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2007 DIGILAW 688 (ORI)

Sukulu Majhi v. Sukanta Kumar Das

2007-09-06

N.PRUSTY

body2007
JUDGMENT N. PRUSTY, J. Challenging the judgment/award dated 15.7.1993 passed by the learned 3rd Motor Accident Claims Tribunal, Bala¬sore in Misc. Case No. 23/46(C) of 1990/89, the claimant/appel¬lants, who are father, mother, sons and daughter of the deceased Rabindra Majhi, have filed this appeal. The deceased succumbed to the injuries sustained by him in a motor vehicle accident caused on a public road on 10.1.1989 at about 7.30 A.M., due to rash and negligent driving of the driver of the offending vehicle (truck) bearing Registration No. ORB 5383. In their claim petition, the claimant/appellants had claimed Rs. 1,00,000/- as compensation. 2. The case of the appellants, in short, is that due to the above said accident, the deceased initially sustained multi¬ple injuries on his person and was hospitalized in Balasore Headquarters Hospital on the very same date of the accident i.e. 10.1.1989 and remained there under treatment till 12.1.1989 as an indoor patient. Since the condition of the injured deteriorated and became serious, the treating Doctor advised to shift him to S.C.B. Medical College and Hospital, Cuttack for further treatment. The claimant/appellants, who are the persons below poverty line, took the injured to their home for the purpose of arranging funds required for the treatment. Since they are poor persons it was difficult on their part to arrange required funds immediately and before they could arrange the money to remove the injured to S.C.B. Medical College and Hospital at Cuttack for his treatment, the injured succumbed to the injuries on 14.1.1989 i.e. two days after he was discharged from the Balasore Headquar¬ters Hospital. Hence the claimant/appellants filed the claim application claiming Rs. 1,00,000/- as compensation for the death caused to the injured due to the injury caused in the said motor vehicle accident on a public road. 3. In support of their case the claimants/appellants have examined two witnesses and exhibited five documents. On the other hand, the opposite parties/respondents have not examined any witness nor filed any document in support of their case. 4. 3. In support of their case the claimants/appellants have examined two witnesses and exhibited five documents. On the other hand, the opposite parties/respondents have not examined any witness nor filed any document in support of their case. 4. Learned Tribunal taking into consideration all the facts and materials as well as both oral and documentary evidence available on record, held that “since the nature of injuries sustained by the deceased and the version of P.W.1 in the FIR to the police that the deceased was cured after treatment and was brought home from hospital on 12.1.1989 taken together, leads to a conclusive inference that the death of the deceased was due to some other reasons other than the rash and negligent driving of the offending vehicle by its driver. As such, the deceased cannot be said to have died due to rash and negligent driving of the vehicle in question.” With the above observations, learned Tribu¬nal dismissed the claim petition of the Claimant/appellants. 5. Heard Mr. Pradhan, learned counsel for the appellants and Mr. Mohanty, learned counsel for respondent No. 2/National Insurance Company Ltd. 6. Mr. Pradhan, learned counsel appearing on behalf of the appellants submits that the learned Tribunal has not considered the statements made by the father of the deceased and P.W.2 (Madhu Behera), the eye witnesses to the occurrence before the Tribunal during their examination and the documents filed by the claimants in support of their case. Learned Tribunal was also quite incorrect in his finding about the accident which was caused due to rash and negligent driving of the driver of the offending vehicle and was the cause of the death of the injured as well as about the liability of the Insurance Company. 7. These submissions are strongly repudiated by Mr. Mohan¬ty, learned counsel for respondent No. 2. Learned Counsel further submitted that the Tribunal has correctly rejected the claim petition, keeping in view the evidence on record as well as the documents filed by the claimants. 8. I have heard the learned counsel for the respective parties at length. As it appears, the accident was caused in the year 1989 and in the meantime about 18 years have passed from the date of accident as well as death of the deceased. 8. I have heard the learned counsel for the respective parties at length. As it appears, the accident was caused in the year 1989 and in the meantime about 18 years have passed from the date of accident as well as death of the deceased. At this stage, if the matter is remitted back to the tribunal for further consideration/adjudication on the basis of the materials avail¬able on record, then it will be in no way helpful to either side, rather it will be prejudicial to the interest of both the sides. 9. As it appears from the claim petition, the injured late Rabindra Majhi sustained grievous injuries on his chest, head and right hand and was removed to Balasore Headquarters Hospital for his treatment. He was admitted as an indoor patient on the same day i.e. 10.1.1989 and was under treatment there till 12.1.1989. Since his condition deteriorated and became serious, he was advised to undergo further treatment at S.C.B. Medical College and Hospital at Cuttack. The deceased was taken to his home on 12.1.1989 at about 11 A.M. for the purpose of shifting him to Cuttack. Since the deceased was a poor rickshaw puller, it was difficult on the part of his family members/claimants, who are equally poor, for arranging required funds for taking him to S.C.B. Medical College and Hospital at Cuttack for further treat¬ment and while the claimants were trying their level best to arrange money for the above purpose, the injured succumbed to the injuries on 14.1.1989 at about 4 P.M. i.e. only two days after his discharge for further/better treatment at Cuttack. 