Gauhati High Court
The Bajaj Allianz General Insurance Co ... vs Bibha Mishra And 6 Ors (F) on 5 June, 2024
Page No.# 1/15
GAHC010112102020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp./518/2022
THE BAJAJ ALLIANZ GENERAL INSURANCE CO LTD
HAVING ITS REGISTERED AND HEAD OFFICE AT GE PLAZA, AIRPORT
ROAD, NERADA, PUNE 411006 AND NORTH EASTERN REGIONAL OFFICE
AT SREEJI TOWER, 2ND FLOOR, C/O GAUHATI TEA WAREHOUSING PVT.
LTD. ADJACENT TO MAHINDRA SHOWROOM, CHRISTIANBASTI,
GUWAHATI, PIN 78105, KAMRUP METROPOLITAN DIST., ASSAM
(REPRESENTED BY ITS LEGAL EXECUTIVE, CLAIMS DEPTT., MR.
NAYANJYOTI CHOUDHURY)
VERSUS
BIBHA MISHRA AND 6 ORS (F)
W/O LATE RAKESH @ RAJESH MISHRA, R/O LALMATI, P.S. ABHAYAPURI,
DIST. BONGAIGAON, ASSAM, PIN 783384
2:SUBHASH MISHRA
S/O LATE ASHA RAM MISHRA
R/O LALMATI
P.S. ABHAYAPURI
DIST. BONGAIGAON
ASSAM
PIN 783384
4:RITIK MISHRA
S/O LATE RAKESH @ RAJESH MISHRA
R/O LALMATI
P.S. ABHAYAPURI
DIST. BONGAIGAON
ASSAM
PIN 783384
5:BHUMI MISHRA
Page No.# 2/15
D/O LATE RAKESH @ RAJESH MISHRA
R/O LALMATI
P.S. ABHAYAPURI
DIST. BONGAIGAON
ASSAM
PIN 783384
6:ALIAZ AHMED
S/O SULTAN AHMED
R/O VILL. ABHAYAPURI
WARD NO. 1
P.O. AND P.S. ABHAPURI
DIST. BONGAIGAON
ASSAM
PIN 783384
7:AKHTA HUSSAIN
S/O LATE H. AHMED
R/O VILL. ABHAYAPURI
P.O. AND P.S. ABHAYAPURI
DIST. BONGAIGAON
ASSAM
PIN 78338
Advocate for the Petitioner : MR. A BHATTACHARYYA
Advocate for the Respondent : MS. U HAZARIKA (R-6 AND 7)
Linked Case : I.A.(Civil)/1382/2020
THE BAJAJ ALLIANZ GENERAL INSURANCE CO LTD
HAVING ITS REGISTERED AND HEAD OFFICE AT GE PLAZA
AIRPORT ROAD
NERADA
PUNE 411006 AND NORTH EASTERN REGIONAL OFFICE AT SREEJI TOWER
2ND FLOOR
C/O GAUHATI TEA WAREHOUSING PVT. LTD. ADJACENT TO MAHINDRA
SHOWROOM
CHRISTIANBASTI
GUWAHATI
PIN 78105
KAMRUP METROPOLITAN DIST.
ASSAM (REPRESENTED BY ITS LEGAL EXECUTIVE
Page No.# 3/15
CLAIMS DEPTT.
