Download Report

IN THE COURT OF MEMBER MOTOR ACCIDENT CLAIM TRIBUNAL, NAGAON (ASSAM)
M.A.C. Case No.368/09
Mrs. Neena Hussain : Claimant.
-Vs(1) Mustt. Ranjina Begum
(2) Mustt. Neena Hussain
(3)United India Ins. Co. Ltd., and
(4) National Ins. Co. Ltd.,
: Opp. Parties.
Present:
Smti Selina Begum,
Member M.A.C.T., Nagaon.
Advocate for the claimant
:
Advocate for the United Ins. Co.
:
Advocate for the National Ins. Co. :
Mr. B.Ahmed.
Mr. H.P.Saikia.
Mr. G.Bhattacharjee.
Date of evidence
Date of argument
Date of Judgment
11.07.11, 19.08.11,20.08.11, 16.07.12 & 03.12.12.
12.09.13 & 24.03.14.
11.04.14.
:
:
:
JUDGMENT
The present claim case has arisen out of a claim petition filed U/S 166 of the
M.V.Act by one Mrs. Neena Hussain for the injuries sustained by her in a motor vehicle
accident.
The case of the claimant in a nut shell is that on the fateful day of accident i.e., on
10.04.09 at about 9.30 a.m., while she along with her husband Md. Altaf Husssain as
the occupants of the vehicle bearing registration no.AS-01/J-5555 (M/Zen) were coming
from Jorhat towards Nagaon and when they reached at Kuwarital, the offending vehicle
bearing registration no. AS-05/8837 (oil tanker) which was coming from Nagaon side
towards Jorhat in a rash and negligent manner knocked the vehicle no.AS-01/J-5555
(M/Zen). As the result of the accident the vehicle no.AS-01/J-5555 (M/Zen) was
damaged and the occupants of the maruti zen vehicle sustained grievous injuries on their
persons. Immediately after the accident the injured were shifted to Jakhalabandha CHC
and thereafter brought to B.P.Civil Hospital, Nagaon and then were they treated at Kapili
Hospital and thereafter at Dispur Poly Clinic.
The claimant in her claim petition have impleaded the owners and insurers of the
vehicle involved in the accident.
The insurer of the vehicle bearing no.AS-05/8837 (oil tanker), the United India
Ins. Co. Ltd., in their written statement contended, inter-alia, that there is no cause of
action; that the claim petition is not maintainable. The insurance company also denied
the involvement of the vehicle in the alleged accident. It is contended that actually the
incident happened due to the rash and negligent driving of the truck vehicle No.AS-01/J5555 (M/Zen). It is submitted that the driver of the vehicle had no authorised valid
driving licence at the relevant time of accident and hence the company is not liable to
indemnify the owner. The insurance company denied the age, income, occupation of the
injured as alleged in the claim petition.
The O.P. No.1 Mustt. Neena Hussain owner of the vehicle no.AS-01/J-5555
(M/Zen) filed written statement and contended, inter-alia, that the claim petition is not
maintainable and there is no cause of action. The owner of the vehicle has stated that her
vehicle was duly insured with National Ins. Co. Ltd., Nagaon Branch and the policy was
valid at the time of accident.
The O.P. No.2 Ranjina Begum, owner of the vehicle no.AS-05/8837 (oil tanker)
filed written statement contending inter-alia, that the claim petition is not maintainable
and that there is no cause of action. The owner of the vehicle has stated that her vehicle
was duly insured with United India Ins. Co. Ltd., Nagaon Branch and the policy was
valid at the time of accident.
The insurer of the vehicle bearing no. AS-01/J-5555 (M/Zen), the National Ins.
Co. Ltd., in their written statement contended, inter-alia, that there is no cause of action
and that the claim petition is not maintainable. The insurance company also denied the
involvement of the vehicle in the alleged accident. Rash and negligent driving on the
part of the driver of the vehicle no.AS-01/J-5555 (M/Zen) is also denied. The insurance
company contended that actually the accident was caused due to the rash and negligent
driving on the part of the driver of vehicle no.AS-01/J-5555 (M/Zen). The insurance
company denied the age, income, occupation of the injured as alleged in the claim
petition. The insurance company contended that the owner of the vehicle No.AS-01/J5555 (M/Zen) has not paid any premium for the occupant of the vehicle and the owner
of the vehicle obtained Act only policy and so the insurance company is not liable to pay
compensation to the claimant.
