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DISTRICT CACHAR, BEFORE THE MEMBER M.A.C.T:::::::::: SILCHAR.

Present: -Shri S. K. Dhar,

Member, MACT Cachar,

Silchar.

MAC CASE No. 381/2018

1. Sadina Begum Choudhury.

2. Hasina Begum Choudhury.

3. Abbas Ahmed Choudhury.

4. Ashik Ahmed Choudhury.

5. Abid Ahmed Choudhury.

6. Arif Ahmed Choudhury……………………………..………Claimants.

-Versus-

1. Manjur Hussian.

2. Halim Uddin Laskar.

3. Reliance General Insurance Co. Ltd……………….………O.Ps

Argument heard on : 23-06-2020

Judgment delivered on: 13-07-2020.

ADVOCATE APPEARED

Mr. A. K. Khan…………………………………For the Claimant.

Mr. A. Paul………………………………………For the O.P. No-2.

Mr. S. K. Kabra…….……………..…………..For the O.P No-3.

.

J U D G M E N T

1. This case is arising out of a claim petition filed by the claimants

under the provisions of Motor Vehicle Act claiming compensation of an

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amount of Rs. 20, 01,000/- (rupees twenty lakh one thousand only) for

death of their father Abdul Malik Choudhury (hereinafter referred as

deceased) in a road traffic accident that occurred on 23-12-2017 at about

09:30 A.M. at Kalain, Tarapur over National Highway No-6 under the

jurisdiction of Katigorah Police Station in the District of Cachar.

2. The case of the claimants, in brief, is that on the fateful day

and time the deceased was returning home from Bhatgram side by riding his

bicycle. On the way when he reached the place of occurrence the offendng

Tata Sumo bearing registration No-AS-11BC-6864 coming from Meghalaya

side towards Badarpur being driven by its driver in a rash and negligent

manner dashed the bicycle of the deceased from behind. As a result the

deceased fell down and sustained grievous injuries. He was immediately

taken to the Kalain FRU where the attending doctor declared him brought

dead. Thereafter the dead body was forwarded to the SMCH Silchar and post

mortem examination was done by the Forensic Surgeon.

3. That in connection with the occurrence of vehicular accident

Katigorah P.S. Case No. 756/17 u/S 279/304(A) I.P.C. was registered

against the driver of the offending vehicle and after completion of

investigation the case ended in charge sheet against the driver/O.P. No-2. It

is alleged that the deceased was doing business of betel nut cum agro

farming and his monthly income was Rs. 12,000/- Hence the claimant being

the legal heir of the deceased filed the instant claim petition claiming

compensation.

4. Upon receipt of notice the driver entered into appearance and

contested the case by filing written objection dening the various averments

of the but admitted that the fact of accident is true. It is contended that the

alleged offending vehicle was duly insured with the Reliance General

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Insurance Company Ltd and he also possessed a valid driving license.

However, the O.P. No-3/Insurance Company filed written statement and

denied all the allegations. The Insurance Company besides denying age,

occupation and income of the deceased also stated that the amount of

compensation claimed is baseless and fanciful. It also took defence U/s

149/170 M. V. Act.

5. On the basis of pleadings of the parties the following issues

have been framed for just decision of the claim petition:-

I S S U E S

(i) Whether the deceased Abdul Malik Choudhury died as a result

of motor vehicle accident occurred on 23-12-17 at about 09-30

A.M. at Kalain Tarapur under the jurisdiction of the Katigorah

P.S. ?

(ii) Whether the accident occurred due to rash and negligent

driving of the vehicle bearing registration No- AS-11-BC-6864?

(iii) Whether the claimants are entitled to receive any

compensation? If yes

(iv) What would be just and proper compensation and by whom of

the O.Ps the same is payable?

Discussion, decision and reasons thereof:-

6. In course of evidence the claimants’ side examined the claimant

No-1 as P.W-1 and also exhibited some documents marked as Ext-1 to Ext-6.

Claimant also produced the original copy of Accident Information Report in

Form-54. The Insurance Company contested the case and took full scope for

cross examination but did not adduce evidence in its defence. Upon closure

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of evidence stage I have heard argument advanced by both the sides and

also gone through the materials in the case record for determination of the

issues in hand. For the sake of brevity and convenience of discussion and

decision the issues are taken up together for determination.

7. To support the claim made in the claim petition P.W-1 deposed

on affidavit that on the fateful day and time when the deceased was

returning home by riding his bicycle and reached near the shop of one Asit

Das at Kalain Taraur, over National Highway No-6 the offending Tata Sumo

bearing registration No. AS-11BC-6864 coming from behind dashed the

bicycle of the deceased. As a result the deceased fell down and sustained

grievous injuries on his person. Immediately thereafter the deceased was

taken to the nearly/local Kalain FRU where the attending doctor declared him

brought dead. Thereafter the dead body was sent for post mortem

examination to the SMCH where Forensic Surgeon carried out post mortem

examination. During cross-examination P.W-1 deposed that she is not eye

witness of the accident and has no personal knowledge of the occurrence.

