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2014 DIGILAW 343 (GAU)

Beauty Nandi v. Jillul Hoque

2014-03-20

NISHITENDU CHAUDHURY

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Judgment Nishitendu Chaudhury, J. 1. By filing this appeal under Section 173 of the Motors Vehicle Act, 1988, claimants have challenged the award dated 18.08.2004 passed by the learned Adhoc Additional District Judge, Darang, who is the Member of Motor Accident Claims Tribunal, Darang, Mangaldoi. The award was passed in MAC No. 117 of 1998 dismissing the claim case against the owner and the driver of the alleged offending vehicle bearing No. AS-13-0053. The brief facts of the case are stated below. On 19.10.1998 at about 7 P.M. the deceased, namely, Badal Nandi, was going towards Kharupetia in an Auto-van. It is disclosed in the evidence of the claimants that the victim was a motor mechanic and having repaired the Auto-van in question he was moving by the same van. The Auto-van was going towards Kharupetia when a Tractor bearing No. AS-13-0053 was coming from opposite direction. There was a collision between the plough part of the Tractor and the Auto-van as a result of which the victim died on the spot as the plough hit his head. The victim was declared dead after he was taken to hospital. The claimant, Smti Beauty Nandi (wife of the victim) lodged a claim of Rs. 5,00,000/- as against the owner of the Tractor as well as Auto-van. But in course of the proceeding, the claimant entered into a compromise with the owner/driver of the auto van on receipt of Rs. 50,000/- and the learned Tribunal in its order dated 18.08.2004 absolved the Auto-van from any liability. In view of the compromise arrived at between the parties, the proceeding was taken up against the Tractor bearing No. AS-13-0053. The learned Tribunal framed as many as 4 issues in this case. These are quoted below: 1. Whether the accident had taken place due to rash and negligent driving of both the Auto-van No. AS.01-D/3806 & the Tractor No. AS.13/0053 or of any of them; and whether Badal Nandi died as a result of sustaining injury in the said accident? 2. Whether the vehicle/vehicles had the coverage of the valid insurance policy on the day of alleged accident? 3. Who were the owners of the vehicles involved in the alleged accident at that time? 4. Whether the claimants are entitled to any relief? If so, what extent and from whom it is realizable? 2. 2. Whether the vehicle/vehicles had the coverage of the valid insurance policy on the day of alleged accident? 3. Who were the owners of the vehicles involved in the alleged accident at that time? 4. Whether the claimants are entitled to any relief? If so, what extent and from whom it is realizable? 2. The claimant examined as many as 3 witnesses, namely, claimant No. 1 Beauty Nandi (P.W.1), one Ranjit Ghosh (PW.2) and one Tinku Saha (P.W.3). The opposite parties on the other hand examined as many as 4 witnesses, namely, Pallab Kumar Bagchi (DW1), who was the owner of the offending Auto-van bearing No. AS.01-D/3 806 allegedly involved in the accident; Md. Jillul Hoque (DW2) the owner of the Tractor, one Mainul Hoque (DW3) and Md. Ali Hussain (DW4). P.W.I Beauty Nandi, who is the widow of the deceased Badal Nandi, claimed that the age of the deceased was 35 years at the time of the accident and he was a motor mechanic. He had a garage and was earning Rs. 5,000/-P.M. He was survived by 2 sons and 1 daughter apart from the widow and all of them were minors at that time. She proved post-mortem report as Exhibit-1, Police reports as Exhibit-2 & 3 and a certificate from Kharupetia Town Committee as Exhibit-4. Incourse of cross-examination, she stated that she does not have any proof to establish that the monthly income of her husband was Rs. 5000/-P.M. She also admitted that she compromised the dispute with Sarawgi Agency on receipt of Rs. 50,000/-from them. P. W.2 Ranjit Ghosh stated that he was selling vegetables in Balugaon market at that time and having heard the accident rushed to that side and found that Auto-van accident occurred due to hit by a Tractor and the victim was lying in a pool of blood. He stated that the Auto-van was coming towards Kharupetia and the Tractor was going from Kharupetia towards Dalgaon. He stated that extended side of the Tractor hit the Auto-van resulting in the accident. He claimed to have taken the deceased to Kharupetia hospital where he was declared dead. He stated that victim was a motor mechanic and he repaired the Auto-van in question and was coming in the said Auto-van. He also stated that me victim was aged 35 years and was of sound health. He claimed to have taken the deceased to Kharupetia hospital where he was declared dead. He stated that victim was a motor mechanic and he repaired the Auto-van in question and was coming in the said