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DISTRICT CACHAR, BEFORE THE MEMBER M.A.C.T. CACHAR AT SILCHAR.

Present: - Shri S. K. Dhar,

Member, MACT Cachar,
Silchar.

MAC CASE No. 635/2015

Sri Nirmalendu Bhattacharjee................Claimant/petitioner.

-Versus-

Sri Jayanta Das.

Sri Dhormendra Bakti.
Shriram General Insurance Co. Ltd........Respondent/O.Ps

Argument heard on: - 27-09-2019

Judgment delivered on:-01-10-2019

ADVOCATE APPEARED

Sri R. Ghosh & Sri S.K. Ghosh...............…….for the Claimant.

Sri P. Bhattacharjee………………………..………..for the O.P No-1.
Sri A.S. Mitra & Sri S.Deb............................for the O.P No-3.

JUDGMENT

1. By this judgment I intend to dispose of the petition filed by the

petitioner/claimant under Section 166 of the Motor Vehicles Act, 1988 (as amended
up-to-date) praying for award of compensation of a sum of Rs. 33,96,744/- for the
death of his elder brother namely Late Nobendu Kumar Bhattacharjee, (hereinafter
referred to as the deceased), aged 40 years in a road traffic/motor vehicle accident
that had occurred on 02-02-2015 at about 9:45 P.M. on Hailakandi road under the
jurisdiction of Silchar P.S. in the District of Cachar, Assam.

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2. Case of the petitioner in brief is that on 02-02-2015 the

deceased being a pillion rider of the Scooty bearing Registration No AS-11D/7192
was going from Rangirkhari side towards link road along with his friend Sri Sanjib
Das. When they reached in front of Green View Nursing Home on Hailakandi road
on seeing a friend whose patient was admitted in that hospital they stopped the
Scooty and started talking standing on the road side. At that time, all on a sudden,
the Auto Truck bearing Registration No AS-11AC-8242 which was proceeding from
Rangirkhari side being driven by its driver in a rash and negligent manner by
overtaking another vehicle could not control and knocked down the deceased and
his friend and thereafter dashed the parked Scooty. As a result of the occurrence
of accident deceased sustained fatal injuries on his person and was immediately
evacuated to the Silchar Medical College and Hospital (SMCH) in an unconscious
condition but unfortunately on the following day the deceased succumbed to his
injuries. Following the accidental death Post Mortem examination on the dead body
of the deceased was conducted at the same Hospital. It is alleged that the accident
took place due to rash and negligent driving by the O.P No-2/driver of the offending
Auto Truck bearing Registration No AS-11AC-8242 owned by the O.P. No-1 and
insured with the O.P. No-3. It is also averred that in respect of the road traffic
accident Silchar P.S. registered a criminal case vide Silchar P.S. case No 354/15 U/S
279/338/304(A)/427 IPC and investigated into the same.

3. It is further averred that the deceased was 49 years old and by

occupation a service holder in the Assam State Transport Corporation and receiving
a monthly salary of Rs.18,024/- approximately. That deceased was unmarried and
parents of the deceased predeceased him. Thus claimant claimed that he was a
dependent upon income of the deceased and hence claimed compensation of Rs.
33,96,744/-. It may be mentioned here that originally the claim petition was filed
jointly by the present claimant along with his another brother namely Nripesh
Bhattacharjee. But during pendency of the proceeding said Nripesh Bhattacharjee
expired and his name was struck off.

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4. In pursuance to the claim petition notices was served upon the

O.Ps. On receipt of Notice the owner filed written statement denying various
allegations contending inter alia that the vehicle was covered by valid insurance
policy issued by the O.P No-3/Shriram General Insurance Co Ltd and the
O.P./Insurance Company is liable to indemnify the insured. The O.P No-2/driver of
the offending vehicle did not respond. The O.P No-3/Shriram General Insurance Co
Ltd filed a separate set of its written objection denying the mode and manner of the
accident as alleged in the claim petition. The Insurance Company also took defence
u/s 147/149(2)/170 of the Motor Vehicles Act. The Insurance Company further
pleaded that the amount of compensation claimed is excessive, inflated and without
any basis.

