IN THE COURT OF MEMBER MOTOR ACCIDENT CLAIM TRIBUNAL, NAGAON (ASSAM) M.A.C. Case No.406/06 Md. Fazlul Karim: Claimant. -Vs- (1) National Ins. Co. Ltd., and (2) Sri Dipak Kr. Bora. : Opp. Parties. Present: Smti Selina Begum, Member M.A.C.T., Nagaon. Advocate for the claimant : Mr. D.B.Bora. Advocate for the National Ins. Co. : Mr. G.B.Goswami. Date of evidence : 07.04.12 & 14.05.12. Date of argument : 17.07.14, 15.09.14 & 29.09.14. Date of Judgment : 30.10.14. J U D G M E N T The present claim case has arisen out of a claim petition filed U/S 166 of the M.V.Act by one Md. Fazlul Karim for the injuries sustained by him in a motor vehicle accident. The case of the claimant in a nut shell is that on 23.06.03 while the claimant was travelling by the offending vehicle bearing registration no. AS-02/7516 from Kampur towards Nagaon and when the vehicle reached near Badalgaon, NH 37 another vehicle bearing registration no.amz-1151 (super bus) knocked behind the vehicle bearing no.as-02/7516 in which claimant was travelling. As the result of the accident the claimant sustained multiple injuries on her person and fracture injury at spine. The accident took place due to rash and negligent driving of the driver of the Tata Sumo bearing registration no. AMZ-1151 (super bus). The insurer of the Super bus the National Ins. Co. Ltd., in their written statement contended, inter-alia, that there is no cause of action; that the claim petition is not tenable in law; that the claim is highly excessive. The insurance company denied most of the averments made by the claimant in his claim petition and wanted a strict proof. It is submitted that the driver of the vehicle had no authorised valid driving licence at the relevant time of accident and hence the company is not liable to indemnify the owner. Rash and negligent driving on the part of the driver of vehicle no. AMZ-1151 (super bus) is also denied. The insurance company denied the age, income, occupation of the
injured as alleged in the claim petition. None has appeared on behalf of the O.P. No.2 inspite of receipt of notices and hence the case proceeded ex-parte against him. The following issues are framed for decision:- 1. Whether the claim petition is maintainable in its present form? 2. Whether the accident occurred due to rash and negligent driving of the driver of the vehicle nos.as-02/7516 and AMZ-1151 (super bus)? 3. Whether the claimant is entitled to receive compensation and if so to what extent and who is liable to pay the same? DECISION AND REASONS THEREOF Issue No 1 The claimant has filed this claim U/S 166 of the M.V.Act. In the claim petition the claimant impleaded the owner and also the insurer of the offending vehicle as party to the suit. The driver of the vehicle should have been impleaded but failure to implead the driver would not affect the claim case. The evidence of the claimant is that the incident occurred due to rash and negligent driving of the driver of the vehicle no. AMZ- 1151 (super bus). As accident is alleged to have occurred due to reckless and negligent driving of the driver of the vehicle no. AMZ-1151 (super bus) so as per my opinion the claim petition is maintainable. This issue is decided accordingly in favour of the claimant. Issue No.2 The claimant adduced evidence in support of his claim petition as P.W.1. He disclosed during his testimony that on the fateful day of accident i.e., on 23.06.03 while he was travelling by the offending vehicle bearing registration no. AS-02/7516 from Kampur towards Nagaon and when the vehicle reached near Badalgaon, NH 37 another vehicle bearing registration no.amz-1151 (super bus) knocked behind the vehicle bearing no.as-02/7516 in which he was travelling. He disclosed that as the result of the accident he sustained multiple injuries on his person resulting fracture injury at spine and immediately after the accident he was brought to B.P. Civil Hospital, Nagaon and GMCH, Guwahati. He alleged that the accident took place due to rash and negligent driving of the driver of the vehicle bearing registration no. AMZ-1151 (super bus). He has submitted various medical documents from Ext.2 to 4. During cross-examination he reiterated that the Super bus bearing no. AMZ-1151
was at high speed and it was driven in rash and negligent manner. Learned advocate for the National Ins. Co., the insurer of bus vehicle bearing no. AMZ-1151 argued strenuously that in the instant case there is no eye witness and the claimant has miserably failed to establish the fact relating to rash and negligent driving on the part of the driver of the offending super bus. It is also submitted that as claimant alleged that there was head on collision between the two vehicles so equal responsibility is to be fixed on both the vehicles. Learned advocate for the insurance company also submitted that there is also contributory negligence on the part of the other vehicle. It is the submission of learned counsel that the negligent driving of the vehicle no.as-02/7516 also contributed in the accident. The claimant reiterated during his evidence that the vehicle bearing no. AS- 02/7516 in which he was travelling was dashed by the vehicle bearing no.amz-1151 (super bus). In the claim petition also same fact was narrated without any deviation. So the claimant who is injured blamed the vehicle no. AMZ-1151 for the accident. Insurance side could not elicit anything to show that vehicle bearing no. AS-02/7516 was at fault. The O.P. has failed to rebut the said evidence of the claimant. Ext.2 accident information report shows that a case being Nonoi O.P. under Nagaon P.S. G.D.Entry No.411 dated 23.06.03 was registered regarding the accident caused by the offending vehicle bearing registration No. AMZ-1151 and Fazlul Karim was shown as the ill fated