Auto-van. He also stated that me victim was aged 35 years and was of sound health. On being cross-examined he stated that he reached to the place of occurrence within 10 minutes. He denied that the Auto-van was over loaded and that because of over loading of the Auto-van the accident had taken place. He also stated that he had given statement to the police. P.W.3 Tinku Saha stated that at the time of accident he was in Balugaon cross road and was loading goods in a Truck. Having heard that there was an accident, he immediately rushed to the spot and found that the Tractor had hit the Auto-van resulting in an accident and that the victim died on being hit by the plough of the Tractor. In course of cross-examination, he stated that he was at a distance but he ran to the place of accident immediately. The Auto-van involved in the accident was a goods vehicle and apart from the driver, the victim was sitting on the front seat. He stated that the plough attached to the Tractor is on the back side. He denied the suggestion that Auto-van had hit at the Tractor. Pallab Kumar Bagchi was examined as DW1 by the parties. He was the owner of the Auto-van bearing No. AS.01-D/3806. He said that he sold the vehicle to one Smti. Sushila Jain wife of Subhas Jain and submitted necessary documents in support of the said. He stated that said owner of the Auto-van had submitted her written statement admitting her title to the vehicle. He also stated that the dispute was compromised with him by the claimants on receipt of money. The owner of the tractor Jillul Haque was examined as DW2. He stated in his examination that the driver had told him about the accident and he himself did not see. He stated that driver Ali Hussain was plying the Tractor. However, he admitted that the victim Badal Nandi died in the accident where his Tractor was involved One Mainul Haque was examined as DW3 in the case who claimed to be sitting outside a hotel near the place of accident. He stated that driver Ali Hussain was plying the Tractor. However, he admitted that the victim Badal Nandi died in the accident where his Tractor was involved One Mainul Haque was examined as DW3 in the case who claimed to be sitting outside a hotel near the place of accident. He stated that he was talking to 2/3 friends. At that time one Auto-van over took a hand cart when the Auto-van hit at the plough part of the Tractor which on turn, hit the head of the victim. The victim was taken to the hospital where he was declared dead. He stated that there was 3 persons in the Auto-van and one wheel of the Auto was on the pucca road, whereas one wheel was beyond road. In cross-examination, he stated that Badal Nandi died on being hit by the plough of the Tractor. Md. Ali Husain (DW4) was the driver of the Tractor bearing No AS-13-0053. He stated that his Tractor was coming from Kharupetia towards Dalgaon and at that time one Auto-van was coming from the opposite direction. He said that to the right side of his Tractor there was a hand cart loaded with goods and behind the hand cart there was the Auto-van. The Auto-van came from behind and overtook the hand cart and hit at the plough of the Tractor and in the process the victim died. He stated that the Auto-van was running at high speed. In course of cross-examination, he stated that Jillul Haque was the owner of the Tractor and that the deceased would not have died if the Auto-van would not have hit the plough of Tractor. 3. The learned Tribunal after perusal of the evidence adduced by the parties passed impugned judgment and award dated 18.08.2004 holding that the tractor was not guilty of rash and negligent driving and it was the Auto-van which hit the rear side of the tractor resulting in the accident. Having so found the learned Tribunal dismissed claim of the appellants. Against the aforesaid judgment and award, the claimants have approached this court by filing present MAC Appeal. 4. I have heard Mr. S. Chauhan, learned counsel for the appellants. Mr. A. Alam learned counsel for the respondent No. 1 as well as Mr. N. Uddin, learned counsel for the respondent No. 3. 5. Against the aforesaid judgment and award, the claimants have approached this court by filing present MAC Appeal. 4. I have heard Mr. S. Chauhan, learned counsel for the appellants. Mr. A. Alam learned counsel for the respondent No. 1 as well as Mr. N. Uddin, learned counsel for the respondent No. 3. 