5. From the pleadings of the parties my learned predecessor in

chair framed some issues which are reframed after perusal of the materials in
record as below:

ISSUES

(i) Whether Late Nobendu Kumar Bhattacharjee, the deceased, died as a

result of the motor vehicle/road traffic accident that had occurred on 02-02-
2015 at about 9:45 P.M. on Hailakandi road under the jurisdiction of Silchar
P.S.?

(ii) Whether the accident occurred due to rash and negligent driving by the
driver of the Piaggio Auto Pick up vehicle bearing Registration No AS-11-AC-
8242?

(iii) Whether the claimant is entitled to compensation? If so, what amount of

compensation is just & reasonable? AND

(iv) By whom amongst the O.Ps the same is payable?

Discussion, decision and reasons there for:-

6. In course of evidence to prove the issues in hand the claimant

tendered his evidence by way of affidavit as P.W-1 and marked several documents

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from Ext-1 to Ext-9 and Annexure-I and Annexure-IV. Claimant side also examined
another witness as P.W-2 from the office of the employer of the deceased with a
view to prove income of the deceased at the relevant time of accident. Besides the
P.W.-1 and P.W-2 this Tribunal also examined another person who was the owner
of the involved scooty and was present at the place of occurrence. The contesting
Insurance Company took full scope to cross-examine the witnesses. Upon closure of
evidence of the claimant side the Insurance Company did not adduce any defence
witness. Upon closure of evidence stage of both the sides, I have heard argument
advanced by the learned counsels for both the sides. I have also perused the
evidence on record in its entirety. For the sake of brevity and convenience of
discussion and decision the issues are taken up together without following the serial
number of the issues. The findings on the specific issues are as under:-

7. It is the case of the claimant that deceased died as a result of road

traffic/motor vehicle accident arising out of rash and negligent driving of a motor
vehicle owned by the O.P. No-1, driven by the O.P. No-2 and insured with the O.P.
No-3. The claim petition was preferred U/S 166 M. V. Act. Hence it is incumbent
upon the claimant to prove that the deceased died in a road traffic accident/motor
vehicle accident caused due to the rash and negligent driving by the driver of the
offending vehicle. To determine the negligence of the driver of the offending
vehicle it has been held in National Insurance Company Ltd -Vs- Pushpa
Rana & Another reported in the 2009 Accident Claims Journal 287 as
follows:-

“The last contention of the appellant insurance company is that the

respondents/claimants should have proved negligence on the part of the
driver and in this regard the counsel has placed reliance on the judgment of
the Hon'ble Apex Court in Oriental Insurance Company Ltd. V. Meena Variyal
(supra). On perusal of the award of the Tribunal, it becomes clear that the
wife of the deceased had produced: (i) certified copy of the criminal record
of criminal case in FIR No 955 of 2004, pertaining to involvement of

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offending vehicle (ii) criminal record showing completion of investigation of

police and issue of charge sheet under sections 279/304A, Indian Penal Code
against the driver; (iii) certified copy of FIR, wherein criminal case against
the driver was lodged; and (iv) recovery memo and mechanical inspection
report of offending vehicle and vehicle of deceased. These documents are
sufficient proofs to reach the conclusion that the driver was negligent.
Proceedings under the Motor Vehicle Act are not akin to proceedings in a
civil suit and hence strict rules of evidence are not required to be followed in
this regard. Hence, this contention of the counsel for the appellant also falls
face down. There is ample evidence on record to prove negligence on part of
the driver."