10. P.W.1, who is the father of the deceased in his evidence, has categorically supported the averments made in the claim application. He has stated that the deceased was contribut¬ing Rs. 600/- per month for maintenance of his family. He was aged about 35 years at the time of his death. He had also pro¬duced the School-leaving certificate with regard to the date of birth of the deceased. The deceased read up to Class-VII. P.W.1 has also lodged FIR with regard to accident in Remuna Police Station on 14.1.1989 categorically mentioning therein that his son died due to the injury caused on his body in the above said accident. He had also pro¬duced the School-leaving certificate with regard to the date of birth of the deceased. The deceased read up to Class-VII. P.W.1 has also lodged FIR with regard to accident in Remuna Police Station on 14.1.1989 categorically mentioning therein that his son died due to the injury caused on his body in the above said accident. He has also categorically denied the suggestion with regard to the death of his son due to some other ailments after being discharged from the Balasore Headquarters Hospital. 11. P.W.2, who is the eyewitnesses to the occurrence, has proved the accident, which was caused on 10.1.1989 due to rash and negligent driving of the driver of the truck bearing Regis¬tration No. ORB 5383. He has also stated that the deceased sustained injury due to the said accident and was earning Rs. 700/- per month by pulling rickshaw and four days after the accident he died in his house, after coming from the Hospital. He has also categorically stated that the death of Rabindra Majhi was not caused due to any ailment and the death was due to truck accident. 12. From the injury report it appears that injury Nos. 2 and 3 i.e. the fracture on the little finger and the left thumb of the deceased were grievous in nature and Injury No. 1 was a lacerated bleeding injury on the temporal area of the deceased, which is simple in nature and the above injuries might have been caused by a hard and rough substance. No X-ray has been taken nor any examination has been made with regard to the internal injuries sustained by the deceased because of the injury on the temporal area, even though it is simple in nature as appeared from outside. To indicate/confirm with regard to the internal injury in the brain/head of the deceased, even though it appeared to be simple in nature, the Doctor at Balasore Headquarters Hospital advised the injured to go for further treatment in S.C.B. Medical College and Hospital at Cuttack, since he was not in a position to find out anything in that regard and in that view of the matter the injured was discharged and instead of taking the injured to Cuttack for further tretment, the petitioners took him to their house, where he died only two days after his discharge from Balasore Headquarters Hospital. In view of the facts and circumstances narrated above, under no circumstances it can be presumed that the death was caused due to any other reason other than due to the injuries caused on the body of the deceased in the accident, which occurred on 10.1.1989. 13. Even though it is the case of opposite party No. 2/respondent that the vehicle in question was not insured, the same finds place at Sl. No. 3 in the seizure list (Ext. 4). The policy number in respect of the vehicle has been clearly men¬tioned therein and it has not been challenged nor controverted by the Insurance Company by way of adducing any oral or documentary evidence. It is not the case of opposite party No. 2 that the driver of the offending vehicle was not having a valid driving license at the time of the accident. 14. In view of the above, in my considered view, the death of deceased was caused due to the injuries sustained by him in a motor vehicle accident, which were caused on 10.1.1989 due to rash and negligent driving of the driver of the offending truck bearing Registration No. ORB 5383 and the vehicle was validly insured with the Insurance Company as well as the driver of the offending vehicle was having a valid driving license at the time of the accident. 15. Keeping in view the facts and circumstances of the case as narrated above as well as the materials available on record, I am of the view that the claimants/appellants are entitled for the compenation as has been claimed by them in their claim petition. 16. Since it is the case of the appellants that the de¬ceased was earning about Rs. 700/- per month as a Rickshaw puller, his contribution to the family has to be assessed at Rs. 500/- per month and as such he was earning about Rs. 6000/- per year. Applying multiplier 16, the quantum of compensation comes to Rs. 96,000/-. So far as consortium, expenses incurred in sudhi and loss of affection etc. are concerned, the appellants are entitled to an additional sum of Rs. 9,500/-. As such, they are entitled to a total sum of Rs. 1,05,000/-. However, as because the claimants have claimed only Rs. 1,00,000/- in my considered view, it would be just and proper to award Rs. are concerned, the appellants are entitled to an additional sum of Rs. 9,500/-. As such, they are entitled to a total sum of Rs. 1,05,000/-. However, as because the claimants have claimed only Rs. 1,00,000/- in my considered view, it would be just and proper to award Rs. 1,00,000/- as compensation in favour of the claimants along with interest at the rate of 9% per annum from the date of filing of the claim application i.e. 19.4.1989 till the date of actual payment along with a consolidated cost of Rs. 2000/-. Accordingly it is direct¬ed that the Insurance Company shall pay/deposit the entire amount of compensation along with interest and cost, as above, before the Tribunal, within a period of three months hence. Out of the total amount of compensation along with cost and interest deposited, 30% of such amount shall be disbursed in favour of the claimants and the balance 70% of the amount shall be invested in an unencumberable fixed deposit for a term of five years in the names of the respective claimants/appellants, proportionately as would be determined by the learned Tribunal and no loan of any kind shall be sanctioned/disbursed in their favour by the con¬cernd Bank during the entire period, for which the money is kept in fixed deposit. The appeal is accordingly allowed. Appeal allowed.