MR. NAYANJYOTI CHOUDHURY)
VERSUS
BIBHA MISHRA AND 6 ORS
W/O LATE RAKESH @ RAJESH MISHRA
R/O LALMATI
P.S. ABHAYAPURI
DIST. BONGAIGAON
ASSAM
PIN 783384
2:SUBHASH MISHRA
S/O LATE ASHA RAM MISHRA
R/O LALMATI
P.S. ABHAYAPURI
DIST. BONGAIGAON
ASSAM
PIN 783384
3:PHOOL KUMARI MISHRA
W/O SRI SUBHASH MISHRA
R/O LALMATI
P.S. ABHAYAPURI
DIST. BONGAIGAON
ASSAM
PIN 783384
4:RITIK MISHRA
S/O LATE RAKESH @ RAJESH MISHRA
R/O LALMATI
P.S. ABHAYAPURI
DIST. BONGAIGAON
ASSAM
PIN 783384
5:BHUMI MISHRA
D/O LATE RAKESH @ RAJESH MISHRA
R/O LALMATI
P.S. ABHAYAPURI
DIST. BONGAIGAON
ASSAM
PIN 783384
6:ALIAZ AHMED
S/O SULTAN AHMED
R/O VILL. ABHAYAPURI
WARD NO. 1
P.O. AND P.S. ABHAPURI
DIST. BONGAIGAON
Page No.# 4/15
ASSAM
PIN 783384
7:AKHTA HUSSAIN
S/O LATE H. AHMED
R/O VILL. ABHAYAPURI
P.O. AND P.S. ABHAYAPURI
DIST. BONGAIGAON
ASSAM
PIN 783384
------------
Advocate for : MR. A BHATTACHARYYA
Advocate for : MR. J RAHMAN (R-1
5) appearing for BIBHA MISHRA AND 6 ORS
Linked Case : I.A.(Civil)/2458/2022
THE BAJAJ ALLIANZ GENERAL INSURANCE CO LTD
HAVING ITS REGISTERED AND HEAD OFFICE AT GE PLAZA
AIRPORT ROAD
NERADA
PUNE 411006 AND NORTH EASTERN REGIONAL OFFICE AT SREEJI TOWER
2ND FLOOR
C/O GAUHATI TEA WAREHOUSING PVT. LTD. ADJACENT TO MAHINDRA
SHOWROOM
CHRISTIANBASTI
GUWAHATI
PIN 78105
KAMRUP METROPOLITAN DIST.
ASSAM (REPRESENTED BY ITS LEGAL EXECUTIVE
CLAIMS DEPTT.
MR. NAYANJYOTI CHOUDHURY)
VERSUS
BIBHA MISHRA AND 6 ORS (F)
W/O LATE RAKESH @ RAJESH MISHRA
R/O LALMATI
P.S. ABHAYAPURI
DIST. BONGAIGAON
ASSAM
PIN 783384
2:SUBHASH MISHRA
S/O LATE ASHA RAM MISHRA
Page No.# 5/15
R/O LALMATI
P.S. ABHAYAPURI
DIST. BONGAIGAON
ASSAM
PIN 783384
3:PHOOL KUMARI MISHRA
W/O SRI SUBHASH MISHRA
R/O LALMATI
P.S. ABHAYAPURI
DIST. BONGAIGAON
ASSAM
PIN 783384
4:RITIK MISHRA
S/O LATE RAKESH @ RAJESH MISHRA
R/O LALMATI
P.S. ABHAYAPURI
DIST. BONGAIGAON
ASSAM
PIN 783384
5:BHUMI MISHRA
D/O LATE RAKESH @ RAJESH MISHRA
R/O LALMATI
P.S. ABHAYAPURI
DIST. BONGAIGAON
ASSAM
PIN 783384
6:ALIAZ AHMED
S/O SULTAN AHMED
R/O VILL. ABHAYAPURI
P.O. AND P.S. ABHAPURI
DIST. BONGAIGAON
ASSAM
PIN 783384
7:AKHTA HUSSAIN
S/O LATE H. AHMED
R/O VILL. ABHAYAPURI
P.O. AND P.S. ABHAYAPURI
DIST. BONGAIGAON
ASSAM
PIN 783384
------------
Advocate for : MR. A BHATTACHARYYA
Advocate for : appearing for BIBHA MISHRA AND 6 ORS (F)
Page No.# 6/15
BEFORE
HONOURABLE MRS. JUSTICE MARLI VANKUNG
JUDGMENT & O R D E R (CAV)
Date of Judgment : 05-06-2024
Heard Mr. A. Bhattacharyya, learned counsel for the appellant. Also heard
Mr. M. Khan, learned counsel for respondent Nos. 1, 2, 4 & 5 along with Mr. K.R.
Patgiri, learned counsel for respondent Nos. 6 & 7. It is seen that the name of
respondent no.3 has been struck of.
2. The instant appeal filed under Section 173 of the Motor Vehicle Act, 1988
is against the Judgment & Order dated 17.07.2019 passed in MAC Cases
No.115/2013 by the learned Member, Motor Accident Claims Tribunal,
Bongaigaon.
3. The facts of the case in brief is that on 07.05.2012, at about 8:10 P.M, on
37 N.H. Way Belola near Kinara Kata, P.S. Basistha, Guwahati, one cyclist Mr.
Rakesh was knocked down from behind by a vehicle (Truck) having Registration
No. AS-19/C-3703, which was driven in a rash and negligent manner. After the
accident, the victim was admitted to GNRC Hospital, but he succumbed to his
injury on the same day due to the accident. It was contended that immediately
after the accident, the driver of the Truck along with the vehicle fled away from
the spot but some attending persons noted down the number of the vehicle.
