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IN THE COURT OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL,

PRESENT: Smti. I. Barman, A.J.S. Member, Motor Accident Claims Tribunal, Golaghat,

MAC CASE NO. 147/2010 (Under Section 166 of the MV Act)

1. SRI MONUJ RONGPI S/O. Late Gaonbura Rongpi, Vill- Panbari Hanse Gaon, P.O-Siljuri, Bokakhat, Dist-Golaghat, Assam ……. Claimant.

- VERSUS –

1. DR. KHIRA KT. DAS, S/O Sri Hari Kt. Das, Vill & P.O- Senchowa Gaon, Dist-Nagaon, Assam. (Owner/driver of Swift No. AS-02/F-3142)

2. THE MANAGER, Bajaj Allianz General Insurance Co. Ltd., 2B, 2nd Floor, Centre Point, G.S. Road, Ulubari, -781007 Policy No. OG-11-2405-1801-00002733 Valid from 01.09.2010 to 31.08.2011 (Insurer of Swift Dzire No. AS-02/F-3142)

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3. SRI SHANKARLAL PATUARY, S/O Late Raghunath Patuary, Vill- Koraiati Gaon, P.O.:- Bokakhat, Dist-Golaghat, Assam. (Owner of Motorcycle NO. AS-05/D-3058)

4. THE MANAGER, National Insurance Co. Ltd. Golaghat Branch, Policy No. 200207/31/09/6200001909 Valid from 04.12.2009 to 03.12.2010 (Insurer of Motorcycle No. AS-05/D-3058)

……Opp.Parties

Advocate for the claimant : Mr. A. Mazid. Advocate for the O.P No.2 : Mr. G. Baruah Advocate for the O.P No.4 : Mr. P. Singh, Date of Argument : 27.05.2015 Date of Judgment : 08.06.2015

J U D G M E N T

1. This claim case arose out of a petition filed u/s 166 of the Motor Vehicle Act, (M.V.A. in short), by the claimant Monuj Rongpi claiming compensation from the opposite parties on account of injuries sustained by him in a Motor Vehicle Accident.

2. The case of the claimant, in brief, is that on 16.09.2010 at about 7.30 P.M, he was travelling by the motorcycle bearing registration No. AS-05/D- 3058 as pillion rider from Bokakhat to Siljuri driven by one Dhananjoy Bora and on their reaching near Methoni Tea Estate under Bokakhat Police Station, one

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Maruti Swift Dzire bearing registration No.AS-02/F-3142 coming from opposite direction in a rash and negligent manner at a very high speed without any care and caution collided against the motorcycle bearing No. AS-05/D-3058. As a result of which both the riders of the motorcycle were thrown five meters away from the place of occurrence while the motorcycle got badly damaged. In the accident, both the riders of the motorcycle sustained grievous injuries on their person. Later on Dhananjoy Bora succumbed to the injuries on 17.09.2010. Immediately after the accident, the injured was taken to Bokakhat F.R.U, wherefrom he was referred to Medical College & Hospital, Jorhat. Thereafter the injured was taken to Zpain & Fracture Clinic, Jorhat and treated there as indoor patient for a day. On 21.09.10 ORIF with K-Nail was done over the fractured limbs. After the accident, the injured became a permanent partial disable person for the rest of his life. It is further mentioned that the accident took place due to rash and negligent driving of the driver of the maruti Swift bearing No. AS-02/F-3142 and with regard to the accident Bokakhat P.S. case No. 145/10 (G.R No. 1000/10) u/s 279/304(A)/338 IPC was registered against the driver of the Maruti Swift. Hence claimed Rs. 9,00,000.00 from the opposite parties as compensation.

3. In spite of receipt of notice, opposite party No. 1, owner cum driver of Swift No.AS-02/F-3142 and opposite party No. 3, i.e. owner of Motorcycle No. AS-05/D-3058 did not contest the case and hence the case was proceeded ex-parte against them.

