Page 1 of 8 in the COURT of the MEMBER, MOTOR ACCIDENT

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. 213 of 2011(I)

1. Md. Yasin Ali S/O Md. Ason Ali R/O Village –Jayantipur P.S.-Kaliabar Dist.-Nagaon, Assam…………………. Claimant. -Versus-

1. Md. Fazlun Rahman, S/O Najimuddin Ahmed C/O Najimuddin Khan of Kaliabar, Ward No. 13 near Mazid Hill side Guwahati. Dist- Kamrup, Assam

2. Md. Nabab Sarif C/O Md. Fazlun Rahman S/O Najimuddin Ahmed C/O Nijumuddin Khan of Kaliabar Ward No. 13 near Mazid Hill side Guwahati. Dist- Kamrup, Assam

3. Oriental Insurance Co. Ltd. Divisional Office, Tezpur, P.O. & P.S. Tezpur. Dist. Sonitpur, Assam……….……Opposite parties.

ADVOCATES APPEARED

For the claimant :-Sri S. Khan, Advocate. For the O.P. No.1& 2 :-Ex-parte. For the O.P. No. 3 :-Sri L. Borah, Advocate.

Date of Argument :-13-11-2017. Date of Judgment :-27-11-2017.

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J U D G M E N T

This is an application u/s 166 of MV Act, 1988, filed by the claimant Md. Yasin Ali claiming compensation on account of injuries sustained by him in a motor vehicle accident.

1. The brief fact of the case is that on 05-04-11 the claimant was proceeding in a motor vehicle bearing No. AS-03TC/005A towards Jorhat from Kowarital side and when reached at Burapahar under Jakhalabandha P.S. one Bolero vehicle bearing No. AS-01CC/5946 coming in a rash and negligent manner from Jorhat side hit the vehicle bearing No. AS-03TC/005A in which the claimant was travelling and the said vehicle was capsized. As a result the claimant sustained grievous injuries on his person. He was brought to Kuthori Civil Hospital and thereafter he took treatment under Dr. D. Deka, Orthopedic Surgeon, Tezpur.

2. After the accident, one case was registered vide Jakhalabandha P.S. case No. 36/2011. At the time of accident, the offending vehicle was insured with Oriental Insurance Co. Ltd. vide policy No. 322302/31/2011/1454 valid up to 21- 05-11.

3. Against the claim petition, O.P. No. 3 i.e. insurer of the Balero vehicle bearing No. AS-01CC/5946 has submitted written statement wherein it is stated that the instant claim of the claimant is vague and without any basis whatsoever and hence deserves to be dismissed. It is denied that the accident occurred due to rash and negligent driving by the driver of the Bolero vehicle; rather it was the fault of the driver of the vehicle in which the claimant was travelling for which the accident took place and prayed to dismiss the claim petition.

4. The notices were served to the O.P. No. 1 and 2 i.e. owner and driver of the offending vehicle bearing No. AS-01CC/5946 (Bolero) but they did not appear before the court. Hence, the case was proceeded ex-parte against them.

5. On the pleadings aforesaid, the following issues were framed –

I. Whether the alleged accident took place due to rash and negligent driving by the driver of the vehicle bearing No. AS-01CC/5946(Bolero) Page 2 of 8

and whether the claimant has sustained injury due to the alleged accident?

II. Whether the claimant is entitled to get any compensation as prayed for and if so, 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

7. The claimant was examined in the case as CW-1 who deposed in his evidence that on the date of accident while he was proceeding in a vehicle bearing No. AS-03TC/005A towards Jorhat from Kowarital side and when reached at Burapahar under Jakhalabandha P.S., one Bolero vehicle bearing No. AS- 01CC/5946 (Bolero) coming in a rash and negligent manner hit the vehicle in which he was travelling. As a result, the vehicle capsized and he sustained grievous injuries on his person. His left elbow has been fractured. He also sustained injury on his head, face and eyes.

8. CW-1 has exhibited the following documents –

Ext. 1 Form 54 (Accident Information Report).

Ext. 2 discharge certificate of Skylark Hospital.

Ext. 3 prescription of PHC.

Ext. 4 to 4(1) laboratory reports.

Ext. 5 to 5(2) X-ray plates.

Ext. 6 disability certificate.

Ext. 7 to 7(7) challan.

Ext. 8 to 8(1) photocopy of injured.

9. In his cross-examination CW-1 replied that he did not remember the number of Bolero vehicle. The accident occurred on 05-04-11 at about 12-00

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noon. On that day, he was going from Kuwarital to Jorhat. He was hired a Tempo vehicle loaded with clothes. In the Tempo he and driver were travelling. The accident took place on the turning at Burapahar. At the turning usually vehicles move slowly.

