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BEFORE THE MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL CACHAR: :

Present: Shri Abubakkar Siddique, A.J.S Member, Motor Accident Claims Tribunal, Silchar.

MAC CASE No. 175/2017 Sri Joydip Roy @ Joydeep Roy @ Tutan Roy S/o- Babul Roy R/o- Madhupur Part-II, P.O.- Madhura P.S.- Udharbond, Dist-Cachar, Assam ... CLAIMANT

– V E R S U S – 1. Mr. Nabin Barman S/o Late Moni Chandra Barman Vill- Ratanpur, P.O.- Madhura P.S.- Udharbond Dist- Cachar, Assam. : Owner of the Truck

2. Sri Pranab Roy S/o- Late Promode Chandra Roy Hospital Road, P.O. & P.S.- Udharbond Dist- Cachar, Assam. : Owner of the Maruti van

3. Sri Monjit Barman S/o- Madhab Barman Vill- Ratanpur, P.O.- Madhura P.S.- Udharbond, Dist- Cachar, Assam. : Driver of the Truck

4. The National Insurance Co. Ltd. Represented by The Divisional Manager The National Insurance Co. Ltd. Capital Travels Building, Club Road Silchar, Dist- Cachar, Assam. : Insurer of the Truck

5. The New Assurance Co. Ltd Represented by The Divisional Manager The New India Assurance Co. Ltd. Capital Travels Building, Silchar Dist- Cachar, Assam. : Insurer of the Maruti van ...OPPOSITE PARTIES APEAREANCE: Shri Abhijit Choudhury, Ld. Advocate : For the claimant Shri Kamalendu Nag, Ld. Advocate : For National Insurance Shri Chiranjeeb Paul, Ld. Advocate : For New India Assurance

Date of Accident : 16-10-2016 Date of Institution : 17-04-2017 Date of Argument : 30-01-2019 Date of Judgment : 01-02-2019

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J U D G M E N T 1. This claim case has arisen out of an application filed by Joydip Roy @ Joydeep Roy @ Tutan Roy for award of compensation for sustaining injury sustained due to motor accident took place on 16-10-2016 at about 5:45 p.m. on P.W.D. Road, Nagar No. 5 under jurisdiction of Udharbond P.S. in the District of Cachar.

2. Case in brief is that on 16-10-2016 the Truck bearing Registration No. AS-11-1605 was proceeding towards Madhura from Udharbond being driven by the driver in a most rash and negligent manner and at an excessive speed and at about 5:45 p.m. when the said Truck reached PWD road due to excessive speed the driver lost control over the vehicle and dashed an opposite coming Maruti van bearing Registration No. AS-11-B-6175 and thus the accident took place. As a result claimant who was occupant of the Maruti van sustained grievous injuries. Immediately after the accident claimant was taken to Udharbond PHC for medical examination and treatment.

3. The claimant arrayed owner, driver and insurer of the Truck as OP1, OP3 and OP4 respectively. The owner and insurer of the van have been also arrayed as OP2 and OP5 respectively. On registering the case Notice was served on the OPs. Both the Insurance Companies contested the case by filing written objection and denying each other’s liability.

4. During hearing the claimant adduced himself as PW1 on affidavit and produced as many as 11 documents including cash memos of Rs. 6655/-. The National Insurance Co Ltd being insurer of the offending vehicle cross-examined the PW but has not adduced any defence witness.

5. Heard argument advanced by learned counsel of both sides and perused the evidences available on record. During argument learned counsel of the claimant and learned counsel of New India Assurance Co Ltd argued that the accident took place due to rash and negligent driving of the driver of the Truck insured with National Insurance Co Ltd. Learned counsel of the National Insurance Co Ltd argued that the accident took place due to head on collision for which both the vehicles are liable for the accident. Heard. Following issues are framed for proper adjudication:

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I S S U E S 1. Whether the claimant sustained injury due to motor accident on 16-10-2016 and the accident took place due to rash and negligent driving of the driver of the Truck bearing Regn No.AS-11-6505? 2. Whether the claimant is entitled compensation? If so what amount of compensation is just and proper? 3. To what other relief/reliefs the claimant is entitled? 4. Who is liable to pay compensation to the claimant?