4. Opposite party No. 2, i.e. Bajaj Allianz General Insurance Co. Ltd., the insurer of Swift Dzire No. AS-02/F-3142 by filing written statement contended inter-alia that the claim petition is barred by principles of estoppels, waiver, and acquiescence. The answering opposite party put the claimant to make strictest proof with regard to the alleged accident, age, income and occupation of the injured, insurance policy, driving licence, rout permit, fitness certificate, police report, etc and also denied the rash and negligent driving on the part of the driver of the Swift Dzire bearing No.AS-02/F-3142. The

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answering opposite party submitted that the accident took place due to sole and contributory negligence of the rider of the motorcycle bearing registration No. AS-05/D-3058 and hence prayed to dismiss the claim petition.

5. Opposite party No. 4, i.e. National Insurance Co. Ltd. the insurer of the motor cycle No AS-05/D-3058 also entered its appearance and by filing written statement pleaded that the claim petition is not maintainable and there is no cause of action for filing the claim petition. Denying the rash and negligent driving on the part of the driver of motorcycle No. AS-05-D-3058, the answering opposite party put the claimant to make strictest proof with regard to the alleged accident, age, occupation and income of the injured, driving licence etc. and submits that claimant’s claim is excessive and without material basis.

6. On the basis of the pleadings of the parties, the following issues are settled:

i) Whether there was any rash and negligent driving on the part of the driver of vehicle No. AS-02/F-3142 (Swift Dzire) or AS- 05/D-3058 (Motorcyle) that cause the accident on 16.09.2010 at about 07:30 P.M on N.H. No. 37 near Mehoni Tea Estate under Bokakhat police Station?

ii) Whether the claimant Sri Monuj Rongpi sustained any grievous injuries as a result of such accident?

iii) Whether the claimant is entitled for any compensation, if so, what would be the proper quantum?

iv) Any other relief?

7. In course of hearing, the claimant has examined himself by filing evidence on affidavit and contesting opposite party No. 2 Bajaj Allianz General Insurance Co. Ltd and opposite party No. 4, National Insurance Co. Ltd. duly cross-examined him.

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8. I have heard argument from both the sides and carefully gone through the evidence of record. My findings in respect of the above noted issues, in view of the evidence on record and in the light of the submission of the learned counsel from both the sides are as follows:

9. Issue No. (i) & (ii):

The claimant Sri Monuj Rongpi has averred in the claim petition and also stated in evidence as CW-1 that on 16.09.2010 at about 7.30 P.M, he was travelling by the motorcycle bearing registration No. AS-05/D-3058 as pillion rider driven by Dhananjoy Bora from Bokakhat to Siljuri and on their reaching near Methoni Tea Estate under Bokakhat Police Station, one Maruti Swift bearing registration No.AS-02/F-3142 coming from opposite direction in a rash and negligent manner at a very high speed without any care and caution, collided against the motorcycle bearing No.AS-05/D-3058 as a result of which, both the riders of the motorcycle were thrown five meters away from the place of occurrence while the motorcycle got badly damaged. He further stated that in the accident, both the riders of the motorcycle sustained grievous injuries on their person and later on Dhananjoy Bora succumbed to the injuries on 17.09.2010. Immediately after the accident, he (CW1) was taken to Bokakhat F.R.U, wherefrom he was referred to Jorhat Medical College & Hospital, Jorhat and treated there as indoor patient for a day. Thereafter on 21.09.10 he was taken to Pain & Fracture Clinic, Jorhat and Open Reduction and Internal Fixation (ORIF) with K-Nail was done on 21.09.10 over his right forearm. He clearly stated that the accident took place due to rash and negligent driving of the driver of the Swift No. AS-02/F-3142 and with regard to the accident, Bokakhat P.S. Case No. 145/10 (G.R No. 1000/10) u/s 279/304 (A)/338 IPC was registered against the driver of the said Swift No. AS-02/F-3142. In support of the evidence he proved the Accident Report as Ext.1, certified copy of FIR as Ext.2, discharge slip as Ext.3, requisition for X-ray as Ext.4, employment cum Salary certificate as Ext.5, medical expenditure statement as Ext.6 and X-ray film as Ext-7.