10. Ext. 1 is the accident information report, from which it reveals that an accident occurred on 05-04-11 at about 1-00 P.M. at Burapahar and the claimant Md. Yasin Ali was injured in the said accident. The vehicle bearing No. AS- 01CC/5946 ( Bolero) was involved in the accident.

11. In the case of Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC, it was held that 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 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 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.

12. Further in the case of Bimla Devi and Ors. V Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 where it was held as under: “It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."

13. In view of the above, the claimant is able to prove that he has sustained injuries due to rash and negligent driving by the driver of the vehicle bearing No. AS-01CC/5946 ( Bolero) .Hence, issue No. 1 is decided in favour of the claimant.

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Issue No. 2

14. It is an admitted fact that the offending vehicle was insured with Oriental Insurance Co. Ltd. vide policy No. 322302/31/2011/1454 valid up to 21-05-11. The accident occurred on 05-04-2011. It transpires that the accident occurred during the subsistence of the policy of the offending vehicle. So, O.P.No.3 i.e Oriental Insurance Co. Ltd. is liable to pay the compensation to the claimant.

15. According to the claimant, after the accident he was taken to Kuthori PHC. After that he took treatment in different hospitals at Tezpur. Ext. 3 is the prescription which shows that the claimant was taken to Kuthori PHC on the date of accident i.e. on 05-04-11 and he has been referred to Jakhalabandha CHC. Ext. 2 is the discharge summary of Skylark Hospital and Research Centre, Tezpur from which it reveals that the claimant was admitted to Skylark Hospital and Research Centre, Tezpur on 05-04-11 and discharged on 07-04-11. On examination doctor found commuted fracture on left elbow joint of the claimant. The claimant has also submitted X-ray plate showing fracture on his elbow joint. From the medical documents available in the record, it reveals that the claimant sustained grievous injuries on his person.

16. As per claim petition, he was doing business at the time of accident and his monthly income was Rs. 15,000/- but no any document has been furnished by the claimant showing his monthly income or what type of business he was doing at the relevant time of accident.

17. In his evidence the claimant stated that due to the alleged accident his left elbow was fractured and after the accident, he was not in a position to do his ordinary pursuit, for which he has been facing great hardship and he became disabled. He has also appeared before the District Disability Rehabilitation Centre, Sonitpur, Tezpur to assess his disability and after examination him the Board of Doctor has assessed 45% disability. Vide Ext. 6 the claimant has submitted Identity Card showing 45% disability. Ext. 6 was issued by District Social Welfare Officer, Sonitpur Tezpur. The person who issued Ext. 6 was not examined in this case. From Ext. 6 it cannot be ascertained when the claimant was produced before the Board of Doctors and when he was examined. The

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names of Board of the Doctors who examined the claimant has also not been mentioned in Ext. 6. Ext. 6 is also silent whether disability of the claimant has been assessed as temporary or permanent disability.

18. Under such circumstances, Ext. 6 is not considered in this case. However, the claimant is entitled to get the expenditure incurred by him for his treatment. The claimant has submitted medical documents along with vouchers/cash memos etc. amounting to Rs 48,695/-.So, total pecuniary damage comes to Rs.48,695/-.

19. In regard to non pecuniary damage, the claimant has suffered definitely pain and agony at the age of 26 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.

20. Therefore, total compensation comes to Rs. 48,695/-+Rs.10,000/-+ Rs.10,000/- + = Rs. 68,695/- ( Rupees sixty eight thousand six hundred ninety five) only.

21. Hence, issue No. 2 is decided accordingly.

O R D E R

In the result, the claim petition is allowed, awarding Rs. 68,695/- ( Rupees sixty eight thousand six hundred ninety five) only with interest thereon @ 6 % per annum from the date of filing of the petition i.e. on 31.10.2017 till full and final realization. The O.P. No. 3 i.e. Oriental Insurance Co. Ltd., is directed to deposit the awarded amount in favour of the claimant Md. Yasin Ali with United Bank of India, Main Branch, Tezpur against account of the claimant within a period of 30 ( thirty ) days from the date of receipt of the order.

The claimant Md. Yasin Ali shall furnish all the relevant documents for opening of the Savings Bank Account to the Branch Manager, United Bank of India, Main Branch, Tezpur.

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On the request of the claimant Md. Yasin Ali the bank shall transfer Savings Bank Account to any other Branch of United Bank of India according to his convenience.

The O.P. No. 3 i.e. Oriental Insurance Co. Ltd. is directed to submit the compliance report of having deposited the awarded amount with United Bank of India, Tezpur Main Branch within 30 (thirty) days from today.

Given under my hand and seal on this 27th day of November, 2017.

Dictated and corrected by me.

( 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 Claimant:

(i) Md. Yasin Ali.

2. Witness of the Defence:

Nil 3.Claimant’s Exhibits: