IN THE COURT OF THE MEMBER, MOTOR ACCIDENT CLAIMS …

MAC No.7/15 and 8/15. Page No.1

IN THE COURT OF THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL,

NALBARI.

1. MAC No.7/2015

Parties:-

1. Sri Tarani Rajbongshi -claimant.

-V E R S U S-

1. Sri Shobh Nath Mishra

2. Driver since deceased

3. The Oriental Insurance Company Ltd. - Opp. Parties.

2. MAC No.8/2015

Parties:-

1. Sri Arup Rajbongshi

-claimant.

-V E R S U S-

1. Sri Shobh Nath Mishra

2. Driver since deceased

3. The Oriental Insurance Company Ltd. - Opp. Parties.

Present: Mr. A.K. Sarmah. LLM, AJS.

Presiding Officer/ Member

MACT, Nalbari.

Appearance:-


For the claimant (in both the cases) : Ld. Advocate Mr.R. Baishya

For the Opp. No.1 &2(in both the cases) : None has appeared.

For the Opp. No.3 (in both the cases) : Ld. Advocate Mrs. P.

Choudhury

Dates of evidence (in both the Case) : 8.9.15 & 16.10.15

Date of Argument (in both the case) : 23-02-2016.

Date of Judgment (in both the cases) : 29-02-2016.

In both the MAC cases the insurance company is the same. The opposite

parties are the same, the facts of both the cases, date, place and time of the

occurrence are the same, the offending vehicle is the same so, both the cases

are taken up together for hearing and being disposed of by this common

judgment and order.

(J U D G M E N T)

1. The claimant Sri Tarani Rajbongshi in MAC Case No.7/15 S/O: Lt.

Jethu Ram Rajbongshi resident of Village:- Pub kendukuchi under Nalbari

Police station (for short PS) in the District of Nalbari and the claimant Sri Arup

Rajbongshi S/O: Sri Ramani Rajbongshi in MAC Case No.8/15 resident

of Village:- Pub Kendukuchi under Nalbari Police station in the District of

Nalbari filed their respective claim application U/S 163-A and 166 of the Motor

Vehicles Act respectively 1988 (in short M.V. Act) claiming compensation to the

tuneof Rs.15,60,000/- and Rs.5.50,000/- respectively due to death of Jayanta

Rajbongshi son of the claimant Tarani Rajbongshi in MAC Case No.7/15 and

due to injuries sustained by Arup Rajbongshi the claimant in MAC Case

No.8/15.


2. The factual matrix of both the claim cases filed by the claimants in their

respective claim application can be stated as under:-

On 6.12.2013 while Jayanta Rajbongshi the son of claimant Tarani

Rajbongshi in MAC Case No.7/15 along with his handiman/labour Arup

Rajbongshi were coming from Guwahati towards Nalbari by driving the vehicle

having registration No.AS-01-DC/1984 Pik -up van(herein after referred as

offending vehicle) through Hajo Nalbari Road and when they reached at

Mugkuchi at that time due to rash and negligent driving of the driver of the

offending vehicle hit against a coconut tree at Mugkuchi at about 1.30 am. As a

result of the accident, Jayanta Rajbongshi lost his life and Arup Rajbongshi got

serious injuries. The near by people gathered at the place and shifted Jayanta

Rajbongshi and Arup Rajbongshi to SMK Civil Hospital, Nalbari where. As

Jayanta Rajbongshi died on the spot, therefore, his post mortem examination

was done at NalbariCivil Hospital,Nalbari. The claimant Arup Rajbongshi got

serious injuries on his person and he was referred from SMK Civil Hospital,

Nalbari to (Gauhati Medical College & Hospital(in short GMCH) where he was

treated for two weeks. For that accident, police was informed and a case was

registered vide Nalbari P.S. case No.1029/13 U/S 279/338/304(A)/427 of IPC. It

is also the case of the claimants that the offending vehicle was duly insured with

the opposite party No.3., the Oriental Insurance Company Ltd., and it had valid

insurance coverage at the time of accident. The claimant Tarani Rajbongshi in

MAC Case No.7/15 claimed Rs.15,60,000/- for the death of his son Jayanta

Rajbongshi and claimant Arup Rajbongshi in MAC No.8/15 claimed

Rs.5,50,00,000/- as compensation for the injuries sustained by him due to

vehicular accident.

3. On receipt of the claim petitions, notices were issued to the opposite

party No.1 the owner of the offending vehicle, to the opposite party No.3 i.e.,

the Oriental Insurance Company Ltd., the insurer of the offending vehicle in both


the cases. The opposite party No.2 driver of offending vehicle died on the spot in

the said accident.

4. On receipt of the notices from this Tribunal, the opposite party Nos. 1 & 3

appeared before this Tribunal in both the MAC cases. The opposite party Nos. 1

in spite of receipt of notice from this Tribunal though appeared before this

Tribunal in both the MAC cases but failed to submit its WS. However, the

Oriental Insurance Company Ltd., the opposite party No.3 in both the MAC

cases filed their WS. The opposite party No.3 in its WS neither admitted nor

denied the factum of accident but stated that they have no knowledge about

the accident. Further , the opposite party No.3 disowing all the allegation made

against it by the claimants and asked both the claimants to prove their case

byadducing cogent and reliable evidence.

5. The claimants in both the MAC cases examined themselves as CW 1 to

prove their cases. They were duly cross-examined by the Ld. counsel of the

opposite party No.3 i.e., the Oriental Insurance Company Ltd., in both the MAC

cases but in both the MAC cases the opposite party No.3 i.e., the Oriental

Insurance Company Ltd., did not adduce any evidence in support of its WS.

6. After gone through the claim petitions filed by the claimants in both the

MAC cases and the WS filed by the Oriental Insurance Company Ltd., in both

MAC cases, this Tribunal framed the following issues for just and proper

adjudication of both the MAC cases.

The issues are:-

(i) Whether the vehicle bearing registration No./ AS.01-DC-1984 met with an

accident on 6.12.13 at about 1.30 am At Hajo Nalbri PWD Road by

dashing against a standing tree due to rash and negligent driving of the

driver at Mugkuchi and in the said accident Jayanta Rajbongshi ,son of

claimant Tarani Rajbongshi lost his life and the claimant Arup

Rajbongshi got grievous injuries on his person ?


ii) Whether the claimants are entitled to get any compensation as prayed

for and if so to what extent and from whom?

(ii) To what other relief or reliefs the claimants are entitled to?

7. Decision and reasons for decision:-

8. I have heard arguments from both sides and perused the evidence on

record in both the MAC cases. After hearing both sides, this Tribunal is going to

decide the fate of both the MAC cases issue- wise.

( Issue No.1 & 2 :

Road accident now a days is a menace of the society. So many people

lost their lives or got injuries on account of vehicular accident due to rash and

negligent driving of the driver on the public road. A person getting injuries or

the relative of the deceased who lost his/her life due to vehicular accident on

road as a result of rash and negligent driving of the driver of the offending

vehicle he or she is entitled to get compensation under the M.V. Act.

9. The claimants in their respective claim application as well as in their

evidence as CW 1 clearly and categorically stated in both the cases that on

6.12.13 while Jayanta Rajbongshi son of claimant Tarani Rajbongshi and the

claimabt Arup Rajbongshi were coming on the offending vehicle from Guwahati

towards Nalbari through Hajo Nalbari PWD Road and when they reached at

Mugkuchi, the driver of the offending vehicle i.e. Jayanta Rajbongshi son of

claimant Tarani Rajbongshi dashed against a standing coconut tree The accident

took place due to rash and negligent driving of the driver Jayanta Rajbongshi.

As a result of accident Jayanta Rajbongshi. lost his life on the spot and the

claimabt Arup Rajbongshi was immediately shifted to SMK Civil Hospital and

from there to GMCH for treatment due to his injuries.

During the course of their evidence the claimant Tarani Rajbongshi in

MAC Case No.7/15 exhibited and proved several documents including Ext.1


P.M. examination report of his deceased , Ext.2 accident information report

along with other documens and vouchers. In MAC Case No.8/15 claimant

exhibited and proved Ext.1 discharged slip issued by SMK Civil Hospita, Ext.2

discharged certificate issued by GMCH, Ext.3 accident information report along

with other documens and vouchers.

