1. This motor accident claim case has arisen out of an application ...

IN THE COURT OF MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL :
LAKHIMPUR : AT NORTH LAKHIMPUR.
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M.A.C.T. Case No.71/2009.
P A R T I E S
Smti Momi Baruah.
... Claimant.
-versus-
1. Branch Manager/ Divisional Manager.
Bajaj Allianz General Insurance Co. Ltd.
Guwahati.
2. General Manager,
Bajaj Allianz General Insurance Co. Ltd.
Head Office, GE Plaza, Airport Road,
Yerwada, Pune.
... Opposite Parties.
PRESENT : Sri P.K.Khanikar,
Member, M.A.C.T.
Lakhimpur, North Lakhimpur.
A P P E A R A N C E
Sri D.Borgohain & Smt Mridusmita Saikia, the learned Advocates for the claimant.
Sri S. Sarkar, the learned Advocate for the OP Nos.1 and 2.
Date of argument : 15.09.2012 and 07.12.2012.
Date of Judgment : 20.12.2012.
J U D G M E N T
1. This motor accident claim case has arisen out of an
application submitted by Claimant, Smti Momi Baruah against the OPs
claiming compensation of an amount of Rs.2,20,000/- only u/s 163(A) of
the M.V. Act, for the death of her husband, Pradip Baruah in a road traffic
accident that took place on 16.12.2008 at about 11 Pm at Milanpur under
Boginadi Police Station.
2. The case of the claimant, in brief, is that on 16.12.2008
while her husband, Pradip Baruah was proceeding towards Gogamukh from
his residence situated at Nakari, North Lakhimpur by driving his Winger
vehicle bearing registration No.AS.07.C/0119, the vehicle met with an
accident near Subansiri College at Milanpur on NH-52 when it slipped on
the road and dashed against a road side tree, as a result of which her

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husband died on the spot. For the accident, Boginadi PS Case No.18/2008
u/s 279/ 304(A) IPC was registered. Hence, the claim.
3. OP No.1, the Branch Manager/ Divisional Manager of
Bajaj Allianz General Insurance Company Ltd. and the OP No.2, the
General Manager of the said Company being the insurer of the vehicle
bearing registration No.AS.07.C/0119 (Winger) contested the case by filing
joint written statement, wherein they denied the statements made in the
Claim application relating to the manner in which the accident took place,
and also stated that the claim for the death of a owner / driver of a vehicle
under P.A. coverage can not be settled in the Motor Accident Claims
Tribunal and the nominee or legal heir of the deceased is to apply directly to
the Insurance Company in the proper format for settlement of the claim. It
is also submitted that the claim of the claimant is excessive and baseless.
Under the premises, the OPs pray for exempting them from the liability of
making payment of any amount as compensation.
4. Upon the pleadings of the parties, the following issues
were framed for just decision of the case :
1) Whether the accident took place due to rash and negligent driving of the
vehicle bearing registration No.AS.07.C/0119 (Winger) causing death to
Pradip Baruah
2) Whether the claimant is entitled to get any compensation as prayed for
3) What other relief / reliefs the parties are entitled to
5. In order to substantiate the claim, Two witnesses
including the Claimant have submitted their evidence on affidavit and they
were cross examined on behalf of the OPs. No witness was adduced from
the side of the Opposite Parties. The claimant also exhibited the Accident
Information Report in Form 54 as Ext.1, the certified copy of the
Chaoldhowaghat Police Out Post GD Entry as Ext.2 and the certified copy
of the Post Mortem Report of the deceased as Ext.3.
6. I have heard argument of the learned advocates for the
claimant and the Opposite Parties, Insurance Company, and also perused the
evidence on record.