She also during cross-examination stated that no other person has been

cited as witness who had seen the accident. I have gone through the

documentary evidence relied upon by the claimant. The Accident Information

Report furnished in record shows that it was prepared by the concerned

police station reporting that on 23-12-2017 at about 09:30 a.m at Kalain

Tarapur over National Highway No-6 the deceased met with the accident due

to knock down by the Tata Sumo vehicle bearing registration No- AS-11-BC-

6864. It is also reported that in connection with the accident Katigorah PS

Case No. 756/17 u/s 279/304(A) IPC was registered. Ext-1, Ext-2, Ext-3, Ext-

4 and Ext-5 are the certified copy of the FIR, Charge Sheet, Seizure Lists,

MVI report and Post Mortem report pertaining to the aforesaid P.S case. The

Charge Sheet clearly reveals that during investigation a prima facie case u/s

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279/304(A) IPC was found well established against the arrested accused

driver/O.P. No-2 of the Tata Sumo bearing Registration No AS-11-BC-6864.

The O.Ps did not deny the accident nor adduced any rebuttal evidence

negating the accident arising out of rash and negligent driving by the driver

resulting in death of the deceased.

8. Regarding the question raised by the Insurance Company that

claimant is not the eye witness of the accident and no other individual eye

witness has been examined to prove rash and negligent driving or the

manner of accident, this Tribunal is of opinion that a holistic view is to be

taken while dealing with the claim petition under the Motor Vehicles Act and

in this aspect this Tribunal has placed reliance upon the judgment of

Supreme Court in a case titled as Bimla Devi and Ors- Vs- Himachal

Road Transport Corporation and Ors (2009) 13 SC 530. Para No.15 of

the said judgment reads as under:-

"15. In a situation of this nature, the Tribunal has rightly

taken a holistic view of the matter. It was necessary to be

borne in mind that strict proof of an accident caused by a

particular bus in a particular manner may not be possible to

be done by the claimants. 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."

9. Hence, in view of above it is held that culpable negligence on

the part of the driver of the vehicle has been established and testimony of

eye witness is not necessary to prove the same.

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10. Ext-6 Post Mortem report transpires that on 23-12-2017 at

about 2:15 p.m. post mortem examination was conducted on the dead body

of the deceased at the SMCH by a Forensic Surgeon. The forensic surgeon

opined that death was due to hemorrhagic following injuries sustained and

that the injuries were ante mortem caused by blunt force impact.

Approximate time since death was opined to be 2 to 6 hours approximately.

Since, the accident took place on 23-12-2017 at about 09:30 A.M. and post

mortem was conducted on the same day at about 02:45 P.M. it has been

successfully established by the claimants’ side that deceased died due to the

said motor accident.

11. So believing the testimonies of the P.W. 1 and relying upon the

exhibited documents the issue No-1 and 2 are decided in the affirmative in

favour of the claimant.

12. There is no dispute that the claimants are the sons and

daughters of the deceased. It may he mentioned here that originally the

claim petition was filed by the wife, sons and daughters of the deceased.

However, pending adjudication of the claim petition the wife died and her

name was struck off from the claim petition vide order dt 30-08-19 by

amending the claim petition. At this stage the ld. Advocate for the

O.P./Insurance Company argued that this claim petition is liable to be

dismissed since all the claimants are undisputedly major in the eye of law

and not dependants upon the income of the deceased. On the other hand

the ld. Advocate for the claimants submitted that the claimants are the sons

and daughters of the deceased and a they are the legal heirs of the

deceased have right under the personal law to inherit the property of the

deceased and as such competent U/S 166 M. V. Act to file the claim petition.

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13. Claimant No-1 deposed in the evidence on affidavit that the

deceased father was the sole earning member of the family and the

claimants were dependent upon his income as none is gain fully employed.

In cross examination the P.W. 1 was confronted with suggestion that all the

claimants are having their respective family members and not dependent

upon the income of the deceased which the P.W. 1 denied. Except that

suggestion no evidence has been proved to prove independent income of the

claimants. Section 166 of the M.V. Act provides as follows:-

"Application for compensation: - (1) An application for compensation arising out of an accident of the nature specified in sub- section (1) of Section 165 may be made-

(a) by the person who has sustained the injury; or

(b) by the owner of the property; or

(c) where death has resulted from the accident, by all or any of the legal representatives of the deceased; or

(d) by any agent duly authorized by the person injured or all or any of the legal representatives of the deceased, as the case may be.”