The following issues are framed for decision:1. Is there any cause of action for filing the claim petition?
2. Whether claim petition is maintainable?
3. Whether the accident occurred due to rash and negligent driving of the drivers of
vehicle nos. AS-01/J-5555 (M/Zen) and AS-05/8837 (oil tanker)?
4. Whether the claimant is entitled to receive compensation and if so to what extent
and who is liable to pay the same?
5. To what relief/reliefs are the parties entitled?
DECISION AND REASONS THEREOF
Issue No 1 & 2
The claimant has filed this claim U/S 166 of the M.V.Act. In the claim petition
the claimant impleaded the owners and also the insurers of the offending vehicle as party
to the suit. The drivers of the vehicle should have been impleaded but failure to implead
the drivers would not affect the claim case. The evidence of the claimant is that the
incident occurred due to rash and negligent driving of the driver of the vehicle no. AS05/8837 (oil tanker) and that as a result of the accident she sustained injuries. She
disclosed that vehicle No.AS-01/J-5555 (M/Zen) is also involved in the accident. There
is nothing in the record to show why the claim petition is not maintainable. Accordingly,
it is decided that claim petition is maintainable and there is cause of action for filing the
claim petition. These issues are decided accordingly in favour of the claimant.
Issue No.3
The learned counsel for the United India Ins. Co. Ltd., strenuously argued that in
the instant case though two vehicles i.e., vehicle nos. AS-01/J-5555 (M/Zen) and AS05/8837 (oil tanker) are involved in the accident yet actually due to the rash and
negligent driving on the part of the driver of the vehicle bearing no.AS-01/J-5555
(M/Zen) the accident happened. According to the learned counsel, the driver of oil
tanker bearing no.AS-05/8837 which is insured with United India Co. Ltd., is not at all
responsible for the accident and so the said insurance company is not liable to pay
compensation.
It is further submitted that if the court does not exonerate the driver of oil tanker
vehicle no. AS-05/8837 then at best partial negligence can be attributed to him and
drivers of both vehicles ought to be held responsible for their composite negligence and
if any liability is fixed then both the drivers should be hold responsible for their
contributory negligence equally.
Learned counsel for the National Insurance Co. Ltd., on the other hand argued
before this court to exonerate National Ins. Co. Ltd., from the liability as according to
them the vehicle bearing registration no.AS-01/J-5555 (M/Zen) which is insured with
them is not in any way responsible for the accident. It is argued that accident happened
due to the rash and negligent driving of the another vehicle bearing no.AS-05/8837 (oil
tanker).
The claimant Neena Hussain adduced evidence in support of her claim petition as
P.W.1. She during her evidence testified that on 10.04.09 at about 9.30 a.m., while she
was coming from Jorhat towards Nagaon with her family members in the vehicle
bearing registration no.AS-01/J-5555 (M/Zen) and when they reached at Kuwarital, then
the offending vehicle bearing registration no. AS-05/8837 (oil tanker) which was coming
from Nagaon side towards Jorhat in a rash and negligent manner knocked the vehicle
no.AS-01/J-5555 (M/Zen). She disclosed that as a result of the accident their maruti
vehicle no.AS-01/J-5555 (M/Zen) was damaged and the occupants of the maruti zen
vehicle sustained grievous injuries on their persons. She disclosed that immediately after
the accident she was shifted to Jakhalabandha CHC and thereafter brought to B.P.Civil
Hospital, Nagaon and then were they treated at Kapili Hospital and thereafter at Dispur
Poly Clinic. Thereafter she was referred to All India Institute of Medical Science at
Delhi and till now she is undergoing treatment at AIIMS Delhi. She disclosed further
that she sustained fracture in the right 4th, 5th and 6th ribs, fracture at right knee and
right femur, fracture of right actabular margin with supero-lateral dislocation of left hip
joint and right hip joint and many other grievous injuries. She divulged that due to the
accident she became 45% permanently disabled and after operation of her hip joint she
could not move any where without any support and her movement is restricted and
unable do anything without any support and two attendance are always needed for
performing her natural duties and other works.
