1 IN THE COURT OF MEMBER, MOTOR ACCIDENT CLAIMS ...

1IN THE COURT OF MEMBER, MOTOR ACCIDENT CLAIMS TRIBUNAL :LAKHIMPUR ; AT NORTH LAKHIMPUR.M.A.C.T. Case No.98/2009.P A R T I E SSri Putukon Gowala.... Claimant.−versus-1. Sri Rupen Chandra Tossa.S/O Lt. Jogen Chandra Tossa.Vill. Seralia, PS- Behali.Dist. Sonitpur.(Driver of Truck No.AS.01.R/ 0792).2. Sri Arun Kumar Sarkar.S/O Lt. Birendra Chandra Sarkar.Vill. Morangaon, Borgaon.PS – Behali. Dist. Sonitpur.(Owner of Truck No.AS.01.R/ 0792).3) Md. Ahmed Ali.S/O Lt. Akram Ali.Vill. Dakhin Rupahi Chaoldhowaghat.PS – Boginadi. Dist. Lakhimpur.(Owner of Maruti Van No.AS.07.B/ 9967).4) The Oriental Insurance Company Ltd.Tezpur Branch.Tezpur, Dist. Sonitpur.(Insurer of Truck No.AS.01.R/ 0792).5) The National Insurance Company Ltd.North Lakhimpur Branch.North Lakhimpur, Dist. Lakhimpur.(Insurer of Maruti Van No.AS.07.B/ 9967).... Opposite Parties.PRESENT : Sri P.K.Khanikar,Member, M.A.C.T.Lakhimpur, North Lakhimpur.A P P E A R A N C ESri Lakhi Knt. Dutta, the learned Advocate for the claimant.Sri N.G.Dutta, the learned Advocate for the OP No.3.Sri S. Sarkar, the learned Advocate for the OP No.4.Sri N.M.Phukan, the learned Advocate for the OP No.5.Date of argument : 25.05.2012.Date of Judgment : 15.06.2012.

2J U D G M E N T1. This Motor accident claim case has arisen out of anapplication submitted by claimant, Sri Putukon Gowala under Sec. 140/ 166of the M.V. Act, 1988, claiming compensation to the extent ofRs.12,80,000/- only, for the death of his wife, Adori Sarkar, in a road trafficaccident that took place on 20.10.2009 at about 5.30 Pm near 'PadumoniThan' on NH-52 under Boginadi Police Station.2. The case of the claimant, in brief, is that on 20.10.2009at about 5.30 Pm, while his deceased wife, Adori Sarkar alongwith hermother, Basumoti Sarkar was proceeding towards Gogamukh afterworshiping in 'Padumoni Than' by a Maruti Van bearing registrationNo.AS.07.B/ 9967, a truck bearing registration No.AS.01.R/ 0792 camefrom opposite direction driven in rash and negligent manner by its driver,and crushed the Maruti van after hitting on a big tree near 'Padumoni Than'.As a result of which, the wife of the claimant and four other occupantsincluding the driver of the Van died on the spot For the accident, BoginadiPS Case No.160/2009 u/s 279/ 338/ 304(A) IPC was registered. Hence, theclaim for compensation.3. OP No.1, the driver and OP No.2, the owner of theoffending truck bearing registration No. AS.01.R/ 0792 had not turned up tocontest the case, for which the case proceeded exparte against them. OtherOPs, namely OP No.3, the owner of the Maruti Van bearing registrationNo.AS.07.B/ 9967, OP No.4, Oriental Insurance Company Ltd. i.e., theinsurer of the truck in question and OP No.5, National Insurance Co. Ltd.,the insurer of the Maruti Van in question contested the claim of the claimantby filing individual Written Statements.4. It is pertinent to mention here that initially New IndiaAssurance Co. Ltd. was impleaded as the insurer of the Maruti Van inquestion as OP No.5, who accordingly submitted Written Statement andcross examination of the CWs was also done on behalf of the said NIA Co.Ltd., but later on, when the claimant came to know from the depositionmade by DW.2, Sri Haren Gogoi, Investigator of New India AssuranceCo.Ltd. that the vehicle bearing registration No.AS.07.B/ 9967 (Maruti

3Van) was in fact kept insured with National Insurance Co. Ltd. at the timeof accident involved in the present case, but the dealer issued the policywrongly in the letter head of New India Assurance Co. Ltd. and premiumwas infact deposited with National Insurance Co. Ltd., for which theclaimant prayed for amendment of the Claim petition, which wasaccordingly allowed and National Insurance Co. Ltd. was substituted as OPNo.5 in place of New India Assurance Ltd. vide order dtd.15.07.2011.5. The OP No.3, the owner of the truck in question deniedthe narration made in the claim application by the claimant regarding theaccident and stated that the claim of the claimant is exorbitant and withoutany basis.6. The OP No.4, OIC Ltd. the insurer of the truck inquestion, denied in their W.S. the narration of the accident and allegedinvolvement of the deceased and also rash and negligent driving on the partof the driver of the truck i.e., OP No.1 at the time of accident. To the OPNo.4, the claim of the claimant is highly excessive, arbitrary and out of allproportions and the claimants are not entitled for any amount from theanswering opposite party.7. The OP No.5, NIC Ltd. the insurer of the Maruti van inquestion, stated in their W.S. that the accident took place due to rash andnegligent driving of the truck in question by its driver, and there was nofault at all on the driver of the maruti van in question. It is also stated thatfor the accident, police registered a case against the driver of the truck inquestion u/s 279/ 338/ 304(A)/ 427 IPC, and hence prays for exoneratingthe answering opposite party from the liability of making any payment ofcompensation.8. On pleadings of the parties, the following issues wereframed :1) Whether the accident occurred due to rash and negligent driving of thedriver of the vehicle bearing registration No.AS.01.R/ 0792 (Truck) causingdeath of the deceased, Adori Sarkar ?2) Whether the claimant is entitled to get compensation as prayed for ?3) What other relief/ reliefs the parties are entitled to?