5. It is not in dispute that the death of the victim was owing to collision between the Tractor bearing No. AS-13-0053 and Auto-van bearing No. AS.01-D/3 806. While it is the case of the claimants that the Tractor was moving in excessive speed without taking necessary precaution and therefore, its extended plough fixed at the rear side hit the Auto-van, the respondents side on the other hand, submit that it is the Auto-van which wanted to overtake the hand cart and in the process because of high speed it hit the rear side of the Tractor. The fact remains that there was an impact between the 2 vehicles and in view of that impact the rear side plough of the Tractor hit at the head of the victim and he died. The immediate cause of death of the victim is the injury received on his head due to impact caused by the plough attached to the rear side of the Tractor. From the records it appears that neither the Auto-van nor the Tractor was covered by any insurance policy. The tractor being a motor vehicle is legally bound to plough in public place only after being insured under Section 147 of the MV Act. Here in this case the Tractor met with the accident on the National High Way which undoubtedly is a public place and it is also not in dispute that the Tractor was not covered by any insurance policy. From the evidence of P. W.3 and P.W.4, it is clear that both the Tractor and the Auto-van were coming from the opposite directions. It is a known fact that the plough was extended beyond the body of the Tractor to some distance and as such it is the duty of a Tractor to maintain such distance so that its rear side plough does not touch any other vehicle. It is found from the evidence of the P.W.3 that one wheel of the Auto-van was on the road while the other side was outside of the road. It is found from the evidence of the P.W.3 that one wheel of the Auto-van was on the road while the other side was outside of the road. This only goes to show that the Auto-van was not going along the middle of the road. There was no head on collision between the Tractor and the Auto-van. This to be noticed that the Auto-van was on its left hand side which must be the right hand side of the Tractor which was coming from opposite direction. Thus, there is reason to believe that the Tractor was on the wrong side. The Tractor was plying either on its left hand side or at least at the middle of the road and the position of the Auto-van was at the side of the road as claimed by DW3 who was examined by the defendants describing him as one of the eye witnesses of the incident. It emerges that at the time of impact with the right side extension of the Tractor, the Auto-van was not in wrong position. At all event there is no denying of the fact that the cause of death of Badal Nandi was due to the injury made on his head out of hit by rear side extension of the Tractor coming from the opposite direction. The Tractor cannot absolve itself of the composite negligence. 6. As observed above the Tractor was without any insurance cover but was plying on public place which is an incident of statutory violation. Considering all these aspects along with the nature of injury caused on the person of the deceased victim by the rear side extension of the Tractor, the inevitable conclusion is that the Tractor is guilty of composite negligence and is therefore, liable to bear at least 50% compensation amount to be paid to the claimants. The judgment of the learned Tribunal, Darrang, therefore, holding that the Tractor is not an offending vehicle is perverse and the said finding is accordingly set aside. 7. The accident had taken place on 19.10.1998 i.e. about 16 years ago and as such there is no point in remanding the appeal to the learned Tribunal for assessing the quantum of compensation. This Court, therefore, has to make the assessment on the basis of the materials available on record. According to the claimant i.e. P.W. 1 the monthly income of the deceased was Rs. This Court, therefore, has to make the assessment on the basis of the materials available on record. According to the claimant i.e. P.W. 1 the monthly income of the deceased was Rs. 5,000/- P.M. However, no material could be placed to prove such income of the deceased and as such it shall be on safer side to accept the notional income of the victim at Rs. 3,000/- P.M. Out of this amount if 1/3 is deducted for personal expenditure then dependency would be at Rs. 2,000/- P.M. The victim was 35-36 years of age at the time of accident and as such applying the principle as enunciated by the Hon'ble Supreme Court in the case of Sarla Verma Vs. Delhi Transport Corporation reported in (2009) 6 SCC 12, multiplyer shall be 16. The assessment of compensation, therefore, shall be as follows: Rs. 2,000 x 12 x 16 = Rs. 3,84,000/-, loss of consortium is Rs. 1,00,000/-, funeral expenses is Rs. 5,000/-, loss of estate is Rs. 1,00,000/-. Thus, the total compensation will be Rs. 5,89,000/-. Out of this amount the respondents shall be liable to pay 50% of the total amount being guilty of composite negligence and as such they shall pay Rs. 2,94,500/- along with interest at the rate of 6% per annum from the date of application till the date of realization. The appeal is allowed. No order as to cost. Appeal allowed.