10. From the oral evidence of CW1 together with the documentary evidence

i.e. Exhibit 1 & Exhibit 2 in MAC Case No.7/15 and Exhibit 1 , Exhibit 2 &

Exhibit 3 in MAC Case No.8/15 make the position clear that on the relevant

date, time and place there had been an accident due to rash and negligent

driving of the driver of the offending vehicle and in the said accident Jayanta

Rajbongshi son of claimant, Tarani Rajbongshi in MAC Case No.7/15 lost

his life and Arup Rajbongshi in MAC Case No.8/15 got grievous injuries on

his person and there is no reason to disbelieve the said fact.

Though both the claimants were duly cross examined by ld. counsel of

OP No.3 but failed to discredit their evidence. Therefore, the claimants are

entitled to get compensation in both the MAC cases.

11. Now the point to be decided in both the MAC cases what amount of

compensation the claimants are entitled to?

12. In MAC No.7/15 the claimant has claimed Rs.15,60,000/- as

compensation due to death of his beloved son in the vehicular accident. The

claimant in his claim petition clearly mentioned that at the time of death his

son was 27 years old. P.M. report Ext.1 proved the said fact. It is not

disputed that at the time of death the son of the claimant was un-married and

he himself drove the offending vehicle and met with an accident. To prove the

case u/s 163-A of the M.V. Act there is no need to prove rash and negligent

driving of the driver of the offending vehicle. The Tribunal is to see whether

the deceased used the said vehicle at the time of accident. CW 1 the claimant

clearly admitted that his son used the vehicle at the time of accident, as he


himself drove the vehicle. The claimant in his claim petition clearly stated that

his son earned Rs. 3300/-pm, therefore, this case is covered u/s 163-A of M.V.

Act. As the son of the claimant was unmarried , therefore, half of his

compensation will be deducted for his personal living expenses and remaining

half would be contributed to his family members. The claimant in his claim

petition nowhere stated about his age. But in cross-examination he stated

that he was 60 years old at that time. Therefore, his wife would be more than 55

years old at the time of death of their beloved son. Therefore, average age of

parents would be more than 55 years, Therefore, appropriate multiplier would

be 8 years. The claimant in his claim petition stated that at the time of death

his son was earning Rs.3300/-. Therefore his annual income would be Rs.

39,600/-. So, the compensation can be calculated as under :

Rs. 39,600/- devided by 2 X 8 = Rs. 1,58,400/-

The claimant is also entitled to Rs.20,000/- for love and affection due

to death of his beloved son. The claimant is also entitled to Rs.20,000/- for

funeral expenses.

Thus, the total amount of compensation the claimant is entitled to on different heads

as under:-

1. For Loss of dependency Rs.1,58,400/-

2. For love and affection Rs. 20,000/-

4. For Funeral expenses:- Rs. 20,000/-___

Total compensation:- Rs. 1,98,400/-

Thus, the total amount of compensation comes to Rs. 1,98,400/-(Rupees one

lakh ninety eight thousand four hundred) only. The said amount is awarded to

the claimant Tarani Rajbongshi In MAC No.7/15.


13. In MAC No.8/15 the claimant Sri Arup Rajbongshi claimed

Rs.5,50,000/- as compensation due to injuries sustained by him on account of

vehicular accident.

Ext.2 shows that the claimant got fracture injuries on his person. We

know that fracture is a grievous injury as defined u/s 320 of the Indian Penal

Code(in short IPC). As the claimant got grievous injuries , therefore, this

Tribunal awarded Rs. 25,000/- to the claimant for getting grievous injury. For

pain and suffering this Tribunal also awarded a lump sum of Rs. 10,000/- to

him. Documents exhibited and proved by the claimant showed that he had

exoebded Rs. 4,607/- . The amount shown in Ext.7(25) is rejected because it is

not known who has paid this amount. So also the case of Ext.7(26),7(27) &

7(28). As the claimant was undergoing treatment in SMK Civil Hospital as well

as at GMCH, therefore, this Tribunal awarded Rs.1000/- to the claimant as

convenience allowance. Ext.2 shows that the claimant was under going

treatment at GMCH from 30.5.2014 and discharged on 4.6.2014, i.e. for six

days, therefore, this Tribunal awarded Rs.600/- to the claimant for special died

during the period of his treatment as indoor patient. The claimant in his claim

petition stated that he was earing Rs.3000/- pm by doing labout work. This

Tribunal has admitted the said fact because the claimant at the age of 23 years

can easily earn Rs.3000/- pm by doing any kind of work. So this Tribunal

awarded Rs.600/- to the claimant for loss of income during the period of his

treatment.

