IN THE COURT OF THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL SONITPUR AT TEZPUR

Present : Smti. M. Nandi., Member, Motor Accident Claims Tribunal, Sonitpur, Tezpur

MAC CASE NO. 77 of 2016 (I) Sri Gakul Chandra , S/O Late Kamal Chandra Gowami, R/O vill. Basantipur P.O.& P.S. Tezpur. Dist. Sonitpur, ...... Claimant.

-Versus-

1. Md. Mahammad Maksud Ansari S/O Md. Hasan Ansari, C/O Rai Carrier, Beharbari, Near Nilachal Prking, . Dist. Kamrup (M) Assam. [(Owner of the vehicle No. AS-01DD/6641(Truck)]

2. Md. Monir Ansari, S/O Md. Jan Mahammad Ansari, Kamal Purabi Phrowl Pokamalpur, Bithrowl. Dist. Kamrup, Assam. [(Driver of the vehicle No. AS-01DD/6641(Truck)]

3. The New Assurance Co. Ltd. Tezpur Branch, Main Road, Tezpur, [( Insurer of the vehicle No. AS-01DD/6641(Truck)]

4. Md. Abdul Khalek, S/O Late A. Ali, R/O A. Roy Jyotikuchi Kali Mandir, House NO. 31, Dist. Kamrup(M) Assam. [( Owner of the vehicle No.AS-01AP/7655)]

5. Md. Abdul Khalek S/O Late Asrab Ali Kaji R/O Vill.-Kathparagaon, P.S. Rupai, Dist. , Assam. Page 1 of 8

Temporarily residing at K.K. Raod, Tezpur-78001. Sonitpur, Assam. [( Driver of the vehicle No. AS- AS-01AP/7655)]

6. The Oriental Insurance Co. Ltd. Tezpur Branch, Main Road, Tezpur, Dist. Sonitpur, Assam. [( Insurer of the vehicle No. AS- AS-01AP/7655)]

ADVOCATES APPEARED

For the claimant :- Smti. D. Sinha, Advocate. For the O.P. No.1& 2 :-Ex-parte. For the O.P. No. 3 :-Sri P. Shetty, Advocate. For the O.P. 4. & 5 :-Ex-parte. For the O.P. 6 :-Sri M. Baruah, Advocate. Date of Argument :-16-02-2018. Date of Judgment :-27-02-2018.

J U D G E M E N T

This is an application u/s 166 of MV Act, 1988 filed by the claimant Sri Gakul Chandra Goswami for grant of compensation on account of injuries sustained by him in a motor vehicle accident. 1. The brief fact of the case is that on 16-12-15 at about 4-30 A.M. the claimant along with his daughter Gongotri Goswami were going towards Borjhar Air Port Guwahati from Tezpur via Nagaon in a vehicle bearing No. AS- 01/AP7655 (Swift Dezire)to see off his daughter for rejoining her job after official leave at Wells Fargo India Solution Private Limited, Hyderabad. On reaching Borghat Gulchakra under Borghat P.P. of Nagaon P.S. the vehicle bearing No. AS- 01DD/6641 ( Truck) over loaded with bamboo dashed the Swift Dezire vehicle in which the claimant and his daughter were travelling, from the back side and pushed the vehicle to a few metre and thereafter the offending vehicle along with the over loaded bamboo fell on the Swift Dezire vehicle . As a result the daughter of the claimant died on the spot and the claimant sustained grievous

