005 (2) T.A.C 305 (II) (1994) 2 S.C.C 176 : 1994 (1) T.A.C 323 (III) (1996) 4 S.C.C 362 : 1996 (2) T.A.C 286 (IV) 1942 (1) All. E.R 657 (H.L) (V) (1951) 2 All. E.R. 448 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 income @ Rs. 3,000/- per month. 14) If we consider the principle laid down in the aforesaid case then in the cont. 5
-5- MAC CASE NO. 518/09 present situation it is to be considered that the notional income of a abled bodied person 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. 36,000. 15) Now looking to the calculation of amount of loss of dependency as per multiplier then the age of the deceased is to be determined. In the present case the age of the deceased is determined as 18 years. In such a situation the choice of multiplier considering the enhancement of notional income and day to day rising of the price etc, the multiplier is to be determined as per ratio established in the case law Sarala Verma and others vs Delhi Transport Corporation & another. The multiplier method involved the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. 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 18 years and the age of the claimant is 40 years as per evidence in affidavit. 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 36 to 40 years will be 15 for determining the amount of compensation. 16) Again going to the question of computation of compensation it is necessary to determined 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 made applicable to self employed as well as those on fixed wage need to be enhanced by 50% where deceased is below 40 years of age. By accepting the principle laid down in above cases 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 (Bachelor) Compensation after multiplier of 15 is applied (v) Loss of estate Rs. 40,000/- (vi) Funeral expenses Rs. 25,000/- Rs. 3,000/- + Rs. 1,500/- = Rs. 4,500/- per month Rs. 4,500/- - Rs. 2,250/- = Rs. 2,250/- per month. Rs. 2,250/- X 12 X 15 = 4,05,000/- TOTAL COMPENSATON AWARDED Rs. 4, 70,000/-
17) It is already discussed that the accident occurred due to rash and negligent act on the part of the vehicle bearing registration No. AS-15-A-9506. Though the 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 shows the fact that driver had the licence bearing registration 1309/B/07. Above facts shows that the offending vehicle was driven by a driver having valid licence and owner as such has not violated the condition of the insurance policy. As per the claim petition and the accident information report the vehicle bearing No. AS-15-A-9506 is insured with the Oriental Insurance Co. Ltd., vide policy No. 322302/31/2009/5104 which is valid up to 22/01/10. Hence,the Oriental Insurance Co. Ltd., is liable to pay compensation. AWARD AND ORDER 18) It is ordered that the Oriental Insurance Co. Ltd., be directed to make payment of Rs. 4,70,000/- (Four lakhs and seventy thousands) only with interest @ 7% per annum from the date of filing the claim petition till realisation. The claimant shall also be entitled to Rs. 1,000/- as cost of this proceeding. 19) Accordingly Oriental Insurance company 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 than 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 19 th day of September 2014. Dictated and corrected by me. ( A. F. A. Bora) ( A. F. A. Bora) Member, MACT, Barpeta Member, MACT, Barpeta
Dictated and corrected by me. MAC CASE NO. 518/09 AWARD AND O R D E R 19/09/2014 Judgment is written on separate sheets and it is pronounced accordingly. It is ordered that the Oriental Insurance Co. Ltd., be directed to make payment of Rs. 4,70,000/- (Four lakhs and seventy thousands) only with interest @ 7% per annum from the date of filing the claim petition till realisation. The claimant shall also be entitled to Rs. 1,000/- as cost of this proceeding. Accordingly Oriental Insurance company 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 than 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 19 th day of September 2014. ( A. F. A. Bora) ( A. F. A. Bora) Member, MACT, Barpeta Member, MACT, Barpeta