DECISIONS AND REASONS THEREOF

Issue No.1 1. The claimant adduced himself as PW1 on oath and deposed that on 16-10-2016 the Truck bearing Registration No. AS-11-1605 was proceeding towards Madhura from Udharbond being driven by the driver in a most rash and negligent manner and at an excessive speed and at about 5:45 p.m. when the said Truck reached PWD road due to excessive speed the driver lost control over the vehicle and dashed an opposite coming Maruti van bearing Registration No. AS-11-B-6175 and thus the accident took place. As a result claimant who was occupant of the Maruti van sustained grievous injuries. Immediately after the accident claimant was taken to Udharbond PHC for medical examination and treatment.

2. During cross-examination nothing adverse could be elicited. Claimant deposed during cross-examination that two vehicles were involved in the accident. I have perused the FIR and Charge Sheet. FIR was lodged stating that the driver of the Maruti van was driving the Maruti van in a smooth manner but driver of the Truck driving the same in rash and negligent manner and in excessive speed dashed the Maruti van. On receipt of the said FIR Udharbond P.S. case No. 25/17 u/s 279/338/427 IPC was registered and investigated. As per the Seizure Lists both the vehicles were seized. During investigation police submitted charge sheet stating that a prima facie case u/s 279/338/427 IPC was found well established against driver of the Truck namely Monjit Barman. Therefore, it has been established that the accident took place due to rash and negligent driving of the driver of the Truck.

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3. On perusal of the Medicolegal Injury report vide Ext-4 it is found that claimant was treated on 16-10-2016 and he sustained various injuries. Hence, it is established that claimant met the accident, sustained injuries and the accident took place due to rash and negligent driving of the driver of the Truck. No rash and negligent driving has been established against driver of the Maruti van. Mere arguing that the accident took place due to head on collision can not establish rash and negligent driving of both the vehicles. When police investigated the case and opined that the accident took place due to rash and negligent driving of the driver of the Truck, this Tribunal is also of the opinion that the accident took place due to rash and negligent driving of the driver of the Truck.

4. This issue is decided accordingly in favour of the claimant.

Issue No.2 and 3 5. Claimant sustained tenderness and swelling which is opined by the medical officer as simple injuries. As per the prescriptions claimant was treated with various medicines. Claimant also produced a cash memos and bills of Rs. 6,655/-. Therefore, an amount of Rs.35,000/- has been awarded towards pain and sufferings, Rs. 6655/- towards medical expenses, Rs.2000/- towards nourishing food and special diet and Rs.1000/- towards transportation.

6. No other amount on any other head is allowed due to lack of specific evidence on record. Hence, total amount is calculated below:-

Pain and sufferings Rs. 35,000/- Medical expenses Rs. 5,655/- Expenses towards nourishing food and special diet Rs. 2,000/- Expenses towards transportation Rs. 1,000/- Total compensation Rs. 43,655/-

7. These issues are decided accordingly together by awarding just and reasonable compensation of Rs. 43,655/- (Rupees forty three thousand six hundred fifty five) only in favour of the claimant for sustaining injuries out of the motor accident.

Issue No. 4 8. The offending vehicle was insured with National Insurance Co Ltd. In view of decision given in Dipak Kumar Jain vs Rita Das and others, reported in (2006) 3 GLR 720 the National Insurance Company Ltd being insurer of the 5

offending vehicle is liable to pay compensation. Other OPs are exonerated from liability of the case. AWARD 9. In view of above, the National Insurance Co Ltd. is directed to deposit the awarded compensation of Rs. 43,655/- (Rupees forty three thousand six hundred fifty five) only within 30 days from today with interest thereon at the rate of 9% per annum with effect from the date of filing of the claim application till realization of the full.

10. The case is disposed of accordingly. Supply copy of judgment to the parties immediately. Given under my hand and Seal of the court on this the 1st day of February, 2019.

(Abubakkar Siddique) Member, Motor Accident Claims Tribunal Silchar, Cachar, Assam

Dictated and corrected by me:

(Abubakkar Siddique) Member, Motor Accident Claims Tribunal Silchar, Cachar, Assam

Transcribed by me

(Dhrubajyoti Das) Stenographer