8. It is an established principle of law that in a claim petition under the

Motor Vehicle Act the standard of proof to establish rash and negligent driving by
the driver of the offending vehicle is not at par with the criminal case where such
rashness and negligence is required to be proved beyond all shadow of reasonable
doubt. In Kaushnamma Begum and others-Vs-New India Assurance
Company Limited reported in the (2001) 2 SCC 9, it was inter alia held by the
Hon'ble Supreme Court that the issue of wrongful act or omission on the part of
the driver of the motor vehicle involved in the accident has been left to a secondary
importance and mere use or involvement of motor vehicle in causing bodily injury
or death to a human being or damage to property would make the petition
maintainable under Sections 166 and 140 of the Motor Vehicle Act.

9. In the present claim petition the case of the claimant is that 02-02-
2015 the deceased being a pillion rider of the Scooty bearing Registration No AS-
11D/7192 was going from Rangirkhari side towards link road along with his friend
Sanjib Das. When they reached in front of Green View Nursing Home on Hailakandi
road on seeing a friend they stopped the Scooty and started talking standing on the
road side. At that time all on a sudden the Auto Truck bearing Registration No AS-
11AC-8242 proceeding from Rangirkhari side being driven by its driver in a rash and

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negligent manner by overtaking another vehicle lost control and knocked down the
deceased and his friend and thereafter dashed the parked Scooty. As a result of
the occurrence of accident deceased sustained fatal injuries on his person and was
immediately evacuated to the Silchar Medical College and Hospital (SMCH) in an
unconscious condition but unfortunately on the following day the deceased
succumbed to his injuries. Following the accidental death Post Mortem examination
on the dead body of the deceased was conducted at the same Hospital. To prove
death of the deceased arising out of rash and negligent driving by the O.P No-
2/driver of the offending vehicle, the P.W-1 produced certified copies of the criminal
case registered against the driver of the offending Auto Piaggio Pick Up bearing
Registration No AS-11AC-8242. On perusal of the Accident Information Report in
Form 54, FIR and Charge Sheet marked as Ext-1 to Ext-3; claim of the claimant is
found corroborated which fortifies the fact that on the aforesaid date, time and
place of occurrence the accident occurred and in respect of the accident a regular
P.S. Case No 354/14 u/s 279/338/304(A)/427 IPC was registered at Silchar Police
Station in which the Investigating Police Officer after completion of investigation
submitted charge sheet against the O.P No-2/driver of the offending Auto Piaggio
Pick Up bearing Registration No AS-11AC-8242 u/s 279/337/304(A)/427 IPC holding
that a prima facie case was found well established against him under the aforesaid
Sections of law. The Seizure List marked as Ext-4 shows that in connection with the
accident police seized both the offending Auto Pick up vehicle and involved Scooty
and the documents of the Auto Pick up vehicle. The MVI Report marked as Ext-5
reveals that the offending vehicle was examined by MVI and found damaged. The
Post Mortem report marked as Ext-6 reveals that Post Mortem examination on the
dead body of the deceased was conducted on 03-02-2015 i.e. on the very following
day at about 1:40 P.M. at the SMCH and the Forensic Surgeon opined that death
was due to shock following injuries sustained which were ante mortem in nature
and caused by blunt force impact. Approximate time since death was 12 to 24
hours. The accident took place on 02-02-2015 at about 9:45 P.M. Deceased was
shifted to the SMCH wherein he died. The Post Mortem was conducted on the