P.W.2 Mintu Borah who claimed himself to be an eye witness of the occurrence
testified that on 10.04.09 at about 9.30 a.m., he went from Nagaon towards Kaliabor for
attending his office and after getting down from the vehicle he went to a pan shop for
smoking cigarette. At that moment he noticed that a oil tanker vehicle which was
coming towards Jakhalabandha side in a rash and negligent manner hit a Maruti vehicle
which was coming from Jakhalabandha side towards Nagaon from the front side. He
disclosed that as the result of the accident the front door of the maruti vehicle was
damaged and the occupants of the maruti zen sustained serious injuries and they were
immediately shifted to Jakhalabandha CHC by 108 vehicle where from they were
referred to B.P.Civil Hospital, Nagaon for better treatment. He further disclosed that the
accident took place due to rash and negligent driving by the driver of the offending
vehicle bearing registration no. AS-05/8837 (oil tanker)
P.W.3 Arif Hussain who was also one of the passengers of the maruti vehicle
bearing no.AS-01/J-5555 also stated in the same way to that of P.W.1. He during his
evidence disclosed that the accident happened due to rash and negligent driving by the
driver of the offending vehicle bearing registration no. AS-05/8837 (oil tanker).
The learned counsel for the United India Ins. Co. though took the plea that the
accident did not occur due to rash and negligent driving on the part of the driver of the
offending vehicle bearing no.AS-05/8837 (oil tanker) yet could not establish the said
fact. Though the said insurance company examined D.W.1 Robin Kr. Das, Admn.
Officer of their company to establish their plea but on perusal of the evidence of D.W.1
it appears that he is not an eye witness to the occurrence and his evidence cannot
dislodged the evidence of the claimant and the eye witness. Ext.1 accident information
report shows that a case being Kaliabor P.S. Case No.44/09 U/S 279/338/427 of IPC is
registered regarding the accident caused by the offending vehicle bearing registration
No. AS-05/8837 (oil tanker) and Mustt. Neena Hussain and Altaf Hussain were shown
as the ill fated persons who sustained injures due to the accident. Certified copy of FIR
and charge sheet has also been submitted in the analogous case bearing no.369/09 in
support of the alleged accident. After taking judicial notice of the FIR it appears that in
the FIR allegation was brought by the informant that vehicle no.AS-01/J-5555 (M/Zen)
was dashed by the vehicle no. AS-05/8837 (oil tanker) which was driven by the driver
in a rash and negligent manner and at high speed. Apart from this the claimants and the
eye witness reiterated during their testimony that the oil tanker bearing no. AS-05/8837
(oil tanker) was driven in a rash and negligent manner and was responsible for the
accident. The charge sheet clearly suggested that the driver of the oil tanker drove the
tanker in a rash and negligent manner which resulted the accident. The police submitted
charge sheet against the driver of the oil tanker bearing no.AS-05/8837 (oil tanker). The
evidence of the claimant, eye witness P.W.2, FIR, charge sheet and accident information
report proves the fact that the accident was caused due to rash and negligent driving by
the driver of the vehicle bearing registration No. AS-05/8837 (oil tanker) and that the
claimants sustained injuries in the accident.
The O.P. has failed to rebut the said evidence of the claimant. So, from the above
discussion it appears that the accident was caused due to rash and negligent driving on
the part of the driver of the offending vehicle bearing registration No. AS-05/8837 (oil
tanker). Accordingly, this issue is decided in favour of the claimant.
Issue No.4 and 5
Now, the question is what should be the quantum of compensation.
