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2018 DIGILAW 1389 (GAU)

Maheswar Lahon v. Jyoti Boruah

2018-09-18

RUMI KUMARI PHUKAN

body2018
JUDGMENT : Rumi Kumari Phukan, J. Heard Mr. M. Chiring, learned counsel for the appellant. Also heard Mrs. R.D. Mozumdar, learned Amicus Curiae appearing for the respondents. 2. The respondent No.1. Smt. Jyoti Boruah, preferred a claim petition on behalf of herself and on behalf of her minor children before the learned Motor Accident Claims Tribunal, at Dibrugarh, praying for compensation on account of death of her husband late Munin Borhah @ Mohan in a motor vehicle accident. 3. On 8.12.2009, while said Munin Borhah @ Mohan was proceeding on his own bicycle on the left side of the road at National Highway No.37 at Lepetkatta Chariali in the District of Dbrugarh, at that time, a Motor Cycle bearing registration No.AS-06/F-4384, knocked him down, as a result of which, he fell down and sustained grievous injuries on his body. Although, he was admitted at the Assam Medical College and Hospital, Dibrugarh, he succumbed to his injuries after a few hours of the incident. The said Munin Borhah @ Mohan was a Home Guard and also a cultivator. He left behind his wife and three minor children at the time of the incident. The claimant/Respondent No.1 prayed for compensation on account of death of her husband as she was unable to maintain herself and her three minor children. The learned Tribunal issued notice to the owner-cum-driver of the vehicle in question only as the there was no insurance of the vehicle. 4. The owner-cum-driver of the offending vehicle contested the case by filing written statement, inter alia, contending that he was not at fault and the accident occurred due to negligence of the deceased himself as he was in a drunken state and was driving his bi-cycle in a zigzag manner and he had contributed to the said incident. On the background of the case, the following issues were framed : (1) Whether the deceased Late Munin Boruah @ Mohan died in the motor vehicle accident that took place on 08.12.09 involving the vehicle bearing Registration No.AS-06-F-4384 due to rash and negligent driving of the said vehicle ? (2) Whether the claimant is entitled to compensation, if so, from whom and to what extent ? 5. Both the parties adduce evidence in support of their respective claims and examined three (3) witnesses from each side in respect of their respective claims. (2) Whether the claimant is entitled to compensation, if so, from whom and to what extent ? 5. Both the parties adduce evidence in support of their respective claims and examined three (3) witnesses from each side in respect of their respective claims. The learned Tribunal, after examining the evidence on record and the documents annexed therewith, came to a finding that the accident took place due to fault on the part of the owner-cum-driver of the offending vehicle, but however as there was a finding in the postmortem report that the deceased was under the influence of alcohol, the learned Tribunal having regard to the said aspect of the matter and also taking the plea of the appellant herein that accused was in a drunken state of affair at the time of incident, decided that the liability of the opposite party/appellant as well as that of the deceased will at the ratio of 70 : 30. 6. Taking into account the age and income of the deceased, the learned Tribunal held that the deceased while working as a Home Guard was also a cultivator and as such his income was taken as Rs. 3,000/- per month and after deduction of 1/4th towards personal expenses, the annual dependency was calculated at Rs. 27,000/- and by applying the multiplier of 15, the total loss of dependency has been calculated at Rs. 4,05,000/-, After adding the funeral expenses at Rs. 5,000/- and loss of consortium at Rs. 5,000/-, the total amount was calculated at Rs. 4,15,000/- and the same was decided as the compensation amount towards the claim. But, however, after making the apportionment at the ratio of 70 : 30, it was held that the claimant is entitled to 70% of the amount being at Rs. 2,90,500/- with a further direction to the opposite party/owner of the vehicle-appellant herein, to pay the said amount together with interest at the rate of 6 per cent from the filing of the claim petition till realization. 7. Challenging the aforesaid award, the present appeal has been filed by the opposite party basically on the ground that the learned Tribunal assessing the income of Rs. 3,000/- per month is on the higher side; and that the deceased being found in contributory negligence, so the apportionment should be less than 70% towards the opposite party-appellant herein. 8. 7. Challenging the aforesaid award, the present appeal has been filed by the opposite party basically on the ground that the learned Tribunal assessing the income of Rs. 3,000/- per month is on the higher side; and that the deceased being found in contributory negligence, so the apportionment should be less than 70% towards the opposite party-appellant herein. 8. Having heard the submission of the learned counsel for the appellant and also the learned Amicus Curaie and having gone through the evidence on record, there is no denial about the fact of incident and the fact that the deceased was riding a bi-cycle at the time of occurrence. Although the evidence of the claimant side was that the claimant was not under the influence of alcohol when the deceased was driving the bi-cycle, but the postmortem report reveals that the deceased was in a drunken state of affair at the time of incident. By adducing evidence, the opposite party-appellant also proved that the deceased was in a drunken condition for which he was driving the bi-cycle in a zigzag manner. On the basis of the evidence on record, the learned Tribunal rightly appreciated in its judgment that even if a person is found on the road driving his vehicle in a zigzag manner, it was the duty of the other side to take more care and caution to avoid accident on the road. While driving a vehicle in a public way, more care and protection is required to be played by a person driving a motor vehicle, because there may be unseen incident on the road for which one has to take care so as to avoid untoward accident on the road. Only because it was a highway, nobody can deny that one can on such road ride a bike in a high speed, but still then it is the tortuous liability of a person to take all precaution while riding vehicle on the road for his own safety as well as the safety of the other side, may be pedestrian or vehicle. Lack of having care and attention speaks about negligence in the eye of law. 9. In the instant case, if the opposite party-appellant found the deceased coming in a zigzag manner, it was incumbent on his part to slow down his vehicle so as to avoid untoward incident. Lack of having care and attention speaks about negligence in the eye of law. 9. In the instant case, if the opposite party-appellant found the deceased coming in a zigzag manner, it was incumbent on his part to slow down his vehicle so as to avoid untoward incident. Because of negligent in doing so, the bi-cycle of the deceased was ultimately knocked down as a result of which he lost his life. Considering the all entirety of the matter, the assessment on account of contributory liability of the deceased at the rate of 30% has been rightly assessed by the learned Tribunal. So far as the assessment of dependency etc. is concerned, the same is also been found to be not on higher side. The claimant had three minor children to maintain. The present appellant has been directed to pay an amount of Rs. 2,90,500/- with 6 per cent interest, which also found to be on proper. 10. Accordingly, the impugned award calls for no interference and, as such, the appeal stands dismissed. The appellant is directed to deposit the aforesaid awarded amount before the learned Tribunal within two months from today. Registry is directed to send a copy of the order to the respondents for information and necessary action. 11. We appreciate the assistance rendered by the learned Amicus Curiae and an amount of Rs. 7,000/- may be given to her by the Assam State Legal Services Authority for the services rendered by her.