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following day at about 1:40 p.m. Therefore, opinion of the doctor that deceased
died within the approximate time of 12 to 24 hours corroborates claim of the
claimant that deceased died as a result of the motor vehicle accident occurred on
02-02-2015 at about 9:45 P.M. The answering Insurance Company though cross-
examined the P.W-1 but it failed to controvert the evidence of the P.W-1 coupled
with documentary proofs to negate the fact of accident arising out of rash and
negligent driving by the O.P No-2/driver of the offending motor vehicle resulting in
death of the deceased. The witness Sanjib Das who was present along with the
deceased and sustained injuries in the same incident gave direct eye witness
testimonies of the occurrence of accident wherein he completely corroborated the
testimonies of the P.W. 1. This witness also attributed rash and negligent driving on
the part of the driver of the Auto Truck in the motor vehicle/road traffic accident
causing fatal injuries to the deceased and ultimately the deceased succumbed to
the injuries. Though the O.P. Insurance Company cross examined both these
witnesses but failed to elicit any deficiency or shortfall to discredit their evidence.
Since claimant side discharged its burden of proof with the help of police papers
that accident occurred due to rash and negligent driving by the driver of the
offending vehicle it is the duty of the Insurance Company to establish that the
accident did not occur due to rash and negligent driving of the offending vehicle
rather deceased was himself negligent solely or he contributed to the occurrence.
But the Insurance Company did not discharge its burden. Merely because in the
accident one Scooty (a two wheeler motor vehicle) was also involved in which
deceased was a pillion rider this Tribunal cannot assume any negligence on the part
of the deceased and rider of the motorcycle. In this case police investigated the
case and submitted Charge Sheet against the driver of the offending vehicle and no
evidence in adverse is available that the offending vehicle was not mechanically fit
or there was any brake failure to assume that driver was not rash and negligent.

10. So relying upon the testimonies of the P.W-1 and Sri Sanjib Das
as well as relying upon the exhibited documents the issue No (i) and (ii) are

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decided in favour of the claimant holding that the deceased died as a result of
motor vehicle/road traffic accident occurred on 20-01-2015 under the jurisdiction of
Silchar Police Station and the accident occurred due to rash and negligent driving of
the O.P-No 2/driver of the offending Auto pick up vehicle bearing Registration AS-
11-AC-8242.

11. In view of affirmative decision of the issue No (i) and (ii) the
claimant being own brother/legal heir of the deceased is found entitled to
compensation.

12. Next remains the question regarding quantum of

compensation that has to be awarded. Since this is a case of death, the age,
income of the deceased and number of dependents needs to be considered.
According to the petitioner, the deceased Nobendu Kumar Bhattacharjee was aged
about 49 years at the time of his death. Since occupation of the deceased is
claimed to be a service in the Assam State Transport Corporation the P.W-2 being
an official of the employer of the deceased deposed before the court that as per
service record date of birth of the deceased was 30-12-1965. During cross-
examination said fact remained unchallenged. Since deceased was a corporation
service holder his date of birth recorded in the official record as deposed by P.W-2
is a reliable piece of evidence. Accident took place on 02-02-2015 and in that count
if date of birth of the deceased was 30-12-1965 then he was 49 years 1 month old.
In view of the ratio laid down in Sarla Verma and ors-Vs-Delhi Transport
Corporation & others the deceased fell in the age group of 46 to 50 for which
the multiplier prescribed is 13. Hence, this court has selected the multiplier 13.

13. The claimant is the younger brother of the deceased. It is

undisputed that deceased was a bachelor and his parents predeceased him. The
fact that deceased was serving in the department of ASTC is corroborated by the
deposition of P.W-2 who worked as Assistant Estate Officer, ASTC, Silchar. The
P.W-2 further deposed that deceased received gross pay of Rs. 18,024/- in the

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month of January, 2015. During cross-examination he deposed that net pay of the
deceased was Rs.10, 286/-. The deposition of P.W-2 is corroborated by the
contents of Last pay certificate of the deceased vide Ext-8. Hence it is established
that deceased was drawing gross salary of Rs. 18,024/- and his net salary was
Rs.10, 286/-. Now, question comes whether the claimant was dependant on the
income of the deceased or not. Therefore, for the sake of removal of doubt this
court has reproduced the provisions of section 166 Motor Vehicles Act as follows:-

"Application for compensation: - (1) An application for compensation arising

out of an accident of the nature specified in sub- section (1) of Section
165 may be made-

(a) by the person who has sustained the injury; or

(b) by the owner of the property; or

(c) where death has resulted from the accident, by all or any of the legal
representatives of the deceased; or

(d) by any agent duly authorized by the person injured or all or any of the
legal representatives of the deceased, as the case may be.”