Ext.3 the advice slip of Jakhalabandha CHC dated 10.04.09 shows that claimant
was brought to Jakhalabandha CHC for preliminary treatment and referred to B.P.Civil
Hospital, Nagaon. Ext.4 discharge certificate of Kapili Hospital & Research Centre,
Nagaon shows that claimant was admitted into the said hospital on 10.04.09 and
discharged on 12.04.09 for lacerated wound forehead and fracture dislocation of the
right acetabulum and she was referred to Orthopedic Dept, Guwahati. Ext.5 and 6 X-ray
reports of Kapili Hospital & Research Centre, Nagaon dated 10.04.09 shows fracture in
right 4th, 5th and 6th ribs and right hip joint posterior dislocation. Ext.7 discharge
summary of Dispur Polyclinic and Nursing Home, Guwahati shows claimant was
admitted into the said hospital on 12.04.09 and discharged on 25.04.09 for fracture right
Acetabular margin with fracture fragments displaced superiorly with supero lateral,
dislocation of left hip joint, fracture right rib 4 th, 5th and 6th ribs following alleged history
of RTA on 10.04.09. It also appears from Ext.7 dated 12.04.09 that C.T.Scan of pelvis
including both hip joints reveals fracture of right acetabular margin with supero lateral
dislocation of left hip joint, Associated surrounding soft tissue edema and joint effusion.
ORIF with screw done for fracture acetabulr hip right under SA on 18.04.09 and the
patient was advised for active finger movement and review after 3 weeks. Ext.8
C.T.Scan report of Dispur C.T.Scan dated 14.04.09 of pelvis including both hip joints of
claimant shows fracture of right acetabular margin with supero lateral dislocation of left
hip joint, Associated surrounding soft tissue edema and joint effusion. Ext.9 X-ray report
of Dispur Polyclinic and Nursing Home, Guwahati dated 16.04.09 shows fracture
involving the supero lateral margin of the right acetabulum with the fractured fragment
displaced superiorly, associated dislocation of the right hip joint with femoral head
displaced superiorly and laterally. Ext.10 to 13 are examination reports of whole
abdomen, pelvis with both hips, right knee. Ext.14 X-ray report dated 12.04.09 of right
femur shows possibility of dislocation of right hip joint. Ext.15 the X-ray report of
Dispur Hospital shows fracture of the supero lateral margin of the right acetabulum
showing fixators in situ. Ext.16 is the ECG report of Dispur Polyclinic and Nursing
Home, Guwahati Ext.17 to 20 are examinations reports of Dispur Polyclinic and Nursing
Home, Guwahati. Ext.21 to 39 are prescriptions of Dispur Polyclinic and Nursing Home,
Guwahati. Ext.99 the discharge summary of All India Institute of Medical Sciences,
New Delhi shows claimant was admitted into the said hospital on 29.11.11 and
discharged on 17.12.11 after treatment.
In the history sheet of the patient it is mentioned about road traffic accident in
2009 and acetabulum fracture right hip for which surgery was done outside the AIIMS.
Doctor diagnosed secondary osteoarthritis right hip with old fracture right acetabulum
and operation of right THR (acetabulum size 50, head size 36 mm, Metha stem size 1
under CSE) was done on 02.12.11 and doctor advised physiotherapy and mobilization
and to attend Ortho I OPD after one month under Prof. R.Malhotra.
Since the claimant sustained grievous injuries due to the motor vehicle accident
caused due to rash and negligent driving of the driver of the vehicle bearing registration
no. AS-05/8837 (oil tanker). So claimant is entitled for compensation.
Now, it is to be determined what would be the just and proper compensation and
who is liable to pay the compensation.
The claimant has stated that as a result of the injuries sustained in the accident she
became permanently disabled. She disclosed that at the time of accident she was 38
years old and was housewife and could not do anything without any support and two
attendant is always required with her for performing natural duties and other works. She
stated that she was examined by District Medical Board on 02.08.10 and on examination
the board found Osteo Arthetis right hip with disability of 45%. Ext.2 is the disability
certificate.
P.W.2 Dr. Durgeswar Bora testified that the Member of the District Medical Board
examined Neena Hussain on 02.08.10 and after examination of the patient the board
found Osteo Arthetis right hip with disability of 45%. He exhibited Ext.2 as the
disability certificate issued by District Medical Board, Nagaon and Ext.2(1) as the
signature of Dr. Golap Bora, Chairman of District Medical Board, Nagaon which is
known to him.
In cross-examination he has stated that the Osteo Arthetis developed on right hip
joint. He disclosed that Osteo arthetis means the inflammation of bony ends joints. He
disclosed that in Ext.2 there is no mention that Osteo arthetis developed at any joint. He
disclosed that due to Osteo Arthetis there is restriction in movement and inflammation
and pain. He further disclosed that in Ext.2 regarding assessment of 45% disability no
specific reason is noted.