14. According to Section 2(11) of Code of Civil Procedure, 1908

(in short the 'CPC'), "legal representative" means a person who, in law,

represents the estate of a deceased person, and includes any person who

intermeddles with the estate of the deceased and where a party sues or

sued in a representative character, the person on whom the estate devolves

on the death of the party so suing or sued. Almost in similar terms is the

definition of legal representative under the Arbitration and Conciliation Act,

1996, i.e. under Section 2(1)(g).

15. As observed by Hon’ble Supreme Court in Custodian of

Branches of BANCO National Ultramarino –Vs- Nalini Bai

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Naique (AIR 1989 SC 1589) the definition contained in Section 2(11),

CPC is inclusive in character and its scope is wide, it is not confined to legal

heirs only. Instead, it stipulates that a person who may or may not be legal

heir, competent to inherit the property of the deceased, can represent the

estate of the deceased person. It includes heirs as well as persons who

represent the estate even without title either as executors or administrators

in possession of the estate of the deceased. All such persons would be

covered by the expression 'legal representative'. As observed in Gujarat

State Road Transport Corporation v. Ramanbhai Prabhatbhai and

Anr. (AIR 1987 SC 1690) a legal representative is one who suffers on

account of death of a person due to a motor vehicle accident and need not

necessarily be a wife, husband, parent and minor child.

16. In an Indian family, brothers, sisters and brothers children

and sometimes foster children live together and they depend upon the

bread-winner of the family and if the bread-winner is killed on account of a

motor vehicle accident, there is no justification to deny them compensation.

Undisputedly the claimants are the surviving legal heirs of the deceased. It is

undisputed that whatever the deceased earned a portion of the same was

used by the claimant and some portion would have been saved by him for

future use. Whatever the deceased would have saved from his earning the

claimants would be entitled to it being legal heirs to the estate of the

deceased. This Court following the decision of the Sarla Verma-Vs- Delhi

Transport Corporation & ors is of the view that as the deceased was a

married person having children there shall be 1/3rd deduction towards his

personal expenses rest 2/3rd would have been saved for the future.

Therefore, this court is of opinion that 1/3rd of the annual earning of the

deceased to be deducted for assessing loss of estate.

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17. To establish income of the deceased claimant placed reliance

on Ext-6 income certificate issued by the Revenue Circle Officer, Govt. of

Assam, Katigorah. In Assam the Revenue Circle officer is the competent

authority to certify the income of a person. Ext-6 income certificate is not

challenged by the defence. Moreover the Ext-6 being issued by a competent

authority of the Govt. of Assam is admissible as a piece of evidence. Hence

this court relying upon the income certificate accepts the income of the

deceased to be Rs. 6000/- per month at the time of death of the deceased.

So the annual income of the deceased stands at Rs. 72,000/- i.e Rs. 6000/- x

12 months. One third of the said annual income has been deducted there

from towards personal expenses and following the age of the deceased of 56

years mentioned in the Post Mortem report vide Ext-5 this court has selected

the multiplier 9. Hence loss of estate is found Rs.48, 000/- x 9 = Rs. 4, 32,

000/-. In addition following guidelines framed by Hon’ble Supreme Court in

National Insurance Company Ltd. Vs. Pranay Sethi and Others

reported in (2017) ACJ 2700 and taking into account the fact that the

deceased was self employed and fell in the age group of 50 to 60 years

10% of his established income i.e. Rs. 43,200/- is added as future prospect

and another sum of Rs. 15,000/- has been awarded towards funeral

expenses. Since, this court has assessed loss of estate instead of loss of

dependency no separate loss of estate has been awarded.

17. Therefore, adding Rs. 4, 32,000/- + Rs. 43, 200/- + Rs.15,

000/- this court has awarded total compensation of Rs. 4, 90, 200/-

(rupees four lakh ninety thousand two hundred only).

18. The Police papers and Insurance Policy reveal that the

offending vehicle was insured with the Reliance General Insurance Company

Ltd and there is no evidence adduced by the Insurance Company to prove in

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record violation of the terms and conditions of the insurance policy.

Therefore the Insurance Company is liable to pay compensation to the

claimants. The issue No 3 and 4 are decided accordingly in favour of the

claimants.

19. In view of decisions arrived at of the issues the claimant is

found entitled to compensation of Rs. 4, 90,200/- (Rupees four lakh

ninety thousand two hundred only) and the O.P. No-3/Reliance General

Insurance Company Ltd. is directed to deposit the compensation by

RTGS/NEFT/IMPS directly to the Bank Account of this Tribunal within 30 days

from today with interest @ 7% per annum with effect from the date of filing

of the claim petition i.e with effect from 26-11-18 till realization in full.

20. Furnish copy of the judgment to the parties free of cost.

Given under my hand and seal of this court on this the 13th

day of July 2020 at Silchar.

Dictated and corrected by me

.

S. K. Dhar S. K. Dhar

Member, MACT, Silchar. Member, MACT, Silchar

Transcribed by me

(Dhrubajyoti Das)

Stenographer.

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