The accident was registered as Basistha P.S. Case No. 435/2012 under Section
279/304(A) IPC.
Page No.# 7/15
4. The claimants on the death of the victim, filed a claim application under
Section 166 of Motor Vehicle Act for compensation before the learned Tribunal
amounting to Rs. 28,07,000/- with interest @ Rs. 12% per annum from the date
of the claim till realisation.
5. The Opposite parties entered appearance and filed their written statement.
The O.P. No.1, Bajaj Allianz, General Insurance Co. Ltd. took the usual plea and
denied the pleadings of the claimants stating that at the time of the accident,
the driver of the accident vehicle did not possessed valid driving licence. O.P.
Nos. 2 & 3 being the owner and the driver of the accident vehicle No. AS-19-
C/3703 respectively, in their written statement, denied that the accident took
place due to rash and negligent driving and claimed that at the time of the
accident, the vehicle was duly insured with the Bajaj Allianz, General Insurance
Co. Ltd. vide policy No.OG-122405-1803-00002468 which was valid upto
19.08.2012. The O.P No.3 also claimed to possessed a valid driving licence vide
D/L No.3051/BNG/Proff valid upto 12.03.2015 issued by DTO, Bangaigaon.
6. From the pleadings of the parties, the learned Tribunal framed the
following issues :
i) Whether Motor Vehicle Accident took place on
07.05.2012 as alleged, and if so, whether vehicle No.
AS-19/C-3703 was involved in the said accident ?
ii) Whether the accident in question took place due to rash
and negligent driving of the driver of the said accident?
iii) Whether death of Rakesh @ Rajesh Mishra was caused
in the accident question due to use of the vehicle No.AS-19/C-
Page No.# 8/15
3703?
iv) Whether the claimant is entitled to get compensation for
the death of deceased Rakesh @ Rajesh Mishra, if so, to what
extent and by whom it should be paid?
v)
7. The claimant No.1 examined herself PW No.1 & PW No.2 appeared as a
eyewitness. DW No.1 appeared on behalf of the Opposite parties. The learned
Tribunal after hearing both the parties and after analyzing the evidence adduce
by both the parties, decided the issues in favour of the claimants, finding that
the motor accident took place on 07.05.2012 due to the rash and negligent
driving of the driver of the vehicle, who was having a valid driving licence and
that the death of the deceased victim Rakesh @ Rajesh Mishra was due to the
accident.
8. The learned Tribunal after considering the material evidence exhibited,
held that the deceased was of 35 years at the time of the accident. The
claimants stated that the monthly income of the deceased was Rs.15,000/- p.m,
however, since no documents was produced to prove the same , the learned
Tribunal took the notional income of the deceased to be Rs.6,000/- p.m. The
learned Tribunal also found that the deceased was survived by his wife, parent
and 2 (two) minor children hence, ¼ of the income was deducted. From the
above findings, the quantum of the award/compensation was calculated as
under:
The commutation of compensation is worked out as
Page No.# 9/15
Sl.No. HEADS Amount awarded
1. Monthly income of the deceased (A) Rs. 6,000/-
2. Add 40% Future prospect (B) Rs. 2,400/-
3. ¼ towards personal expenses ( C) Rs. 2,100/-
4. Monthly loss of dependency [A+B-C]= (D) Rs. 6,300/-
5. Annual loss of dependency (Dx12=(E) Rs. 75,600/-
6. Multiplier'16' (age group 31-35)= (F) -
7. Total loss of dependency (FxE)=(G) Rs.12,09,600/-
8. Loss of estate (H) Rs. 15,000/-
9 Loss of consortium (I) Rs. 40,000/-
10. Compensation towards funeral expenses (J) Rs. 15,000/-
TOTAL COMPENSATION (G+H+I+J=K) Rs.12,79,600/-
9. The learned Tribunal also found that the accident vehicle was
validly insured with the Insurance Company and all the documents relating to
the Truck was found valid. Hence, the O.P. No.1/Insurance Company being
insurer of the Truck was held liable to indemnify insured.
