Research › Search › Judgment

Gauhati High Court · body

2003 DIGILAW 541 (GAU)

Zakir Hussain v. Keshab Bora

2003-12-04

P.G.AGARWAL

body2003
JUDGMENT P.G. Agarwal, J. 1. Heard Mr. D.C. Mahanta, learned senior counsel for the Appellant and Mr. A.K. Phukan, learned Counsel for the Respondent. 2. The Appellant before us, Zakir Hussain filed an application under Section 166 of the M.V. Act, before the Member, MACT North Lakhimpur claiming compensation for the injuries sustained by him in a motor vehicle accident and it was registered as MACT Case No. 7/2000 and vide the impugned judgment dated 5.9.2001 the learned Member, MACT dismissed the claim of the Petitioner and hence the present appeal. 3. The case of the Appellant/claimant is that on 8.8.99 while he was travelling in a bus bearing registration No. AS-07/4755 from Laluk to Lakhimpur, the said vehicle dashed against a telephone post and met with an accident as a result of which the claimant and other passengers sustained injuries. The claimant was removed to the hospital where he was treated by the doctor and he has suffered permanent disablement in the ear. 4. The claim petition was contested by the owner as well as the Insurer of the vehicle by taking the usual pleas. The member MACT framed the following issues: 1. Is there any cause of action for the case? 2. If the accident took place due to rash and negligent driving of the vehicle by the O.P. 2? 3. If the claimant was an occupant and bonafide passenger of the vehicle in question of the relevant time and sustained any injury out of the accident? 4. If die vehicle was under Insurance coverage of O.P.? 5. If the claimant is entitled to get compensation? 6. If so, to what extent and by whom payable? 5. The claimant examined four witnesses. The Respondent did not adduce any evidence. The learned tribunal decided all the issues against the claimant and rejected the claim petition. The witnesses have deposed that the claimant was travelling in the bus on the ill-fated day and have categorically stated that the vehicle was driven rashly and negligently as a result of which it dashed against the telephone post and the claimant sustained injuries. He was in an unconscious state and he was removed to the hospital by P.W. 2 and P.W. 3. P.W. 4 is the doctor who examined the injured and gave treatment. 6. He was in an unconscious state and he was removed to the hospital by P.W. 2 and P.W. 3. P.W. 4 is the doctor who examined the injured and gave treatment. 6. On going through the impugned judgment, we find that the learned Tribunal has misled itself by stating that 'no basic documents like injury certificate, copy of the G.D. entry or anything was produced at the time of filing of the case to establish prima facie about sustaining injuries by him in a vehicular accident to take cognizance of the case and issuing process to the other side. Ext. 8, the medical report has been brought in evidence through the doctor P.W. 4 and the same has not been challenged by the Respondent and Ext. 9 is the certificate issued by the Incharge, Traffic Branch, North Lakhimpur Police Station and it reads as follows: This is to certify that on 8.8.99 P.M. 709 Bus No. AS-07/4755 met an accident on NH 52 at Town Bantow. As a result Md. Zakir Hussain, S/o Lt. Mumtaj Ali Choudhury of Ward No. II, K.B. Road, P.S. North Lakhimpur sustained injury, who was admitted at D.M. Hospital, North Lakhimpur for treatment. This reference N.L. P.S. GDE No. 359 dt. 8.8.99. 7. The claim of the Petitioner cannot be turned down on the count that the police have not made any investigation as required under law nor on the count that the original hospital register was not produced or the other doctors who had treated the injured have not been examined. Evidence of P.W. 4 remains intact and his statement that the medical certificate was prepared by him on the basis of the hospital register is sufficient unless the entire evidence of the doctor is turned down on some other counts. Further we find that the Tribunal has contradicted itself by stating at one place that the claimant has failed to establish that the vehicle was driven rashly and negligently and coming to an altogether non-existing plea by stating that 'moreover, there is no evidence to establish the fact that it was driven rashly and negligently. Further we find that the Tribunal has contradicted itself by stating at one place that the claimant has failed to establish that the vehicle was driven rashly and negligently and coming to an altogether non-existing plea by stating that 'moreover, there is no evidence to establish the fact that it was driven rashly and negligently. Whereas, it was found that the accident took place due to mechanical defect, i.e. failure of brake and it was beyond the control of the driver but he tried his best to stop the vehicle when the brake system became inoperative by dashing the vehicle in a nearby telephone post'. 