Thus, the total amount of compensation the claimant is entitled to on different

heads as under:-

1. For grievous injuries:- Rs.25000/-

2. For pain and suffering:- Rs.10,000/-

4. For medical expenses:- Rs. 4,607/-


5.Towards special diet allowance:- Rs. 600/-

6. Towards loss of income:- Rs 600/

7. For convenience allowance:- Rs. 1,000/-

Total compensation:- Rs. 41,807/-

Thus, the total amount of compensation comes to Rs.41,807/- (Rupees forty

one thousand eight hundred seven) only.

14. Now another point to be decided in both the cases by whom of the

opposite parties the above amount of compensation is liable to be paid to the

claimants?

15. In both the MAC cases the owner and the Insurance Co. appeared before

this Tribunal but the owner i.e. O.P. No.1 did not file its WS. However, the

O.P.No.3 the Oriental Insurance Company Ltd., appeared before it and submitted

its Ws in both the MAC cases separately. But the Oriental Insurance Company

Ltd., in both the cases nowhere denied that the offending vehicle was not

insured with it and it had no insurance coverage at the time of the accident. So,

to the opinion of this Tribunal the Oriental Insurance Company Ltd., is obliged to

indemnify the owner and driver of the offending vehicle even if the owner and

driver did not come to contest in both the MAC cases.

16. It is to be noted that the driver of the offending vehicle i.e. O.P. No,.2 lost

his life in the said accident.

Therefore, both the issues in both the cases are decided accordingly.

( Issue No.3)

17. As discuss in issue No.1& 2 the claimants in both the above mentioned

cases are entitled to get compensation as per order.


( O R D E R )

18. In the result, both the claim petitions filed by the claimants are allowed.

The total amount of compensation to the tune of Rs. 1,98,400/-(Rupees one

lakh ninety eight thousand four hundred) only. as calculated on different heads is

awarded to the claimant Sri Tarani Rajbongshi in MAC case No.7/15.

The total amount of compensation to the tune of Rs.41,807/- rounded to

Rs.41,810/- (Rupees forty one thousand eight hundred ten) only.as calculated

on different heads is awarded to the claimant Sri Arup Rajbongshi in MAC case

No.8/15. The Oriental Insurance Company Ltd., is directed to pay the said

amount of compensation to the claimants in both the MAC cases within 60 days

from today failing which an interest @ 6% per annum be calculated from the

date of this order on the awarded amount until realization.

19. Let copy of the judgment be furnished to the opposite party No.3 i.e. the

Oriental Insurance Company Ltd., within 15 (fifteen) days from today as per

Provisions of Section 168 (2) of the M.V. Act.

20. Both the MAC Cases are disposed of accordingly, on contest.

21. Judgment prepared, signed and pronounced, today the 29th Day of

February ‘2016 in the open court in both the cases.

Presiding Officer/ Member,

MACT, Nalbari.


( O R D E R )

29-02-2016.

Both sides are present.

In the result, both the claim petitions filed by the claimants are allowed.

The total amount of compensation to the tune of Rs. 1,98,400/-(Rupees one

lakh ninety eight thousand four hundred) only. as calculated on different heads is

awarded to the claimant Sri Tarani Rajbongshi in MAC case No.7/15.

The total amount of compensation to the tune of Rs.41,807/- rounded to

Rs.41,810/- (Rupees forty one thousand eight hundred ten) only.as calculated

on different heads is awarded to the claimant Sri Arup Rajbongshi in MAC case

No.8/15. The Oriental Insurance Company Ltd., is directed to pay the said

amount of compensation to the claimants in both the MAC cases within 60 days

from today failing which an interest @ 6% per annum be calculated from the

date of this order on the awarded amount until realization.

Both the MAC Cases are disposed of accordingly, on contest.

Presiding Officer/ Member,

MACT, Nalbari.