person who sustained injures due to the accident. The claimant's affidavit evidence and reply in cross-examination makes it clear that vehicle no. AMZ-1151 is responsible for the accident. The evidence of the claimant and accident information report proves the fact that the accident was caused due to rash and negligent driving by the driver of the vehicle bearing registration No.AMZ-1151 and that the claimant sustained injuries in the accident. Issue No.3 Ext. 2(i) the discharge certificate of B.P.Civil Hospital, Nagaon shows claimant was admitted into the said hospital on 23.06.03 and discharged on 25.06.03 for injury at back and doctor asked him to take bed rest for 3 weeks and check up after 2 weeks. Ext.2(ii) is the X-ray report of B.P. Civil Hospital, Nagaon dated 24.06.03 shows fracture in the spinuous process of L3 spine. Ext.2(iii) to 2(vi) are the advice slip of B.P. Civil Hospital, Nagaon. Ext.2(vii) the advice slip of GMCH, Guwahati dtd 05.12.07. Ext.2(viii) the x-ray report of right knee, L.S. Spine of B.P. Civil Hospital, Nagaon dated 16.12.07 shows no bony lesson. Ext. 2(x) is the examination report of GMCH, Guwahati. Ext.2(xii) the advice slip of B.P. Civil Hospital, Nagaon. Ext.2(xii) the blood
examination report. Ext.2(xiii) the prescription of Dr. Rofique Uddin Ahmed shows pain both limbs. Ext.2(xiv) is the advice slip of B.P. Civil Hospital, Nagaon. Ext.2(xv) the prescription of A.J.Hospital & Research Centre, Nagaon. Ext.2(xvi) the discharge certificate of B.P.Civil Hospital, Nagaon shows claimant was again admitted into the said hospital on 23.01.09 and discharged on 24.01.09. Ext.2(xvii). Ext.2(xvii) the advice slip of GMCH, Guwahati dated 13.02.09 where doctors advised the claimant to perform X-ray AP and lateral view of cervical thoracic spine and attend PMRT for Physiotherapy. Ext.2(xxii) the advice slip of GMCH, Guwahati dated 26.02.10 and 14.03.10 where doctor advised to attend PMRT for spinal extension exercise and to attend Ortho OPD after one week. Ext. 2(xxiii) shows early anterior marginal Osteophytes noted involving L3 and L4 Vertebral bodies. Ext.2(xxv) is the advice slip of GMCH, Guwahati shows avoid lifting heavy object, front bending and to continue exercise and review. Ext.2(xxvi) the prescription of Dr. R. Ahmed. In Ext.2(xxvii) and Ext.2(xxviii) advice slip of GMCH, Guwahati dated 06.07.11, 05.01.12 doctor observed LBA since 5 years and doctors advised bed rest for 7 days, hot formation, avoid forward bending/lifting heavy object and review after 1 week. Since the claimant sustained injuries in the motor vehicular accident due to fault of the driver of the offending vehicle no. AMZ-1151 so he is entitled to receive compensation. Now, it is to be determined what would be the just and proper compensation and who is liable to pay the compensation. I have carefully perused the cash memos. On perusal of the cash memos it appears that the claimant has expended an amount of Rs.20,615/- for his treatment. So he is entitled for this amount as pecuniary damages. Claimant disclosed that due to spinal injury he became permanently disabled. The claimant disclosed in the claim petition that he earned monthly Rs.3,000/- by working as daily wage earner. But he during cross admitted that he has a tailoring factory and at present the same is running by his wife. He though submitted one certificate Ext.5 regarding his employment at a Madrassa also where it is narrated that he drew an amount of Rs.3,000/- per month prior to accident as a teacher from School but after the accident only Rs.1000/- is paid due to h is inability to attend school regularly yet the said certificate is not proved by examining any person of the institution. For the spinal injury definitely he suffered loss of income as doctor of GMCH advised him to avoid front bending and lifting heavy articles. Definitely he could not assist the family during his treatment period as he did earlier. He was under treatment of doctor of GMCH upto 2012. Accident happened on 2003. He though submitted a disability certificate regarding his permanent disability to the extent of 45% but he has failed to
prove the same by examining the doctor. Considering all the above facts an amount of Rs.40,000/- is added as loss of income for the injury. The claimant suffered fracture injury in L3 spine and was under continuous treatment of B.P. Civil Hospital and GMCH, Guwahat for a long period i.e., upto 2012. Doctor advised him to avoid front bending due to his back pain. So for pain and suffering an amount of Rs.25,000/- is added. The claimant went to GMCH, Guwahati for treatment on several occasions. So an amount of Rs.6,000/- is added as conveyance expenditure. So he is entitled to get this amount as conveyance allowance. Thus, the total amount comes to Rs.91,615/-. Now the question is who is liable to pay the compensation to the claimant. It is already discussed that the accident occurred due to rash and negligent act on the part of the driver of the vehicle bearing no. AMZ-1151 (super bus). 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 no. F-3769/KA 195 Proof valid upto 28.03.06. 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 accident information report the vehicle bearing no. AMZ-1151 (super bus) is insured with National Ins. Co. Ltd., vide policy no.200703/31/03/6700293 valid upto 15.05.04. Hence, the National Ins. Co. Ltd., is liable to pay compensation to the claimant. AWARD AND ORDER Therefore, it is ordered that the National Ins. Co. Ltd., be directed to make payment of Rs.91,615/- 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. 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 30 th day of October/2014. Dictated & corrected by me:- Member, M.A.C.T., Nagaon. Member, Motor Accident Claim Tribunal, Nagaon(Assam).