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IN COURT OF MEMBER, M.A.C.T. :::: MORIGAON.

M.A.C. Case No.93/07.

Hamari Bey : Claimant.

Vs.
Md. Mujammil Hoque and another : Opposite parties.

U/s 166 of the M.V. Act.

PRESENT
SRI P. C. DAS (A.J.S),
MEMBER, M.A.C.T.
MORIGAON, ASSAM.

APPEARANCE

Md. A. Hoque, learned Advocate for the claimant

Mr. K. Medhi, learned Advocate for the O. P. No.1
Mr. R. K. Bharali, learned Advocate for the O.P. No.2
Argument heard on : 20.06.2012.
Date fixed for Judgment : 30.06.2012.
Judgment and Order passed on : 30.06.2012.

J U D G M E N T AND O R D E R

This motor accident claim case has arisen from the petition
No.195/07 filed by the claimant Hamari Bey U/s 166 of M.V. Act
praying for compensation on account of death of his son Babu Bey in
a motor vehicular accident.
Before proceeding any further, it would be appropriate at this
juncture to narrate briefly the facts of the case, as projected by the
claimant in the claim petition.

FACTUAL MATRIX

That, on 28.06.2007 while Babu Bey, the son of the claimant,

being engaged as a labourer of the truck bearing Registration No.AS-
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18 A - 1755 was proceeding from Humren towards Jagiroad by the

said truck ; at about 11.30 a.m. on reaching Paroli Rangcher Road,
due to rash and negligent manner of driving on the part of the driver
of the said truck, he fell down from the vehicle, the back wheels ran
over him and consequently he met his instantaneous tragic
unfortunate death on the spot.

As the claim petition reflects, in this connection Hamren P.S.

case No.14/07 U/s 279/304 A I.P.C was registered.

By filing written statement, the United India Insurance Co.

Ltd., Jagiroad branch/ the O.P. No.2, besides raising the usual pleas
and denying the material particulars as raised in the claim petition
has specifically pleaded that the compensation as claimed by the
claimant is excessive, exorbitant, exaggerated and without any basis.

On the other hand, by filing the written statement Md.

Mujammil Hoque, the Opp. party No.1, the admitted owner of the
truck bearing registration No.AS-18-A-1755 has specifically pleaded
that the said truck was duly insured with the United India Insurance
Co. Ltd. under a valid policy and that the said vehicle was driven by
Md. Imtazur Rahma, who was holding a valid driving licence. .

On the basis of the pleadings the following issues were

framed :

ISSUES

(i) Whether the accident took place due to rash and

negligent driving by the driver of offending vehicle,
in question bearing registration No.AS-18 A-1755 ?
(ii) Whether the claimant is entitled to get any
compensation ? If so, what should be the quantum
of the said compensation ?
(iii) Who should be liable to pay the compensation ?
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DISCUSSIONS, DECISION AND REASONS FOR DECISION

In this case, the claimant side has examined two witnesses

including the claimant Hamari Bey, (PW-1), whereas, as the record
reveals evidence in chief on behalf of the United India Insurance Co.
Ltd. was filed by one Gagan Ch. Talukdar, but he did not turn up to
make himself available for cross-examination under the
circumstances, his evidence in chief alone, cannot be accepted as
evidence in this case.

I have considered the materials on record very carefully and

cautiously.

I have also perused the materials on record including the

written argument.

I have also perused the written argument filed on behalf of

Opp. party No.2, the United India Insurance Co. Ltd.

Issue No.1

Examing himself as witness to the case, the claimant Hameri

Bey (PW-1) has inter-alia stated in his evidence that his son Babu
Bey was engaged as a labourer in the truck bearing registration No.
AS-18-A-1755 and that on 28.06.2007, while the above named Babu
Bey was proceeding as a labourer in the said truck from Humren
towards Jagiroad, at about 11.30 A.M. on reaching Paroli Rangcher
Road, due to rash and negligent driving on the part of the driver of
the said truck his son unfortunately fell down from the vehicle and
consequently, he met his unfortunate tragic death, due to injuries
sustained by him.