14. According to Section 2(11) of Code of Civil Procedure, 1908 (in short
the 'CPC'), "legal representative" means a person who, in law, represents the estate
of a deceased person, and includes any person who intermeddles with the estate of
the deceased and where a party sues or sued in a representative character, the
person on whom the estate devolves on the death of the party so suing or sued.
Almost in similar terms is the definition of legal representative under the Arbitration
and Conciliation Act, 1996, i.e. under Section 2(1)(g).

15. As observed by Hon’ble Supreme Court in Custodian of

Branches of BANCO National Ultramarino –Vs- Nalini Bai Naique (AIR
1989 SC 1589) the definition contained in Section 2(11), CPC is inclusive in
character and its scope is wide, it is not confined to legal heirs only. Instead, it
stipulates that a person who may or may not be legal heir, competent to inherit the

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property of the deceased, can represent the estate of the deceased person. It
includes heirs as well as persons who represent the estate even without title either
as executors or administrators in possession of the estate of the deceased. All such
persons would be covered by the expression 'legal representative'. As observed
in Gujarat State Road Transport Corporation v. Ramanbhai Prabhatbhai
and Anr. (AIR 1987 SC 1690) a legal representative is one who suffers on
account of death of a person due to a motor vehicle accident and need not
necessarily be a wife, husband, parent and children.

16. In an Indian family, brothers, sisters and brothers’ children and

sometimes foster children live together and they depend upon the bread-winner of
the family and if the bread-winner is killed on account of a motor vehicle accident,
there is no justification to deny them compensation. In the instant case deceased
was unmarried and a service holder having permanent source of income. It is
undisputed that deceased and the claimant were living under the same roof. Merely
because claimant was a major person does not constitute any meaning that he
would completely go-by monetary benefit from his elder brother who was a
government servant and thus bread winner of the family. Deceased had no wife
and no children except the claimant and another brother who died during pendency
of the case. Claimant is the legal heir to the estate of the deceased. Whatever the
deceased would save from his earning the claimant would be entitled to it being a
legal heir to the estate of the deceased. But due to death of the deceased he
sustained loss of such estate. Therefore, we cannot deny compensation to him.
Since there is only one dependant this court has arrived at judicial determination
that contribution of the deceased towards claimant was 50% only. Hence, the
remaining fifty percent of the annual income to be deducted towards personal and
living expenses of the deceased.