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injuries on his person and immediately shifted to Civil Hospital, Nagaon and he has been referred to GMCH and due to his critical condition he was admitted to GNRC, Hospital, Guwahati. 2. After the accident, one case was registered vide Nagaon P.S. Case No. 150/15 u/s- 279/338/304(A)/427 IPC. At the time of accident, the vehicle( Swift Dezire) was insured with Oriental Insurance Co. Ltd. vide policy No. 321202/31/2015/3108 valid up to 27-09-16 and the offending vehicle bearing No. AS-01DD/6641 ( Truck) was insured with New India Assurance Co. Ltd. vide policy No. 53070631140100006646 valid up to 12-03-16. Through this claim petition, the claimant claimed compensation amounting to Rs. 30,00,000/- for the injuries sustained by him in a motor vehicle accident. 3. Against the claim petition, the O.P. No.1 i.e. New India Assurance Co. Ltd. insurer of the truck has submitted their written statement wherein it is admitted that the vehicle bearing No. AS-01DD/6641 (Truck) was insured with O.P. No. 3 at the time of accident but it is denied that O.P. No. 2 i.e. driver of the vehicle had any valid and effective driving licence to ply the vehicle at the time of accident. It is further stated that the alleged accident took place due to rash and negligent driving by the driver of the vehicle bearing No. AS-01AP/7655 (Swift Dezire). It is completely false that the said vehicle is not the vehicle of a friend of the claimant and the said vehicle is a private vehicle and the same was plied on the relevant date of accident as a commercial vehicle carrying passengers on hire by completely violating the terms and conditions of the insurance policy. As such, O.P. No. 3 is not liable to pay any compensation to the claimant and prayed to dismiss the claim petition. 4. O.P. No. 6 Oriental Insurance Co. Ltd. i.e. insurer of the Swift Dzire vehicle has submitted their written statement wherein O.P. No. 6 denied all about the accident to have been taken place on 16-12-15 at about 4-30 A.M. at Borghat Gulchakra at Nagaon under Nagaon P.S. There is no such rash and negligent driving by the driver of the alleged vehicle. The O.P. No. 6 is not liable for compensation as the alleged accident occurred due to mechanical defect and prayed to exonerate the O.P. No. 6 from the liability of paying any compensation to the claimant. 5. On the pleadings aforesaid, following issues were framed-

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1. Whether the accident took place due to rash and negligent driving by the driver of the Vehicle No. AS-01-DD/6641 (Truck) and AS- 01AP/7655 (Swift Dezire)? 2. Whether the claimant sustained injury due to the alleged accident? 3. Whether the claimant is entitled to any compensation, as prayed for and if yes, from whom and to what extent? 6. I have heard argument advanced by Learned Counsel of both sides. I have also perused the documents available in the record. Issue No. 1 and 2 7. The claimant was examined in the case as CW-1, who deposed in his evidence that on 16-12-15 at about 4-30 P.M. he along with his daughter Gongotri Goswami was going towards Borjhar Air Port, Guwahati from Tezpur via Nagaon in a Swift Dzire bearing No. AS-01/AP/7655 to see off his daughter who was supposed to leave for Hyderabad for rejoining her job after official leave at Wells Fargo India Solution Private Limited, Hyderabad. On reaching Borghat Gulchakra under Borghat P.P. under Nagaon P.S. another vehicle bearing No. AS- 01DD/6641 ( truck) overloaded with bamboo dashed the vehicle in which he was travelling along with his daughter from the back side and pushed the vehicle to a few metre and thereafter the said vehicle along with the overloaded bamboo fell on the vehicle in which he was travelling. As a result he along with his daughter came under the bamboo and the offending vehicle. Somehow he could manage to get out of the vehicle in which he was travelling but his daughter sustained grievous injuries and she died on the spot. He also suffered grievous injuries in various parts of his body including injuries on his abdomen, pelvis and lung with multiple ribs fractures. He was shifted to Nagaon Civil Hospital and he has been referred to GNRC, Guwahati for further treatment where he was treated from 16- 12-15 to 05-01-16. As he is serving in the State Bank of India as Asstt. Manager, hence, he was admitted as corporate patient and all the bills for his treatment was paid by the State Bank of India during his stay as indoor patient for the said period. 8. CW-1 has exhibited some documents as follows; Ext. 1 photo copy of accident information report (Form 54). Ext. 2 photo copy of accident information report (Form 54). Ext. 3 photo copy of police report. Page 4 of 8