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7. To arrive at a just decision of the case the following
issue-wise discussion is taken up.
ISSUE NO.1 :
8. To decide the above issues, we have the evidence of Two
PWs. Both of them are not eye witnesses of the accident in question. PW.1,
claimant, Smti Momi Baruah also does not disclose from whom she came to
know about the circumstance under which the fatal accident took place. As
such, her evidence is nothing more than hearsay. PW.2, Sri Raju Dhan
stated that he was the handyman of the vehicle involved in the accident, and
on the day of occurrence i.e., 16.12.2008 at about 9 Pm, he alongwith the
deceased, who was the owner-cum-driver of the said vehicle reached home
after taking dinner in a hotel, but on the next day morning, while he went to
the house of the deceased, Pradip Baruah, he came to know that Pradip
Baruah died on the previous night when he met with an accident while
going to Gogamukh. During cross examination of these two witnesses, the
OPs, Insurance company failed to shake the credibility of these witnesses
in any manner whatsoever. From Ext.1, Accident Information Report in
Form-54 and Ext.3, certified copy of the Post Mortem Report, it also
appears that the deceased, Pradip Baruah died in the motor vehicular
accident that took place on 16.12.2008 at about 11 Pm at Milanpur near
Subansiri College under Boginadi PS.
9. It becomes evident that both PW.1 and PW.2 had not
seen the accident. In such a situation, this hardship can be avoided by
application of the maxim res ipsa loquitor. The principle is that there are
certain happenings which do not occur normally unless there is negligence.
In the instant case, it appears that the accident occurred on NH-52, which is
wide enough. The deceased was the owner -cum- driver of the vehicle in
question at the time of accident, so there is none to explain the circumstance
under which the accident took place.
10. In that view of the matter, I am constrained to hold that
the fatal accident took place due to negligent driving of the vehicle.
Accordingly, there remains no doubt that deceased, Pradip Baruah, the
husband of the Claimant died as a result of the motor accident that took

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place on 16.12.2008 at about 11 Pm at Milanpur near Subansiri College on
NH-52 under Boginadi PS, due to rash and negligent driving of the
offending vehicle bearing registration No.AS.07.C/0119.
11. Accordingly, this issue is answered in affirmative.
ISSUE NOs. 2 & 3
12. Both these issues are taken up together for discussion as
a matter of convenience and brevity.
13. The learned counsel for the Opposite Party, Insurance
Company has submitted that as in the instant case, the deceased happened
to be the owner cum driver of the ill-fated vehicle and thereby not a third
party, the claim set up by the wife of the deceased being his legal heir, is not
entertainable in Motor Accident Claim Tribunal. According to the learned
counsel, the Tribunal set up for trying Motor Accident Claim cases u/s 165
of the Motor Vehicle Act, 1988, can take up claims in respect of the
accident involving death, or bodily injury to persons arising out of use of
motor vehicle or damages to any property of a third party. It is also
submitted that as the deceased is not third party to a contract of insurance of
the ill-fated vehicle, the Tribunal can not settle the claim for his death and
the claimant may claim compensation directly to the O.P. Insurance
company as the death claim is covered under Personal Accident coverage.
14. In support of the above contention, the learned counsel
relied on a decision of the Honourable Gauhati High Court passed in
connection with Case No.CRP. 216/2011 ( Bajaj Allianz General Insurance
Co. Ltd. -vs- Smti Smrita Saikia and another).
15. To appreciate the contention of the learned counsel, I
have gone through the cited rulings referred to above. In the aforesaid
Judgment, it was held - “it is settled by this time that when a court or
Tribunal is established for a particular purpose that as to act only for the
said purpose and not for any other purpose.
Now, the question remains that when as per terms of
policy an insurer is liable to pay 1 st party risk coverage to the insured as
mentioned in the policy, if the deceased is an owner cum driver then in that
case how legal heir of the insured will get the benefit of the policy.