17. It is already established that deceased was having gross salary

of Rs. 18,024/-. Learned counsel of the Insurance Company during cross-
examination has brought in record the net salary. So a question may arise whether
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for computation of compensation net salary will be taken into consideration or gross
salary of the deceased. Following decision of our Apex Court in National
Insurance Co. Ltd. v. Indira Srivastava & Ors., 2008 (2) SCC 763, Sunil
Sharma Vs. Bachetar Singh II 2011 ACC 552 (SC), Vishakha Vs Shree Pal
MANU/DE 1684/2012, Shyamwati Sharma Vs Karam Singh 2010 ACJ
1968 SC, I am of the opinion that deduction towards other heads like medical
allowance, house rent, GIS, bank loan, GPF, CPF are not liable to be deducted from
gross monthly salary to assess compensation except the non-refundable
professional tax. Therefore, after deduction of professional tax of Rs.208 from the
monthly gross salary of the deceased this court has arrived at monthly earning of
Rs. 17,816/- (Rs.18024 - Rs.208). Hence, annual income stands at Rs.17, 816/- x
12 months= Rs. 2, 13,792/-. 50% deduction has been made towards personal and
living expenses of the deceased from the annual income and total annual
dependency of the claimant stands at Rs. 2,13,792/- minus Rs. 1,06,896/- = Rs.
1,06,896/-. As per the recent decision of our Apex Court in National Insurance
Company ltd.-Vs- Pranay Sethi reported in the (2017) ACJ 2700 recently
reiterated in Lovely Debi Chowhan-vs-Shriram General Insurance Company
Ltd, MANU/SCOR/01248/2019 we are to add 30% of the annual loss of
dependency i.e. Rs. 32, 068/- as future prospect since deceased fell in the category
of 40 to 50 years having permanent job. To find out the total loss of dependency
we are to multiply the sum of Rs. 1, 06,896/- + Rs. 32,068/- = Rs. 1, 38,964/- by
the multiplier 13. So the total loss of dependency stands at Rs. 1, 38,964/- x 13 =
Rs.18, 06,532/-. As per the decision of the Hon’ble Apex Court in National
Insurance Co. Ltd.–Vs-Pranay Sethi (supra) we are to add Rs. 15, 000/-
under the head funeral expenses to find out the just compensation. So the just
compensation stands at Rs. 18, 06, 532/- + Rs. 15, 000/- = Rs.18, 21,532/-
(Rupees eighteen lakh twenty-one thousand five hundred thirty-two) only
which the claimant is entitled to get as just compensation. Accordingly, the issue No
(iii) is decided.

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18. The accident took place due to rash and negligent driving by
the driver of the offending vehicle owned by the O.P-1, driven by the O.P-2 and
insured with the O.P No-3/Shriram General Insurance Company Ltd. Admittedly the
offending vehicle was covered by a policy of insurance issued by the O.P. No-3. The
Insurance Company did not adduce any defence witness to establish that there was
any violation of terms and condition of the policy of insurance by the insured. But
the Ext-4 seizure list shows that no permit of the offending vehicle was seized. The
owner of the vehicle also did not produce any permit along with his WS nor did he
make any whisper about the permit. Where the offending vehicle plied without any
permit at the time of accident it is a clear violation of the policy of insurance. But
mere non-seizure of Permit cannot lead this Tribunal to arrive at an ultimate
conclusion that the vehicle was not having any permit at the time accident. Since
availability or non availability of a valid permit at the time of accident is
not clearly established in record; this Tribunal finds it fit to direct the
Insurance Company to first pay the compensation and then to proceed for
recovery of the same from the owner of the vehicle subject to the
condition that it will convincingly establish that the offending vehicle i.e.
the Pick Up Van bearing registration No. AS-11-AC-8242 was not having
any permit at the relevant time of accident. The owner shall also be at
liberty to produce the copy of permit, if any, covering the date of accident
and in such event the right to recovery of the Insurance Company shall
stand extinguished. The Issue No (iv) is decided accordingly.

19. In view of decisions arrived at of the issues the claimant is

found entitled to compensation of Rs.18,21,532/- (Rupees eighteen lakh
twenty-one thousand five hundred thirty-two) and the O.P. No-3/ Shriram
General Insurance Co Ltd is directed to deposit the amount of compensation within
30 days from today along with interest @ 9% per annum with effect from the date
of filing of the claim petition i.e. 07-04-2015till realization in full [reliance is
placed in the decision of our own High Court in the case of Sabir Sheik @

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Sabbir Sheikh-Vs-New India Assurance Co. Ltd. reported in the 2019 (2)
T.A.C. 845 (Gau)]. The Insurance Company shall proceed to recover the
compensation amount as stated in the Para No. 18 of this judgment.

20. Furnish copy of the judgment to the parties free of cost. The
case is disposed of on contest.

Given under my hand and seal of this court on this the 1st day
of October, 2019 at Silchar.

Dictated and corrected by me:-

Member Member
Motor Accident Claims Tribunal Motor Accident Claims Tribunal
Cachar, Silchar. Cachar, Silchar

Transcribed by me:-

(Dhrubajyoti Das) Stenographer

*******

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