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2018 DIGILAW 1128 (GAU)

National Insurance Co. Ltd. , Middleton Street, Kolkata v. Dhanada Talukdar

2018-08-01

RUMI KUMARI PHUKAN

body2018
JUDGMENT : Rumi Kumari Phukan, J. Heard Mr. B.K Purkayastha, learned counsel for the appellant and Mr. K Sarma on behalf of the respondent Nos. 1 and 2. Respondent No. 3 did not turn despite service of notice and notice to the respondent No. 4 did not return despite repeatedly issuance of notice since 2015. Notice is deem to be served. The matter is taken for hearing accordingly. 2. Present appeal was preferred against the award dated 31.12.2013 passed in MAC Case No. 285/2007 passed by Ld. Member Motor Accident Claims Tribunal, Barpeta. 3. The case of the claimant that was preferred before the tribunal is that, on 21.12.2006 while the husband of the claimant Bhabendra Kumar Talukdar was proceeding towards Barma Bazaar by foot at about 5 pm. Suddenly, he was hit by motor cycle bearing registration No. AS-15/A-2905 from back side. As a result of which, he sustained serious injury on his person and ultimately he met his tragic death at the GMCH, Guwahati. The wife of the said deceased person preferred the claim petition claiming compensation for such death of her husband. 4. Notices were issued to the owner, driver and the insurer of the said vehicle and all of them contested the case by filing their respective written statement. In their written statement, the owner and the driver of the said vehicle have pleaded that they were not a fault during the accident so occurred and the vehicle was duly insured at the time of occurrence. Therefore, they are not liable to pay any compensation and the Insurance Company is to indemnify them. On the other hand, according to the Insurance Company there is a serious doubt at about involvement of the aforesaid vehicle No. AS-15/A-2905, which was initially not mentioned in the FIR (Ext-8) so filed by the IO. That being so, it has been submitted that the whole case is manipulated by changing the vehicle No. to pursue the case of the claimant and thereby it is contended by the Insurance Company is that the said vehicle No. AS-15/A-2905 was not involved in the aforesaid accident and they are not liable to pay any compensation. That being so, it has been submitted that the whole case is manipulated by changing the vehicle No. to pursue the case of the claimant and thereby it is contended by the Insurance Company is that the said vehicle No. AS-15/A-2905 was not involved in the aforesaid accident and they are not liable to pay any compensation. The learned tribunal on the basis of the argument between the parties and the evidence on the record, choose to accept the case of the claimant by stating that the claimant in her claim petition as well as by proceeding, the evidence on record has sufficiently prove the involvement of the aforesaid vehicle No. AS-15/A-2905, which caused the accident and by rejecting the plea of the insurance company has directed the insurance company to pay an award of Rs. 12,42,272/- as compensation to the claimant. While awarding such compensation tribunal has taken into account the monthly salary (net salary) of the deceased of Rs. 16,601/- as per relevant document and considering the age of the deceased, multiplier 9 has been applied. That apart some other amount also awarded under the head of loss of dependency, funeral expenses, loss of consortium and loss of estate and Conveyance. 5. I have heard the rival submission of learned counsel for both the parties. According to the learned counsel for the respondent/claimant there is no any irregularity in the findings so arrived by the tribunal as about the amount and also about the involvement of the vehicle whereas according to learned counsel for the appellant there is a serious doubt about the involvement of the said vehicle in the said accident. 6. Pursuance to the submission made by the learned counsel for the appellant, this Court considered the materials in the case diary and the LCR about the wrong mention of the number of the vehicle in the FIR. It is found to be true that in the FIR so filed by the police officer No. of the vehicle was shown to be AS-01/S-1498 which was filed on the basis of General Diary Entry. However, it is to be noted that the same IO filed a subsequent petition before the Ld. It is found to be true that in the FIR so filed by the police officer No. of the vehicle was shown to be AS-01/S-1498 which was filed on the basis of General Diary Entry. However, it is to be noted that the same IO filed a subsequent petition before the Ld. CJM, Nalbari to the effect that the vehicle No. was wrongly mentioned in the ejahar and after thorough investigation and examination of local witnesses and interrogation of the accused rider Prakash Ramchiary, it has come to the light that the actual motor cycle that was used by the accused is AS15/A-2905. It is also admitted by the same police officer in his cross examination that he has made such prayer on the basis of his investigation and the charge sheet was also filed against the said accused Prakash Ramchiary/respondent No. 4. There is nothing contrary to prove that the aforesaid vehicle mentioned in the claim petition was not involved in the occurrence. In the claim petition, claimant has specifically mentioned about the involvement of vehicle bearing registration AS-15/A-2905 and the Form 54 also bears the No. of the said vehicle driven by the said Prakash Ramchiary. 7. In view of the matters on record, it is to be noted that although there is some doubt on the part of the Insurance Company regarding the No. of the vehicle but same is actually not substantiated by insurance company by evidence on record of the claimant's case. Learned counsel for the appellant has fairly submitted that they have no other grievance as regards the award save and except their doubt about the complicity of the said driver as well as vehicle No. in the said accident. The same aspect has been answered to by observation made above. Resultantly, this Court is of opinion that there is no irregularity in the award so passed by Ld. Tribunal. 8. The Insurance Company is directed to deposit the awarded amount within 6 (six) weeks from today along with the interest @ 6 % from the date of filing of the petition but not @ 9 % as indicated in the award. Appellant is allowed to withdraw the statutory amount as has already been deposited before the Registry, 9. The appeal is accordingly dismissed. Return the LCR.