10. The learned Tribunal thus, directed the Insurance Company to pay the
compensation amount to Rs.12,79,600/- to the claimants along with interest 6%
per annum from the date of filing the claimed petition till its realisation. Out of
the awarded amount Rs.2,00,000/- be kept in fixed deposit account in a
Nationalized Bank in the name of claimant No.5 (daughter) till she attains
Page No.# 10/15
majority, Rs.1,50,000/- each to be paid to the claimant No.2 (father), 3
(mother) and 4 (son) and the balance amount to the claimant No.1 (wife of the
deceased).
11. Aggrieved to the said Judgment & Award of the learned Tribunal, the
appellant had filed their appeal.
12. Mr. A. Bhattacharyya, learned counsel for the appellant submits that the
Judgment & Order of the learned Tribunal is liable to be set aside on the
following grounds:
The learned Tribunal did not consider the relevant facts and materials
wherein, the offending vehicle/accident vehicle was not having the required
permit at the time when the accident had occurred. The learned counsel
submits that the evidence of DW-1, who had stated that at the time of the
accident, the Truck did not possessed valid permit and had produced an Ext. - C
which is the RTI reply where 'nil' was written against the permit. The learned
counsel thus submits that since the Truck was plying without permit, the
Insurance Company is not liable to pay the compensation amount but it is the
owner who is liable and such circumstance.
In support of his submission by the learned counsel for the appellant has
relied on the decision of the Apex Court in Amrit Paul Singh & Anr. Vs. TATA
AIG General Insurance Company Ltd. & Ors. Reported in (2018) 7 SCC
558 para 24.
13. The learned counsel further submits that the accident had occurred on
07.05.2012 but the FIR was filed much later on 29.06.2012 which was nearly 2
(two) months after the alleged accident without any explanation. Such delay
Page No.# 11/15
creates a reasonable doubt regarding the involvement of the alleged vehicle
bearing Registration No. AS-19-C/3703 (Truck), which is said to be seized on
11.11.2012, after expiry of more than 6 (six) months. It is seen that the said
vehicle was produced to the Basistha, P.S. without the O.P. No.3, who is the
alleged driver of the vehicle, this creates doubt whether the said vehicle was
actually involved in the accident. There are also inconsistencies in the
statement of P.W. No.2, who in his cross-examination stated that he informed
the police regarding the accident, but as per the extract copy of the GD Entry
No.276 dated 07.05.2012, which reveals that at about 8:10 P.M, A. Ali, the on
duty Constable at Basistha Chariali, informed the Basistha Police Station
regarding the alleged accident. The alleged eye witness was also not made a
witness in the charge sheet filed by the police. As such, the version of P.W.
No.2, regarding the accident vehicle is not believable.
14. Mr. M. Khan, learned counsel for the respondent Nos. 1, 2, 4 & 5 on the
other hand submits that with regard to the delay in filing the FIR when the
accident occurred on 07.05.2012, is because the deceased Rakesh @ Rajesh
Mishra had died in the accident and his family members were preoccupied with
the death of the deceased and had to take care of many matters while they
were in bereavement. For the above reasons, they could not filed the FIR
immediately, however, the record clearly shows that GD Entry was made on the
same day and therefore, there is no doubt that the accident occurred on
07.05.2012. That the charge-sheet exhibited as Ext-5 against the driver of the
offending vehicle(Truck) shows that there is prima facie evidence of rash and
negligent driving.
15. The learned counsel for the respondents submitted that with regards to
Page No.# 12/15
the permit, the claimant PW1 has exhibited Ext.-7 which is the documents
issued from the Office of District Transport Officer Registration & Licence),
Kamrup, Betkuchi, Ghy-34 issued by the M.V.I., which clearly shows at Sl.No.7
that the vehicle bearing Registration No.AS19-C-3703 was having permit
No.1882/11 valid up to 05.09.2013 which was the MVI report issued by S.T.A.,
Assam, This Ext.-7 when was exhibited by the claimants was not disputed
during cross examination before the learned Trial court. The seizure list in the
charge-sheet also shows the seizure of the permit.
16. The learned counsel submits that the Insurance Company has not been
able to disprove the validity of the permit No.1882/11 valid upto 05.01.2013 and
that the RTI reply exhibited as Ext.-C, is not sufficient to disprove the valid
permit No.1882/11.The learned counsel submitted that the claimants have
established their case on exhibiting exhibit Ext- 7 and the claimants are not
required to prove their case beyond reasonable doubt but on the principles of
preponderance of probability.
