MACApp. 1(K)/2016. Gauhati High Court

Case Number:MACApp. 1(K)/2016
Judgement Date:May 24, 2020
Court:Gauhati High Court
 
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I N THE GAUHATI HI GH COURT

(THE HI GH COURT OF ASSAM, NAGALAND, MI ZORAM & ARUNACHAL PRADESH)

KOHI MA BENCH

MAC Appeal No.1 ( K) of 2016

The United I ndia I nsurance Co. Ltd., represented by it’s Branch Manager, Dimapur, Nagaland.

Ph No. 03862228968.

………….Appellant

-Versus-

1. Shri. Sungjemtoshi,

Son of Moa Aier,

Presently residing at Lengrijan, Dimapur, District-Dimapur, Nagaland.

2. Md. Feisul Haque,

Son of Haji Huhuddin,

R/ o. Thoubal Moijeng,

Wangmataba, District-Thoubal, Manipur (Owner of vehicle No. MN-04-A-1816)

3. Md. Abdul Hashim,

S/ o. Lt. Md. Abdul Manap, R/ o. I rong Chesaba,

P.O/ P.S. Mayang,

District-I mphal, Manipur

(driver of vehicle No. MN-04-1816)

………….Respondents

-BEFORE-

HON’BLE MR.JUSTI CE S.SERTO

For the Appellant : Mr. Tayongchuba,

Mr. Pfosekho, Advs.

For the respondent No.1 : Mr. L.D. Nepolean,

Mr. Temjen Tongzuk Ao, Adv.

For the respondent No.2 : Ms. Nuksungtila,

Ms. Temjechila, Adv.

Date of hearing : 24-05-2017 and Judgment

MAC Appeal No. 1 (K) of 2016 Page 1 of 10

JUDGMENT & ORDER

(Oral)

Heard Mr. Tayongchuba, learned counsel for the appellant. Also heard Mr. L.D. Nepolean, learned counsel for the respondent No.1 and Ms. Nuksungtila, learned counsel for the respondent No.2.

2. This is an appeal filed under section 173 of Motor Vehicle Act, 1988 directed

against the judgment and order dated 03.06.2015, passed by the learned Member MACT, Dimapur in MAC Case No. 22/ 2012.

3. The brief facts of the case as submitted by the learned counsel representing

the parties is that on 17.12.2011 there was head on collision between the vehicle driven by the respondent/ claimant (a car) bearing registration No. NL-07/ F-720, and a truck belonging to respondent No.2 bearing registration No. MN-04/ A 1816 at 4th Mile, Dimapur at 7:30 P.M. Due to the accident the respondent No.1 suffered physical injuries which led to his physical disability of 66.16% . The injured persons who happened to be a lawyer by profession filed a claim petition being MAC Case No. 20/ 2012 before the learned MACT, Dimapur claiming compensation to the tune of Rs. 45,51,374/ - from both the owners of the offending truck, and the I nsurance Company (i.e. the appellant) with whom the owner of the truck had valid I nsurance Policy covering 3rd party. The case was contested both by the owner of the offending truck and the I nsurance Company-appellant in this case.

The learned Tribunal after hearing the parties framed as many as 6(six) issues and awarded Rs. 30,48,000/ -. However, the award was apportioned, between the claimant and the respondent 50/ 50 on the grounds that there was contributory negligence on the part of the respondent No.1/ claimant. The issues were framed and the conclusion drawn by the learned Tribunal are reproduced here below verbatim:- “ ISSUE No. I:

1. Whether the accident was caused due to the fault of the injured claimant? The Police report Ext-P-9 states that the accident occurred when the truck was overtaking a small car and collided with the Hyundai i 10 which was coming from the opposite direction. The MVI Report at Ext. P-10 states that the brake system in the truck B/R No. MN-04/A-1816 was not responding and the left brake pipe was found to be damaged. It is also stated that in the Hyundai Car it was found that the windshield, Bumper, Radiator, Front Grille, Front Shocker, both front doors and its assembly, Steering assembly, Side Fender, along with accessories like headlight and signal light were found damaged

MAC Appeal No. 1 (K) of 2016 Page 2 of 10

externally. The I.O. of the case has deposed that in a collision case there may be contributory negligence on the part of both drivers of the colliding vehicles. He also stated that he found that there was contributory negligence by the drivers of both the truck and the Hyundai Car. He also deposed that as per his observation the Hyundai i 10 was travelling with such speed that it had taken more damage than the truck. It is therefore ascertained from the deposition of the PW-2 and also the MVI Report that there was contributory negligence on the part of the claimant as well as the driver of the truck. As such I hold both the claimant and the truck equally was responsible and contributory is 50/50 resulting accident.

ISSUE No. ii and iii ;

ii. Whether the claimant in an employee of RTS Legal Consultancy, D.C. Court Complex, Dimapur, Nagaland? And

iii. Whether the claimant was earning Rs. 20,000/- per month?

The claimed has deposed that he is an Advocate and an employee of R.T.S Legal Consultancy, D.C.Court Complex, Dimapur. He stated that as an Advocate he has no fixed income on monthly basis but used to earn a minimum of Rs.20,000/-p.m. an affidavit has been sworn by the claimant to this effect. It is not disputed that an Advocate does not have a fixed monthly income. It depends on the number of cases one takes up in a month and for any practicing advocate in a place like Dimapur normal income of Rs.20,000/- p.m is found to be a reasonable income for an Advocate.

ISSUE No. iv:

iv. Whether the...

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