49. In course of hearing, the Claimant examined himself asCW.1 and two other witnesses as CW.2 and CW.3. They were crossexamined on behalf of the contesting Opposite Parties. Certain documentsin original were also submitted by the Claimant in support of his claim. Twowitnesses from the side of NIA Co. Ltd. were examined and out of them,DW.2, Sri Haren Gogoi, Investigator of New India Assurance Co. Ltd. wascross examined and discharged. No DW was examined by the OP Nos.4 andsubstituted OP No.5 the insurers of the vehicles concerned involved in theaccident in support of their defence.10. I have heard argument of the learned advocates for theclaimant and the contesting Opposite Parties, and also perused the evidenceavailable with the case record and the documents submitted.11. To dispose of the claim, the following issue-wisediscussion is taken up for just decision of the case.ISSUE NO.1 :12. From the deposition of PW.1, Claimant, Sri PutukonGowala, it appears that on 20.10.2009 at about 5.30 Pm, while his deceasedwife, Adori Sarkar alongwith her mother, Basumoti Sarkar was proceedingtowards Gogamukh after worshiping in 'Padumoni Than' by a Maruti Vanbearing registration No.AS.07.B/ 9967 and proceeded almost 1 km awayfrom 'Padumoni Than', a Truck bearing registration No.AS.01.R/ 0792 onbeing driven by its driver in rash and negligent manner came from oppositedirection and fell on the maruti van after dashing on a roadside tree, as aresult of which, all the six occupants of the van including his wife died onthe spot. He stated that on the next day of the accident, while he went toBoginadi PS in the morning and found the dead body of the deceased, andcame to know that the accident took place due to fault of the truck inquestion. CW.2, Sri Abhiram Sarkar and CW.3, Sri Subhash Ghosh, the covillagerof the claimant narrated the accident, which they came to knowwhen they went to the Boginadi PS on the next day morning of the accident.They also stated that due to rash and negligent driving of the truck by itsdriver the accident took place. During cross examination also, all the CWsstated that they came to know from the police personnel of Boginadi PS that

6ISSUE Nos.2 & 3.16. Both these issues are taken up together for considerationfor the sake of convenience and brevity. The claimant, in his Claimapplication, stated the age of his deceased wife to be '32' years at the time ofdeath. From the copy of the Post Mortem Report submitted by the claimant,it also appears that the deceased was aged about '32' years at the time of herdeath. Accordingly, for the purpose of assessment of the compensation, theappropriate multiplier in this case is found to be '17' (Seventeen) as perSecond schedule of the Motor Vehicle Act, 1988. As per CW.1, his deceasedwife engaged herself in the business of selling clothes and used to earnRs.5,000/- only per month, and their family was depending upon herincome. Though, CW.2 and CW.3 supported the version of the claimant(PW.1), but no any document was found submitted in support to that effectby the claimant.17. Be that as it may, in absence of any concrete evidence,keeping in view the avocation pursued by the deceased it would not beunreasonable to hold that her monthly income was approximatelyRs.2,000/- only at the time of her death. Accordingly, the annual income ofthe deceased is found to be Rs.24,000/- only, and if we deduct 1/3 rd of thesaid annual income to be personal expense of the deceased, the annualdependency would come around Rs.16,000/- only. Now, by multiplying theannual dependency, Rs.16,000/- only by the multiplier, '17', the total loss ofincome is found to be Rs.2,72,000/- only, to which the claimant is foundentitled to get as compensation. The claimant is also entitled to get anamount of Rs.2,000/- only, as funeral expense, and another sum ofRs.5,000/- only, on the head of 'loss of consortium' being the spouse of thedeceased.18. Thus, in total, the claimant is found entitled to an amountof Rs.2,79,000/- (Rupees Two Lakhs Seventy Nine Thousand) only, ascompensation for the death of his deceased wife due to the road trafficaccident.19. The OP No.1, OP No.2 and OP No.4 being the driver,owner and insurer respectively of the offending truck bearing registration

7No.AS.01.R/ 0792 are jointly as well as severally liable to make payment ofthe amount of compensation found due to the claimant.20. As there was no contributory negligence on the part ofthe driver of the Maruti Van bearing registration No.AS.07.B/ 9967, OPNos.3 and 5 can not be made liable to share the liability of compensationfound due to the claimant.21. Accordingly, both these issues are answered.O R D E R22. In view of my decision arrived at on the issues, the OPNo.4, Oriental Insurance Company Ltd., admittedly being the insurer of thetruck bearing registration No.AS.01.R/ 0792, is directed to make paymentof Rs.2,79,000/- (Rupees Two Lakhs Seventy Nine Thousand) only, ascompensation to the claimant within a period of two months from the dateof this award, failing which interest @ 6% p.a will accrue to the awardedamount.23. This MACT case stands disposed of, accordingly.24. Both the parties will bear their respective costs.25. Let a copy of this Judgment be forwarded to the OP No.4for compliance.Given under my hand and seal of this Tribunal on this15 th day of June, 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.