High Court · 2012

The findings as returned by the Tribunal as regards the accident that had taken place on 07.07.2007 at Gobindpur under Panitola outpost for rash and negligent driving of the vehicle bearing registration No. AS-23E-9149 (Auto Rickshaw) along the National Highway No. 37, the insurance coverage of the off ending vehicle by the respondent No. 2 and the death of one Dipak Das alias Fanc hu Das aged about 15 years in the said accident are not in dispute by either of the parties or in the appeal. As such those findings stand affirmed requiring n o further appraisal. [3] The solitary point that has been projected in the appeal that by dismissing the claim as filed under Section 163A of the M.V Act the Tribunal ha s acted illegally and as such the impugned judgment and award warrants interfere nce from this Court. [4] a reference on the following finding of the Tribunal: Mr. B.K. Jain, learned counsel appearing for the appellant made (cid:28)13. Now, from the evidence discussed above, it is seen that the auto rickshaw i n question belonging to O.P No. 1 was involved in an accident at Gobindpur and t he deceased sustained severe injuries in that accident and later on, he succumbe d to his injuries at A.M.C.H, Dibrugarh, but the claimants have failed to prove that the auto rickshaw was driven by the O.P No. 1 at the time of accident in a very rash and negligent manner and as a result of such driving, the auto ricksha w in question met with the accident. It has also not been proved by the claimant s that the deceased was a handyman in the offending vehicle i.e. the auto ricksh aw by proving any document of examining any witness. CW.3 simply stated that the deceased was a handyman in the auto rickshaw of O.P No. 1, but the O.P No. 1 is silent regarding this contention. The claimants have also failed to prove that the offending vehicle had a valid insurance cover on the date of accident and th e owner and the drier had a valid driving licence. Moreover, it is also seen tha t as per the post mortem report, the age of the deceased was 12 years at the tim e of the accident, but as per the claim petition, his age was 15 years and the d eceased used to earn Rs. 100/- per day as handyman of the offending auto ricksh aw. These facts have not been duly proved by the claimants and this being the po sition, it has also not been proved that the claimant No. 3 and 4 who are minor, have suffered from loss of dependency due to the death of Late Dipak Das. Even it has not been proved that the deceased used to earn Rs. 100/- per day and he used to contribute towards the maintainable and is liable to be dismissed. Apart from this, the claimant No. 3 and 4, who are minors, have not been properly rep resented by any guardian in this claim petition. Considering all these facts and circumstances, the claim petition is dismissed on contest. (cid:29) [5] Mr. Jain, learned counsel for the appellant, to question the sai d finding has referred the written statement filed by the respondent No.1 in the Tribunal where it has been categorically asserted that the offending vehicle ha d valid insurance coverage. Moreover, the vehicle was being driven with the vali d driving licence. It appears further that the said policy as issued by the resp ondent No. 2 namely, the New India Assurance Co. Ltd. was also furnished with th e said written statement bearing policy No. 538806/51/86/01/00003656 and coverin g the risk period from 04.12.2006 to 03.12.2007. The accident occurred on 07.07. 2007, within the risk period. Apart that, the one learner’s licence valid up to 09.02.2007 to 08.08.2007 was also produced which was issued for motor cycle and the light motor vehicle. On reference to the accident information report Mr. Jai n learned counsel further submitted that the same licence No. was valid up to 18 .08.2007. Mr. Jain, learned counsel submitted that as the petition was filed und er Section 163A of the M.V. Act the appellants were not under obligation to prov e the negligence in this regard. [6] Mr. A. Ahmed, learned counsel appearing for the respondents subm itted that the claimant has failed to substantiate the claim as it appeared from the post mortem report that the age of the deceased at the time of post mortem was 12 years and thus it is apparent that he had no occupation at such age. As s uch the basis of the claim has been shattered. For appreciation of the rival contentions as advanced by the lea [7] rned counsel for the parties, this Court has scrutinized the records and finds t hat the Tribunal framed the following issues: (1) Whether a motor vehicle accident took place on 7.7.2007 involving vehicle No . AS-23-E-9149 ( A Auto Rickshaw)? (2) ? If so, what extent? Whether the injured sustained injured sustained injuries in the accident (3) Is the claimant entitled to compensation? If so, to what extent and from who m? The Tribunal has returned the finding on issue Nos. 1 and 2 in f avour of the claimants but issue No. 3 has been decided against them. It appears that the deceased was the adopted son of the appellant Nos. 1 & 2 and the other s appellants i.e. appellant Nos. 3 and 4 are the sisters of the deceased by virt ue of the said adoption. The grandfather of the deceased namely Sri Bokan Das ha s deposed that since the deceased lost his parents at his early age the appellan t Nos. 1 and 2 adopted him as their son. The deceased parents namely Arun Das an d Promila Das were from Jurigori gaon. It is true that no documentary materials either in support of the adoption or subsequent thereto has been admitted in the evidence. It has been further submitted that the appellant also could not estab lish that the deceased was aged about 15 years at the time of the accident and h e was working at that age, even though the CW.2 the owner of the offending vehic le supported the claim of the appellant. Taking an aggregate view of the entire matter this court is of the considered opinion that by denying the compensation the Tribunal has committed serious illegality and as such the impugned judgment and order is set aside. No doubt, the appellant has failed to prove the income o f the deceased to the satisfaction of the Tribunal or to this Court, his income is required to be assessed notionally. Thus, a sum of Rs. 15,000/- be deemed to be his income. Since the deceased was 12 years of age as per post mortem report the appropriate multiplier would be ’15’ , as such the amount of Rs. 15,000/- be multiplied by 15. Thus the compensation on account of pecuniary loss comes to R s. 2,25,000/-. With the said amount, Rs. 2000/- for funeral expenses and Rs.2,50 0/- for loss of estate be added. Thus the total compensation comes at Rs. 2,29,5 00/-, say Rs. 2,30,000/-. Since the deceased was not earning anything there woul d be no deduction from the said sum on account of the personal expenses. The sai d amount shall carry interest @ Rs. 6% per annum from the date of filing of the claim petition till the payment is made. Out of the said amount Rs. 50,000/- eac h be kept in the fixed deposit for the appellant Nos. 3 and 4 till they attain t he majority, if they are not by this time attained the majority. The remaining o f the awarded sum be equally given to the appellant Nos. 1 and 2. [8] For the reasons as aforesaid, this appeal stands allowed to the extent as indicated above. As it has been proved that the deceased was travellin g by the said Auto Rickshaw, the respondent No. 2 is under obligation to cover t he damages as emerged for death of the deceased as the deceased is the third par ty within the meaning and ambit of Section 147(1) of the Motor Vehicle Act. The respondent No. 2, the New India Assurance Co. Ltd. shall pay the said amount in the Tribunal within a period of two months from today. [9] Send down the LCRs forthwith.