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According to this court, the legal heir of the deceased insured has the right
to claim insurance coverage as mentioned in the policy to the insurance
co-petitioner an the Insurance company is also liable to be discharged its
duties as per terms and condition of the policy. As the same is not an issue
before this Court, this Court is not expressing any opinion regarding claim
of the Respondent claimant before the Petitioner Insurance Company. As
the learned Tribunal acted beyond its jurisdiction, there is no other
alternative before this Court except to set aside the impugned Judgment dtd.
08.04.2011.”
16. However, in this connection, I have gone through the
decision of the Honourable Apex Court reported in (2006) 8 SCC 553 (
Dhanraj -vs- New India Assurance Co. Ltd. and anr.) , wherein the Apex
Court was dealing with a situation where the appellant therein alongwith
certain other persons was travelling in his own jeep met with an accident
and received injuries. The Claim Petitions were filed seeking compensation
from the Insurance company. The Tribunal held that the driver of the jeep
was responsible for the accident and in all the Claim Petitions filed by the
passengers the Tribunal directed the owner as well as the Insurance
Company to pay compensation. While dealing with the Claim Petition filed
by the owner, the Tribunal directed the driver and the Insurance company to
pay compensation to the appellant. The appeal filed by the Insurance
company was allowed by the Honourable High Court, and aggrieved by the
same, the Claimant/ owner therein carried the matter to Honourable Apex
Court. Analysing the provision of Section 147 of the Motor Vehicle Act, the
Honourable Apex Court held in para-8 as under - “Thus, an Insurance
policy covers the liability incurred by the insured in respect of death or
bodily injury to any person ( including the owner of the goods or his
authorised representative ) carried in the vehicle or damage to any property
of a third party caused by or arising out of the use of the vehicle. Section
147 of the M.V.Act does not require an Insurance company to assume risk
for death or bodily injury of the owner of the vehicle”.

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17. Further, relying upon the Judgment in Oriental Insurance
Company Ltd. -vs- Sunita Rathi reported in (1998) 1 SCC 365, the
Honourable Apex Court held that the policy does not cover risk of injury to
the owner himself, and as such the Insurance Company is not liable to
indemnify the owner. It was held that the owner of the vehicle can only
claim compensation provided a Personal Accident Insurance has been taken
out and in the absence of such policy, the Insurance company is not liable to
indemnify the owner.
18. The Honourable Apex Court in Oriental Insurance
Company Ltd. -vs- Jhuma Saha and ors. (2007) 9 SCC 263 reiterated the
said principle. In the said case, the deceased was the owner of the insured
vehicle and the accident took place while he was driving the said vehicle.
The Tribunal on an application u/s 166 of the M.V. Act awarded
compensation holding that since the vehicle being insured and an additional
premium being paid for death of the driver or conductor, the liability was
covered by the Insurance policy. On appeal preferred by the Insurance
company, the Honourable High Court held that in view of decision of the
Honourable Apex Court in Nicolletta Rohtagi in 2002 ACJ 1950 (SC), the
appeal was held to be not maintainable, and aggrieved by the same, the
Insurance company preferred an appeal before the Honourable Apex Court.
The question that fell for decision was whether jurisdiction of the Tribunal
was restricted only to third party claim. Relying upon various Judgments
including Dhanraj case (Supra), the Honourable Apex Court held that in
view of the fact that additional premium was not paid in respect of the risk
of death or bodily injury to the owner of the vehicle, Section 147 (1)(b) of
the M.V. Act, which in no uncertain terms covers the risk of a third party
only, allowed the appeal filed by the Insurance company.
19. From the above Judgment of the Honourable Apex
Court, it becomes abundantly clear that Section 147 of the M.V. Act does
not contemplate coverage of any risk of bodily injury or death to the owner
of the vehicle unless such risk is covered by the policy. Keeping in view the
above referred Judgment of the Honourable Apex Court with all respect and
humility, I am of the opinion that the Judgment of the Honourable Gauhati

