LAWS(GAU)-2014-3-51

BEAUTY NANDI Vs. JILLUL HOQUE

Decided On March 20, 2014
Beauty Nandi Appellant
V/S
Jillul Hoque Respondents

JUDGEMENT

(1.) By filing this appeal under Section 173 of the Motors Vehicle Act, 1988, claimants have challenged the award dated 18.08.2004 passed by the learned Adhoc Additional District Judge, Darang, who is the Member of Motor Accident Claims Tribunal, Darang, Mangaldoi. The award was passed in MAC No. 117 of 1998 dismissing the claim case against the owner and the driver of the alleged offending vehicle bearing No. AS-13-0053. The brief facts of the case are stated below. On 19.10.1998 at about 7 P.M. the deceased, namely, Badal Nandi, was going towards Kharupetia in an Auto-van. It is disclosed in the evidence of the claimants that the victim was a motor mechanic and having repaired the Auto-van in question he was moving by the same van. The Auto-van was going towards Kharupetia when a Tractor bearing No. AS-13-0053 was coming from opposite direction. There was a collision between the plough part of the Tractor and the Auto-van as a result of which the victim died on the spot as the plough hit his head. The victim was declared dead after he was taken to hospital. The claimant, Smti Beauty Nandi (wife of the victim) lodged a claim of Rs. 5,00,000/- as against the owner of the Tractor as well as Auto-van. But in course of the proceeding, the claimant entered into a compromise with the owner/driver of the auto van on receipt of Rs. 50,000/- and the learned Tribunal in its order dated 18.08.2004 absolved the Auto-van from any liability. In view of the compromise arrived at between the parties, the proceeding was taken up against the Tractor bearing No. AS-13-0053. The learned Tribunal framed as many as 4 issues in this case. These are quoted below:

(2.) The claimant examined as many as 3 witnesses, namely, claimant No. 1 Beauty Nandi (P.W.1), one Ranjit Ghosh (PW.2) and one Tinku Saha (P.W.3). The opposite parties on the other hand examined as many as 4 witnesses, namely, Pallab Kumar Bagchi (DW1), who was the owner of the offending Auto-van bearing No. AS.01 -D/3 806 allegedly involved in the accident; Md. Jillul Hoque (DW2) the owner of the Tractor, one Mainul Hoque (DW3) and Md. Ali Hussain (DW4). P.W.I Beauty Nandi, who is the widow of the deceased Badal Nandi, claimed that the age of the deceased was 35 years at the time of the accident and he was a motor mechanic. He had a garage and was earning Rs. 5,000/-P.M. He was survived by 2 sons and 1 daughter apart from the widow and all of them were minors at that time. She proved post-mortem report as Exhibit-1, Police reports as Exhibit-2 & 3 and a certificate from Kharupetia Town Committee as Exhibit-4. Incourse of cross-examination, she stated that she does not have any proof to establish that the monthly income of her husband was Rs. 5000/-P.M. She also admitted that she compromised the dispute with Sarawgi Agency on receipt of Rs. 50,000/-from them. P. W.2 Ranjit Ghosh stated that he was selling vegetables in Balugaon market at that time and having heard the accident rushed to that side and found that Auto-van accident occurred due to hit by a Tractor and the victim was lying in a pool of blood. He stated that the Auto-van was coming towards Kharupetia and the Tractor was going from Kharupetia towards Dalgaon. He stated that extended side of the Tractor hit the Auto-van resulting in the accident. He claimed to have taken the deceased to Kharupetia hospital where he was declared dead. He stated that victim was a motor mechanic and he repaired the Auto-van in question and was coming in the said Auto-van. He also stated that me victim was aged 35 years and was of sound health. On being cross-examined he stated that he reached to the place of occurrence within 10 minutes. He denied that the Auto-van was over loaded and that because of over loading of the Auto-van the accident had taken place. He also stated that he had given statement to the police. P.W.3 Tinku Saha stated that at the time of accident he was in Balugaon cross road and was loading goods in a Truck. Having heard that there was an accident, he immediately rushed to the spot and found that the Tractor had hit the Auto-van resulting in an accident and that the victim died on being hit by the plough of the Tractor. In course of cross-examination, he stated that he was at a distance but he ran to the place of accident immediately. The Auto-van involved in the accident was a goods vehicle and apart from the driver, the victim was sitting on the front seat. He stated that the plough attached to the Tractor is on the back side. He denied the suggestion that Auto-van had hit at the Tractor. Pallab Kumar Bagchi was examined as DW1 by the parties. He was the owner of the Auto-van bearing No. AS.01-D/3806. He said that he sold the vehicle to one Smti. Sushila Jain wife of Subhas Jain and submitted necessary documents in support of the said. He stated that said owner of the Auto-van had submitted her written statement admitting her title to the vehicle. He also stated that the dispute was compromised with him by the claimants on receipt of money. The owner of the tractor Jillul Haque was examined as DW2. He stated in his examination that the driver had told him about the accident and he himself did not see. He stated that driver Ali Hussain was plying the Tractor. However, he admitted that the victim Badal Nandi died in the accident where his Tractor was involved One Mainul Haque was examined as DW3 in the case who claimed to be sitting outside a hotel near the place of accident. He stated that he was talking to 2/3 friends. At that time one Auto-van over took a hand cart when the Auto-van hit at the plough part of the Tractor which on turn, hit the head of the victim. The victim was taken to the hospital where he was declared dead. He stated that there was 3 persons in the Auto-van and one wheel of the Auto was on the pucca road, whereas one wheel was beyond road. In cross-examination, he stated that Badal Nandi died on being hit by the plough of the Tractor. Md. Alii Husain (DW4) was the driver of the Tractor bearing No AS-13-0053. He stated that his Tractor was coming from Kharupetia towards Dalgaon and at that time one Auto-van was coming from the opposite direction. He said that to the right side of his Tractor there was a hand cart loaded with goods and behind the hand cart there was the Auto-van. The Auto-van came from behind and overtook the hand cart and hit at the plough of the Tractor and in the process the victim died. He stated that the Auto-van was running at high speed. In course of cross-examination, he stated that Jillul Haque was the owner of the Tractor and that the deceased would not have died if the Auto-van would not have hit the plough of Tractor.

(3.) The learned Tribunal after perusal of the evidence adduced by the parties passed impugned judgment and award dated 18.08.2004 holding that the tractor was not guilty of rash and negligent driving and it was the Auto-van which hit the rear side of the tractor resulting in the accident. Having so found the learned Tribunal dismissed claim of the appellants. Against the aforesaid judgment and award, the claimants have approached this court by filing present MAC Appeal.