According to PW-1, Humren P.S. Case No.14/07 was

registered and that the post mortem examination was conducted at
the Diphu Civil Hospital.
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As added by PW-1 in his evidence, his son was aged about

18 years at the time of his death although the I.O. recorded the same
as 16 years and that he earned @ Rs.3,500/- per month, engaging
himself as a truck labourer.

It is also found from the cross-examination of PW-1 that the

deceased was unmarried, and that he fell down from the truck due
to sudden application of brake, who was sitting on the stack of
bamboo of the truck.

Jilson Ingti (PW-2) has stated in his evidence that at the

relevant time of occurrence while he was waiting for bus at the
Paroli Rangcher Road, he could see tht Babu Bey, who was engaged
as a labourer of the truck fell down from the truck, that the back
wheels ran over him, leading to his instantaneous death on the spot.

The accident information report, (Ext.1), reveals that Babu

Bey was involved in accident on 28.06.2007 at 11.30 a.m. at Paroli
Rangcher Road, through the truck bearing registration No.AS-18-A-
1755, that Md. Intajur Rahman was the driver of the said truck and
he drove the said truck with valid driving licence, that Md. Mujammil
Hoque was the owner of the said truck and the that the same was
insured with the United India Insurance Co. Ltd., Jagiroad Branch,
(the Opp. party No.2), under the policy
No.130103/31/07/02/00000400 valid up to midnight of
30.04.2008.

The post mortem report ,Ext.2, reveals that the deceased

Babu Bey was aged about 16 years, his whole face was crushed,
upper portion of skull was missing and that the whole brain matter
was outside the cranial cavity. Swelling was found on the right side
of chest. Both parietal bones were fractured and some portions were
missing.
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In the opinion of the Medical Officer, the cause of death was

cardio respiratory failure, due to severe cranio cerebral injury.

In the light of above discussions, it is reasonably held that

motor accident took place due to rash and negligent manner of
driving on the part of the driver of the truck bearing registration
No.AS-18-A-1755 and consequently Bubu Bey met his unfortunate
instananeous tragic death on the spot on 28.06.2007 at about 11.30
a.m. at Paroli Rangcher Road.

Accordingly, the issue No.1 is therefore, decided as such in

affirmative in favour of the claimant.

Issue No.2 & 3

It is pertinent to record here that although one Sri Gagan Ch.

Talukdar filed an affidavit in chief on behalf of Opp. party No.2, i.e.
the United India Insurance Co. Ltd., as already discussed, he has not
turned up for cross-examination and therefore, the same cannot be
taken in to consideration, as evidence on record.

However, by way of written argument submitted on behalf

of the United India Insurance Co. Ltd., the Opp. party No.2, it is
specifically pleaded that on failure on the part of the claimant to
produce documentary evidence to prove that the deceased was an
engaged labourer of the truck, he must be considered as a gratuitous
passenger and therefore, the insurance company is not liable to
indemnify the owner/insured.

In this connection, reliance is placed on the decision of the

Hon’ble Supreme Court in National Insurance Co. Ltd.
(appellants) vs. Baljit Kaur and others reported in 2004 (2) SCC
1; MANU/SC/0009/2004 ; wherein it was held that in view of
reversal in New India Assurance Co. Ltd. vs. Asha Rani,
reported in MANU/SC/0661/2003, its previous decision rendered
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in New India Assurance Co. vs. Satpal Singh reported in

MANU/SC/751/1999 that any person, as used in Sec. 147 of the
M.V. Act would not include passengers in goods vehicle and
accordingly the insurer would not be liable to pay compensation to
the family of the victim, who was travelling in a goods vehicle.

The case of the claimant is that his son deceased Babu Bey
was engaged as labourer of the truck in question and thus, he met
instantaneous tragic death due to rash and negligent manner driving
on the part of the driver of the truck bearing registration No.AS-18-
A-1755.