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High Court in the case of Bajaj Allianz General Insurance Company Ltd. -
vs- Smti Smrita Saikia and another, is not applicable in the instant Claim
case. In the case in hand, admittedly, the Insurance policy of the offending
vehicle covers the risk of owner and to that effect a separate premium of
Rs.100/- only was paid. Consequently, the legal representative of the
deceased owner has the right to claim compensation for the death of the
deceased, which arose out of the use of the motor vehicle in question, and
the Motor Accident Claims Tribunal has jurisdiction to entertain the Petition
for just compensation filed by the legal representative of the deceased. The
Claim Tribunal have jurisdiction to entertain all the claims for
compensation in respect of the accident involving death or bodily injury to
any person where the accident is caused by the use of motor vehicle or use
of motor vehicle contributes whether by itself or alongwith some other joint
tort feasors to the accident.
20. Now, to ascertain the quantum of compensation entitled
by the claimant, we have seen that PW.1, claimant, in her claim application,
stated that her deceased husband, Pradip Baruah used to earn more than
Rs.10,000/- only per month by running his Winger vehicle involved in the
accident. But, the claimant had not produced any document in support of
her claim regarding monthly income of her deceased husband. Be that as it
may, in absence of any concrete evidence, keeping in view the avocation
pursued by the deceased it would not be unreasonable to hold that the
monthly income of the deceased was approximately Rs.3,000/- only at the
time of his death. Accordingly, the monthly income of the deceased at the
time of his death is held to be Rs.3,000/- per month.
21. If we take the monthly income of the deceased to be
Rs.3,000/- only, then his annual income is found to be Rs.36,000/- only. If
we deduct 1/3 rd of the said amount to be personal expenses of the
deceased, then the annual dependency would be Rs.24,000/- only. The
claimant in her claim application stated that her deceased husband was aged
about 41 years at the time of his death. Ext.2, the certified copy of the Post
Mortem Report of the deceased also reflects that the deceased was aged
about 41 at the time of his death. So, as per Second schedule of the

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M.V.Act, the appropriate multiplier in this case would be '15'. Now, if we
multiply the annual dependency, Rs.24,000/- only, by the multiplier, '15',
then the total loss of dependency would be Rs.3,60,000/- only, to which
amount the claimant is found entitled.
22. The claimant is also found entitled to an amount of
Rs.2,000/- only for funeral expenses of the deceased, and another sum of
Rs.5,000/- only for loss of consortium.
23. Thus, in total, the claimant is entitled to an amount of
Rs.3,67,000/- (Rupees Three Lakhs Sixty Seven Thousand) only, as
compensation for the death of her deceased husband in the road traffic
accident in question.
24. From the evidence of the claimant, it appears that the
claimant is having her mother-in-law i.e., mother of the deceased and one
minor child of the deceased alive, and as such each of them will get 1/3 rd
of the above amount of Rs.3,67,000/- only found due to the claimant as
compensation.
25. The Bajaj Allianz General Insurance Company Ltd.
represented by the OP Nos.1 and 2 being the insurer of the said vehicle are
liable to make payment of the compensation amount found due to the
claimant as the Insurance policy in question covers the risk of deceased, the
owner of the vehicle. Though, the claimant submitted her Petition for
compensation u/s 163(A) MV Act, yet to my considered view as the
deceased was not a third party, said Section will not be attracted, rather Sec.
166 of the M.V. Act covers the claim of the claimant on the facts and
circumstances of the case.
26. Accordingly, both these issues are answered.
O R D E R
27. In view of my decision arrived at on the issues, the OP
No.1, Branch Manager/ Divisional Manager of Bajaj Allianz General
Insurance Company Ltd., admittedly, being the insurer of the vehicle
bearing registration No. AS.07.C/ 0119 is directed to make payment of
Rs.3,67,000/- (Rupees Three Lakhs Sixty Seven Thousand ) only, as
compensation to the claimant within a period of two months from the date

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of this award, failing which interest @ 6% p.a will accrue to the awarded
amount till realisation. The claimant is directed to deposit the 1/3 rd of the
awarded amount as share to be paid to the mother of the deceased, on
receipt of the awarded amount from the Opposite party.
28. This MACT case stands disposed of accordingly.
29. Both the parties will bear their respective costs.
30. Let a copy of this Judgment be forwarded to the OP No.1
for compliance.
Given under my hand and seal of this Tribunal on this
20 th day of December, 2012.
Dictated & corrected by me -
(P.K.Khanikar)
Member, M.A.C.T.
Lakhimpur, North Lakhimpur.
(P.K.Khanikar)
Member, M.A.C.T.
Lakhimpur, North Lakhimpur.
Transcribed & typed by-
S.Kshattry, Stenographer.