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10. From the evidence of C.W.1 and other documents proved in this case, it reveals that the claimant sustained injury due to the motor vehicle accident occurred on 16.09.2010. The Accident Report Ext.1 issued by Bokakhat Police Station also shows that on 16.09.10 at about 7:30 P.M. the accident took place on NH. 37 way near Methoni Tea Estate, involving the Motorcycle No AS- 05/D-3058 and vehicle No.AS-02/F-3142 (Swift Dzire) showing Sri Monuj Rongpi the present claimant as injured. The claimant clearly stated that the accident took place due to rash and negligent driving of the driver of vehicle No. AS- 02/F-3142 Maruti Swift. From the evidence of C.W.1 it appears to me that there was rash and negligence on the part of both the driver of AS-02/F-3142. During cross examination, nothing could be elicited with regard to rash and negligent driving of the Maruti Swift. The opposite party did not adduce any rebuttal evidence so far the rash and negligent driving of the offending vehicle concerned. Thus from the evidence of the injured/claimant both oral and documentary and in absence of any legal evidence, contrary thereto, I am of the opinion that the accident took place solely due to rash and negligent driving of the driver of the offending Maruti Swift AS-02/F-3142 and the claimant sustained injury in the said accident occurred on 16.09.10 at about 7.30 P.M. Accordingly these two issues are decided in favour of the claimant.

11. Issue No. (iii) & (iv) :

These two issues relate to the entitlement of the claimant for compensation and extent thereof as well as liability of the opposite party to pay compensation.

12. In view of the forgoing discussion I am of the opinion that the claimant being the injured is entitled to get compensation. The claimant in his evidence stated that he sustained fracture of both bones of right forearm, deep cut injuries over penis requiring three stitches, internal chest injuries and injuries over left leg and after the accident he was taken to nearby Bokakhat F.R.U. wherefrom he was taken to Jorhat Medical College & Hospital, Jorhat and treated there as indoor patient for a day. Subsequently the injured was taken

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to Pain & Fracture Clinic, Jorhat on 21.09.10 and Open Reduction and Internal Fixation (ORIF) with K. Nail was done on 21.09.10 over his right forearm. The claimant further stated that he incurred an expenditure of Rs. 50,000/- (Rupees fifty thousand) towards his treatment. But he submitted cash memos and bills worth of Rs. 17,442/-. As such the claimant is entitled to get this amount as medical expenses. Moreover, the discharge certificate proved as Ext. 3 shows that the injured was admitted in Pain & Fracture Clinic, Jorhat on 21.09.10 and was discharged on 22.09.10 and ORIF was done. So pain and suffering is there and he must have incurred some miscellaneous expenses during his treatment. Therefore the following amount will be just and reasonable that the claimant is entitled to:

Sl. No. Purpose Amount 1. Medical expenses Rs. 17,442.00

2. Pain and suffering Rs. 10,000.00

3. Miscellaneous expenses Rs. 5,000.00 4. Total Rs. 32,442.00 Rounded off to Rs. 32,450.00/- (Rupees Thirty Two Thousand Four Hundred and Fifty Only)

13. The offending vehicle bearing No. AS-02/F-3142 (Swift Dzire) was insured with the opposite party No.2/Bajaj Allianz General Insurance Co. Ltd. at the time of accident. Therefore the opposite party No.2/ Bajaj Allianz General Insurance Co Ltd is to satisfy the award.

O R D E R

14. In the result the claim petition is allowed on contest. Claimant is awarded a total compensation of Rs. 32,450.00 (Rupees thirty two thousand four hundred fifty only) for the injuries sustained by him in the motor vehicle accident. The amount of compensation shall carry an interest @

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9% per annum from the date of filing of the claim petition i.e. from 26.11.10 till its realization. The Opp. Party 2/ Bajaj Allianz General Insurance Co. Ltd. is directed to pay the amount within the period of 60 days from today i.e. 08.06.15 including the interest thereon as mentioned above.

15. Send a copy of the judgment to the Opposite party No. 2 i.e. Bajaj Allianz General Insurance Co. Ltd for information and necessary action.

16. Given under my hand and seal of this court on this 8th day of June, 2015 at Golaghat.

Dictated & corrected by me.

Member, Member, Motor Accidents Claims Tribunal Motor Accidents Claims Tribunal Golaghat. Golaghat.

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