It would not be out of place to record here that no reliable

material whatsoever is placed as to the engagement of the deceased
Babu Bey as the labourer of the said truck. Nor even Mujammil
Haque, the admitted owner of the truck, the Opp. party NO.1, has
come forward with reliable materials that Babu Bey, the deceased
was so engaged as the labourer of his truck. As added by the
claimant (PW-1) in his evidence that his deceased son was aged
about 18 years and that the I.O. without to his knowledge recorded
the same as 16 years.

Post mortem report (Exhibit -2) discloses that the deceased

Babu Bey was 16 years of age at the relevant time of his death.

But curiously enough, from the certified copy of the

chargesheet, as submitted on behalf of the claimant in connection
with G.R. Case No.83/07, it transpires that the claimant Hamari Bey
himself, as informant, reported that the age of his deceased son,
Babu Bey was 16 years only.

Thus, the deceased Babu Bey admittedly and evidently

being a minor, that he was engaged as a labourer of the truck, at the
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relevant time of his death, and that he earned @ Rs.3,500/- per

month, in my considered view, cannot be accepted, as claimed and
accordingly he is held to be a gratuitous passenger of the said truck,
bearing registration No.AS-18-A-1755, as claimed on behalf of the
United India Insurance Co. Ltd., Jagiroad Branch, the Opp. party No.2.

In the result, the said Insurance Co., being the insurer of the
offending truck is initially liable to satisfy the awarded amount in
favour of the claimant with right to recover the same from
Mujammil Hoque, the Opp. party No.1 ; the admitted owner of the
above – referred offending truck.

Now, addressing the question to the extent of

compensation; as the deceased Babu Bey is held to be a minor, aged
about 16 years at the relevant time of occurrence the Notional
Income @ Rs.15,000/- per annum may be taken into consideration.

In Sarala Verma Vs. Delhi Transport Corporation

reported in 2009 (6) S.C.C. 121, the Hon’ble Supreme Court
approving its earlier decisions in Trilok Chandra and Susmma
Thomas held that age of the parents is also a factor to be
considered, while allowing just compensation.

In the instant case in hand considering the age factor of the

father of the deceased at the relevant time of death (there appearing
no references as to the age of his mother) that he was aged about 50
years, the proper multiplier is applicable in this case is 11, thus, the
total amount of compensation comes to Rs.15,000/- X 11 =
Rs.1,65,000/-. The deceased being unmarried, after deduction half
of the said amount, the dependency comes to Rs.82,500/- (Rupees
eighty two thousand five hundred) only.
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Thus, the claimant is entitled to compensation initially from

the United India Insurance Co. Ltd., the Opp. party No.2, subject to
realization of the said owner of the offending truck, as follows :

(i) For Dependency Rs. 82,500/-

(ii) For Funeral expenses Rs. 10,000/-
(iii) For Conveyance Rs. 2,000/-
(iv) For future prospects Rs. 30,000/-
Total Rs.1,24,500/-

(Rupees One lakh twenty four thousand and five hundred) only.

Thus, the issue No.2 & 3 are decided, as such in favour of the
claimant.

ORDER

In the light of the above discussions, the claim of the

claimant Hameri Bey is allowed on contest. The United India
Insurance Co. Ltd., the Opp. party No.2, Jagiroad Branch, is initially
directed to pay the awarded amount of compensation of
Rs.1,24,500/- (Rupees One lakh twenty four thousand and five
hundred) only in favour of the claimant with liberty to recover the
same from Mujammil Haque, the Opp. party No.1, the admitted
owner of the offending truck bearing Registration No.AS-18-A-1755,
along with an interest at the rate of 6% per annum w.e.f. 17.09.2007,
the date of institution of this case, subject to adjustment of the
amount, already paid in favour of the claimant, within 90 (ninety)
days from the date of passing this judgment and order.

Be it recorded here that in the event of failure of Opp. party

No.2, to pay the said amount within the stipulated time, additional
interest at the rate of 9% will have to be paid from the date of
passing this judgment and order.
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Send a copy of this order to the Opp. party No.2 for doing
needful in compliance to this judgment and order.

Given under my hand & seal of this Court on this 30th day of
June, 2012.

Dictated & corrected by me Member

M.A.C.T., Morigaon.
Member,
M.A.C.T., Morigaon.