8. The claimant was a bonafide passenger and this has been well established from the evidence of P.W. 2 and P.W. 3, who were independent witnesses. The fact that they were chance witnesses is irrelevant and there was no reason to disbelieve these two witnesses. They have stated that just after the accident they found P.W. 1 lying in injured condition and accordingly removed him to the hospital for treatment. The claimant was a bonafide passenger and from the fact that the accident took place when the bus dashed against the stationed telephone post, shows that this is a case of rash and negligent driving. The principle of Resipsa-liquitor is squarely applicable to the present case and there was no scope of throwing out the claim on this account. The evidence recorded by the Tribunal is very specific and clinching and we hold that the findings recorded by the Tribunal on wrong premise are not tenable under law. The claimant being a bonafide passenger and having sustained injuries in a motor vehicle accident is entitled to compensation. 9. In view of the above, the findings of the Tribunal stands set aside. 10. The claim petition is pending since 2000 and this being in the nature of first appeal, we do not propose to remand the matter back and dispose of the same on the basis of the materials available. 11. 9. In view of the above, the findings of the Tribunal stands set aside. 10. The claim petition is pending since 2000 and this being in the nature of first appeal, we do not propose to remand the matter back and dispose of the same on the basis of the materials available. 11. P.W. 4 is the doctor, Sri Hemanta Kumar Dutta, Senior Medical and Health Officer, Civil Hospital, North Lakhimpur and he found the following injuries on the person of the claimant: The patient attended the casualty department of N.L. Civil Hospital on 8.8.99 at 10.45 p.m. The patient attended the OPD of Civil Hospital vide OPD No. B-41020 dated 9.8.99 with the following ENT and Head and Neck injuries. The injuries were- 1. Tempo parilal soft tissue swelling with laceration on the skull left side. 2. Lacerated wound over the left side with clotted blood in left ear canal. The wound repaired and blood removed in the OPD. Haemorrhage from the ear canal was coupled with adequate hemostasis and packing. 3. Traumatic perforation in left eardrum with tinnitus with loss of hearing which is conductive in nature. 4. One sharp cutting wound over the left eyebrow, which was stitched and wound treatment was done in OPD. The patient was advised to attend OPD regularly for dressing and treatment. In my opinion the above mentioned injuries were caused by sharp object, fresh and grievous in nature the injuries in ear caused permanent disablement of hearing in the left ear of the patient. Ex. 8 is the injury report. Ext. 8(1) is my signature. 12. The claimant has also produced the bills for medicine, etc. (Ext. 1 to 7) which comes to around Rs. 4000/-. 13. Considering the period of treatment, etc. and the evidence of P.W. 1 that he has spent a sum of Rs. 15,000/- on medical treatment etc. we determine the amount at Rs. 10,000/- towards medical expenses. 14. The claimant has also suffered permanent disablement of the left ear for which compensation is determined at Rs. 20,000/-. For the pains suffered and mental agony, we award a further sum of Rs. 20,000/-. It is submitted that the Appellant was a private tutor and in absence of any evidence regarding loss of income no amount is awarded. 15. In view of the above, we hold that the Appellant claimant is entitled to a total compensation of Rs. 20,000/-. For the pains suffered and mental agony, we award a further sum of Rs. 20,000/-. It is submitted that the Appellant was a private tutor and in absence of any evidence regarding loss of income no amount is awarded. 15. In view of the above, we hold that the Appellant claimant is entitled to a total compensation of Rs. 50,000/- along with interest @ 9% from the date of filing of the claim petition till payment. The Respondent Insurance Company is directed to pay the said amount within a period of two months. 16. The appeal stands disposed of accordingly.