17. In support of his submission, the learned counsel has relied the decision of
the Apex Court in Bimla Devi and Ors. Vs. Himachal Road Transport
Corporation & Ors. reported in (2009) 13 SCC 530 para 13-15 and Anita
Sharma & Ors. Vs. The New India Assurace Co. Ltd. & Anr. in Civil
Appeal Nos.4010-4011 of 2020 paras 18, 19 & 20.
18. I have heard the submissions made by the learned counsels for both the
parties and have also perused the documents on record.
19. This court finds that since the GD Entry was made on the same day of the
accident on 07.05.2012, there is no reason to doubt that the accident occurred
Page No.# 13/15
on 07.05.2012. This court is also of the considered view that the explanation
given for the delay in filing the FIR, which was due to the death of the victim
Rakesh @ Rajesh Mishra, wherein the bereaved claimants had be take care of
other matters in connection with the death of the deceased victim, is found to
be reasonable and sustainable.
20. This court also finds that there is no evidence to show that the driver of
the accident vehicle was not having a valid driving licence and therefore it can
be held that the driver was having a valid driving licence at the time of the
accident which was reflected in the seizure list Ext-4. PW No.2 who is the eye
witness, had also clearly stated that the accident occurred on 07.05.2012 at
about 8:10 P.M, was due to the rash and negligent driving of the vehicle(Truck)
having Registration No. AS-19/C-3703, by the driver, and knocked down one
cyclist, Mr. Rakesh from behind. The charge-sheet filed against the Driver of the
vehicle for rash and negligent driving supports the evidence of the eye witness.
Thus, this court finds no reason to doubt that the accident was caused due to
the rash and negligent driving of the offending vehicle.
21. Regarding whether a valid permit or not, it is seen that DW1 in his
evidence has exhibited as Ext. C which is the RTI reply where the Permit is
written as NIL. However the Informing officer was not produced before the
Learned Tribunal to adduce evidence to prove the correctness of the RTI reply,
while on the other hand, the claimant PW1 has exhibited Ext.-7 which is the
documents issued from the Office of District Transport Officer Registration &
Licence), Kamrup, Betkuchi, Ghy -34 issued by the M.V.I., which clearly shows at
Sl.No.7 that the vehicle bearing Registration No.AS19-C-3703 was having permit
No.1882/11 valid up to 05.09.2013. The learned Tribunal had also observed that
Page No.# 14/15
the Opposite party No.1 and 2 had also annexed the permit in their written
statement. The seizure memo which forms a part of the charge sheet and
exhibited as Ext 4 also shows that one permit of vehicle AS-19-2013 was seized.
For the above reasons this court finds that the claim of the appellant that the
offending vehicle (truck) registration no. AS-19-2013 was not having a valid
permit, unsustainable.
The Apex court in in Bimla Devi and Ors. Vs. Himachal Road
Transport Corporation & Ors. (supra) reiterated in Anita Sharma & Ors.
Vs. The New India Assurace Co. Ltd 21. (supra) held that the claimants
have to establish their case on preponderance of probability and that standard
of proof beyond reasonable doubt is not required.
22. In view of the above discussions, this court is of the considered view that
no sufficient grounds have been made out to interfere with the Judgment &
Order dated 17.07.2019 passed in MAC Cases No.115/2013 by the learned
Member, Motor Accident Claims Tribunal, Bongaigaon wherein, the Insurance
Company was directed to pay the compensation amount to Rs.12,79,600/- to
the claimants along with interest 6% per annum from the date of filing the
claimed petition till its realization. Out of the awarded amount Rs.2,00,000/-
be kept in fixed deposit account in a Nationalized Bank in the name of claimant
No.5 (daughter) till she attains majority, Rs.1,50,000/- each to be paid to the
claimant No.2 (father), 3 (mother) and 4 (son) and the balance amount to the
claimant No.1 (wife of the deceased).
23. It is seen that 50% of the awarded amount i.e. Rs.6,39,800/- was
deposited in the account of Registrar General, Gauhati High Court, Guwahati
and released in favour of the claimants in terms of this court's order dated
Page No.# 15/15
05.09.2022 in I.A( C ) 2458/2022. The remaining 50% of the award amount
with interest is to be deposited before the learned Member, Motor Accident
Claims Tribunal, Bongaigaon within 4(four) months from the date of this order.
24. The appellant Insurance Company is also allowed to withdraw the statutory
amount deposited with interest, if any.
25. Accordingly, MAC. App./518/2022 stands dismissed and disposed of.
26. LCR to be returned.
JUDGE
Comparing Assistant
