MINA BORAH vs CHITRALEKHA BORA and ORS

1)Â Heard Mr. K. Bhattacharjee, the learned counsel for the appellant as well as Mr. S.K. Goswami, the learned counsel appearing for the

respondent No. 3. None appears on call for the respondents No. 1 and 2 although notices have been duly served.

2) This appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “MV Actâ€) is preferred against the judgment and

order dated 20.06.2007, passed by the learned Member, Motor Accident Claims Tribunal, Sonitpur, Tezpur in MAC Case No. 4/2004, thereby

dismissing the claim petition filed by the appellant.

3) The case projected in the claim petition was that Shri Putul Borah of village Gosaichuk, under Sootea P.S. was travelling in bus bearing registration

No. AS-12-A-5617 from Nagsankar along with other co-passengers for going to Bharali Namghar situated at Hatbor on 01.03.2001. At about 10.30

AM, the said bus met with an accident hat Supuha Satra and many passengers including Shri Putul Borah had sustained grievous injuries at various

parts of the body including his chest. It was alleged that the bus was driven at a high speed and in rash and negligent manner. The said injured had

availed treatment from various doctors, but ultimately succumbed to his injuries on 14.06.2002 at his own residence. A sum of Rs.3,00,000/- was

claimed as compensation.

4) The respondent No. 3 i.e. the insurer had contested the claim by filing written statement. It was denied that the deceased was a passenger in the

offending vehicle at the time of the accident, as such, there was no question of sustaining any injury. Moreover, the onus of proving the claim was put

on the appellant.

5) On the basis of the pleadings, the learned Tribunal framed the following issues for adjudication:

(i)Â Whether the alleged accident took place due to rash and negligent driving by the driver of the bus NO. AS-12(A) 5617 and whether the

deceased Putual Bora was a passenger of the said bus at the time of accident on 01.03.2001?

(ii)Â Whether the claimant is entitled to any compensation as prayed for, and if yes, from whom and to what extent?

6) The appellant had examined three witnesses including herself as CW-1. One Prasanta Mech, co-villager who was also co-passenger in the said bus

was examined as CW-2 and a doctor was examined as CW-3, and various documents were exhibited.

7) In respect of issue No. 1, the learned Tribunal discussed the evidence of all the three witnesses examined by the appellant. However, the evidence

of the doctor (CW-3) was discarded because he had examined the deceased after about nine months from the accident and by his evidence, the cause

of death could not be connected with any injuries sustained in the alleged accident. The evidence of the CW-1 and CW-2 was discarded on the ground

that although the FIR (Ext.1) disclosed about the accident involving the offending bus, but there is no mention that the deceased was travelling in the

said bus. The learned Tribunal recorded that there was no police record to prove that the deceased was one of the injured in the said accident, and on

the basis of Ext.2(1) to Ext.2(30), it was held that not a single prescription could show that the deceased was rendered any treatment on the date of

accident on 01.03.2001 or on the following date and the learned Tribunal had held that all the prescriptions related to a later period of time and

therefore, the learned Tribunal had disbelieved the evidence on the ground that the injured cannot wait for such a long time to have its treatment.

Hence, on the ground that there was no evidence to hold that the deceased was a passenger in the said offending bus, the issue No. 1 was answered

in the negative. In respect of issue No. 2, it was held that the appellant was not entitled to any relief on recording of finding that there was no proof

that the husband of the appellant was involved in the accident and the injury suffered had caused his death at a later date.Â

8)Â The learned counsel for the appellant submits that the three witnesses examined by the appellant had duly proved the occurrence of the accident

as well as the injury sustained by the husband of the appellant. It is also submitted that that respondent No. 2 did not lead any evidence of rebuttal to

disprove that the deceased was not travelling in the offending vehicle. By referring to the various prescription in Ext.2(1) to Ext.2(30), it is submitted

that the deceased was availing continuous treatment since the time of the accident and that the treatment was consistent with injury received by the

deceased in his chest. It is submitted that after continuing his treatment for more than a year, the deceased expired on 14.06.2002, which proved by

the death certificate (Ext.4). It is submitted that except for offering some suggestions to the witnesses, the evidence of CW-1 and CW-2 could not be

dislodged that the deceased was not the co-passenger in the offending vehicle. Therefore, it is submitted that the appellant was entitled to the

compensation as claimed.

9) The learned counsel for the respondent No. 3 has submitted that in this case there was no accident information report by the concerned police

indicating that the deceased was one of the passengers of the offending bus. It is also submitted that the appellant could not prove that the deceased

was injured in the said bus accident because the accident occurred on 01.03.2001 at 10.30 AM and there is no prescription showing that the deceased

had availed any treatment on the date of the accident. Moreover, it is submitted that there is no document on record which could link the proximate

cause of death of the deceased on 14.06.2002 with the accident which had occurred on 01.03.2001. Hence, the learned counsel for the respondent

No. 1 has supported impugned judgment and order.

10) On examining the evidence of the doctor (CW-3), it is seen that he had deposed that the deceased was examined by him on 29.12.2001 and he

was under his treatment till 29.05.2002. He had not stated that the deceased had suffered chest injury at the accident which occurred on 01.03.2001.

As per the evidence of CW-3, he had advised the patient for CT scan of the thorax. However, there is no evidence to show that the deceased had got

himself examined for injury sustained in the thorax.

11)Â It is also seen that there is no documentary evidence to show that the deceased or the CW-2 were co-passengers in the offending vehicle. In

the absence of any police investigation report showing that the deceased or the CW-2 were also the passengers of the offending vehicle at the time of

the accident, this Court is unable to find any fault with the finding of fact recorded by the learned Tribunal on issue No. 1. A perusal of the certified

copy of the FIR (Ext.1), it is seen that in the FIR it was mentioned that as a result of the accident 35 numbers of occupants received simple and

grievous injuries and that the bus was badly damaged and that the driver was driving the vehicle in a rash and negligent manner and after the

occurrence he had fled away. Therefore, in the opinion of this Court, the appellant could have produced a certificate from the concerned police to

show that the deceased was one of the injured in the said accident. Moreover, having seen that there is no medical certificate to connect the cause of

death with the accident which was suffered by the husband of the appellant on 01.03.2001, the finding of facts on issue No. 1, as recorded by the

learned Tribunal cannot be faulted with.

12) Accordingly, having appreciated the evidence on record, this Court is of the considered opinion that the appellant has not been able to demonstrate

and prove that the husband of the appellant was a passenger in the offending bus or that he had suffered any injury in the accident on 01.03.2001 and

that the appellant has also not been able to prove that the death of the husband of the appellant which occurred on 14.06.2002 was a result of the

injury sustained in the accident on 01.03.2001.

13) Accordingly, the only point of determination which arise in this appeal is-Whether the impugned judgment and order passed by the learned Tribunal

is sustainable or not and the said point of determination is answered in the negative and against the appellant by holding that the judgment and order

under challenge does not warrant any interference by this Court. Hence, the appeal stands dismissed. Resultantly, the judgment and order dated

20.06.2007, passed by the learned Member, Motor Accident Claims Tribunal, Sonitpur, Tezpur in MAC Case No. 4/2004 is upheld.

14)Â The parties are left to bear their own cost.

15)Â Let the LCR be returned forthwith.