From the evidence of doctor it appears that the District Medical Board issued the
disability certificate opining that the patient suffered 45% disablement. It appears from
record that the patient was treated at AIIMS, New Delhi from 29.11.11 to 17.12.11
which is subsequent to issuance of disability certificate and doctor found secondary
osteoarthritis right hip with old fracture right acetabulum and right THR operation was
done and doctor at the time of discharge opined that wound is healed. Though she was
asked to attend the hospital again for review after one month but no document is there to
establish that she went to the hospital again for review. As she was operated at AIIMS,
New Delhi for osteoarthritis and THR operation was done on 02.12.11 so definitely
there will be improvement of the disability. The patient did not appear again before the
District Medical Board after returning from AIIMS after THR operation. AIIMS doctor
discharged her after healing of the wound. There is also no document of AIIMS that
after the operation at AIIMS also disability continued. So I cannot agree that after the
operation at AIIMS also her disability continues. It can be safely held that upto
November/2011 she suffered from disability to the extent of 45% but after the operation
at AIIMS on 02.12.11 there is no proof regarding any disability. It cannot be however
negated that she still needs some further treatment towards her injury as doctor of
AIIMS asked her for review after one month. Claimant sustained fracture acetabulum at
right hip, fracture at 3 ribs; faced operation at Dispur Poly Clinic, whereby nailing at hip
joint was done on 18.04.09; faced disability @ 45% till November/2011, faced another
major operation at hip i.e., THR operation at AIIMS, New Delhi on 02.12.11. So for pain
and suffering an amount of Rs.60,000/- is awarded. For check up at AIIMS, New Delhi
as per advice of doctor as per Ext.99 an amount of Rs.20,000/- is added towards future
treatment.
For the cost of attendant for approximately two years as the claimant definitely
required attendant for her 45% disability prior to operation of hip (THR operation) on
02.012.11 an amount of Rs.20,000/- is added.
I have carefully perused the prescriptions and cash memos. On perusal of the
cash memos it appears that claimant has expended an amount of Rs.3,67,672/- for her
treatment. So, she is entitled for this amount as pecuniary damages.
Claimant went to Dispur Poly Clinic, Guwahati and All India Institute of Medical
Sciences, New Delhi for her treatment. In this regard she has submitted documents for
an amount of Rs.29,514/- as conveyance expenditure. So she is entitled to get this
amount as conveyance allowance. Thus, the total amount of compensation the claimant
is entitled to Rs.4,97,186/-.
It is already discussed that the accident occurred due to rash and negligent act on
the part of the driver of the vehicle bearing no. AS-05/8837 (oil tanker). Though the
insurance side took the plea that the driver of the vehicle had no valid licence yet the
insurance side could not prove the said fact. The accident information report on the other
hand shows the fact that driver had the licence bearing no. SRL/2562/TSK valid upto
08.08.09 which was issued by D.T.O. Tinsukia. Above facts shows that the offending
vehicle was driven by a driver having valid licence and owner as such has not violated
the condition of the insurance policy. As per the claim petition and accident information
report the vehicle bearing no. AS-05/8837 (oil tanker) is insured with United India Ins.
Co. Ltd., vide policy no. 130101/31/08/01/00005487valid upto 29.12.09. Hence, the
United India Ins. Co. Ltd., is liable to pay compensation to the claimant.
AWARD AND ORDER
Therefore, it is ordered that the United India Ins. Co. Ltd., be directed to make
payment of Rs.4,97,186/- only within a period of 3 months from today and in the event
of failure to make the payment within the stipulated period the compensation amount
shall bear interest @ 9% per annum from the date of filing the claim petition. The
claimant shall also be entitled to Rs.1,000/- as cost of this proceeding.
Copy of judgment and order be communicated to the O.P.
The judgment is pronounced and delivered in the open court under my hand
and seal of this court on this the 11th day of April/2014.
Dictated & corrected by me:Member,
Motor Accident Claim Tribunal,
Nagaon(Assam).
Member, M.A.C.T., Nagaon.