Ext. 4 salary slip. Ext. 5 to 32 are bill/cash memo/vouchers. Ext. 33 to 36 are prescriptions. 9. In his cross-examination CW-1 has replied that his wife had filed a case in connection with death of his daughter and that case has been disposed of. It is to his personal knowledge that in the said case tribunal had hold contributory negligence of both the vehicles involved in the accident and had awarded equal compensation to be borne by both the Insurance Company. He was treated as a corporate patient at GNRC hospital and all the bills for his treatment were paid by SBI. 10. Ext. 23 is the police report given by In-charge of Borghat P.P. under Nagaon P.S. It is certified that on 16-12-2015 one Swift Dezire bearing No. AS- 01AP/7655 met with an accident as it was knocked down by one truck bearing No. AS-01DD/6641. As a result of the accident, the occupant of the Swift Dzire Gongotri Goswami died on the spot and Gakul Chandra Gowami was badly injured. In this regard, one case has been registered vide Nagaon P.S. case No. 150/15. 11. As it appears that in connection with the accident, the daughter of the present claimant Gongotri Goswami died on the spot and the claimant also sustained injuries, though Ext. 1 did not show the name of the claimant as injured but it is an admitted fact that the claimant was travelling along with his daughter on the date of accident in a Swift Dzire which met with an accident by involving another vehicle bearing No. AS-01DD/6641 and both the vehicles were insured at the relevant time of accident.

12. To determine the negligence of the driver of the offending vehicle, I am being guided by the judgment of Hon’ble High Court in the case of Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and it was held that, mere use or involvement of motor vehicle in causing bodily injuries or death to a human being or damage to property would made the petition maintainable under section 166 and 140of the Act. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition

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for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.

13. In view of the above, the claimant is able to prove that he has sustained injuries due to rash and negligent driving by driver of both the offending vehicles. Hence, issue No. 1 and 2 are decided in favour of the claimant. Issue No. 3 14. It is an admitted fact that both the vehicles were under Insurance coverage at the relevant time of accident. Hence, O.P. No. 3 i.e. New India Assurance Co. Ltd. and O.P. No. 6 i.e. Oriental Insurance Co. Ltd are liable to pay compensation to the claimant on equal share basis. 15. The claimant himself admitted that he was treated as a corporate patient at GNRC Hospital, Guwahati and all the bills for his treatment were paid by SBI. So, he is not entitled to get any amount regarding his treatment at GNRC Hospital, Guwahati. Ext. 5 to 8 are not considered in this case because as the number of vehicle has not been mentioned. No document has been furnished by the claimant regarding loss of his income. CW-1 also admitted that he has not submitted any document of monthly salary showing deduction had taken place from his salary during his treatment at GNRC. He has not submitted any document showing his disability. So, there is no question of his inability to do any work which hampers his service and he is still in service as Asstt. Manager, SBI Salonibari Branch. 16. In regard to non pecuniary damage, the claimant has suffered definitely pain and agony at the age of 57 years due to the alleged accident. So, an amount of Rs.10,000/- is awarded for pain and agony and another amount of Rs. 10,000/- is also awarded for loss of amenities. 17. Therefore, total compensation comes to Rs.10,000/-+ Rs.10,000/- = Rs. 20,000/- ( Rupees twenty thousand) only. 18. Hence, issue No. 3 is decided accordingly.

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O R D E R

In the result, the claim petition is allowed, awarding Rs. 20,000/- ( Rupees twenty thousand) only with interest thereon @ 6% per annum from the date of filing of the case i.e. 25-07-2016 till realisation. O.P No.3 and O.P.No.6 i.e. New India Assurance Co. Ltd. and Oriental Insurance Co. Ltd. are directed to make payment of 50% each of the aforesaid amount within a period of 30 ( thirty ) days from the date of receipt of order by way of account payee cheque in the name of the claimant Sri Gakul Chandra Goswami directly with an intimation to the Tribunal.

Given under my hand and seal on this 27th day of February, 2018.

(M. Nandi.) Member, Member, Motor Accident Claims Tribunal, Motor Accident Claims Tribunal, Sonitpur, Tezpur. Sonitpur, Tezpur.

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A N N E X U R E

1.Witness of the Claimants:

(i) Sri Gakul Chandra Goswami.

2. Witness of the Defence: None 3.Claimant’s Exhibits: Ext. 1 photo copy of accident information report (Form 54). Ext. 2 photo copy of accident information report (Form 54). Ext. 3 photo copy of police report. Ext. 4 salary slip. Ext. 5 to 32 are bill/cash memo/vouchers . Ext. 33 to 36 are prescriptions. 4.Exhibits of the defence :- Nil

(M. Nandi.) Member MACT, Sonitpur, Tezpur.

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