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2007 DIGILAW 463 (CAL)

Bani Rani v. Manager National insurance Co Ltd

2007-06-27

ALOK KUMAR BASU, JYOTIRMAY BHATTACHARYA

body2007
Judgment :- (1.) THIS appeal has been directed against the judgment and order of the learned Judge, Motor Accidents Claims Tribunal, Jalpaiguri passed in connection with M.A.C. Case No. 182 of 1996. (2.) ONE Bani Rani Das filed an application under section 140 of Motor Vehicles act claiming compensation to the tune of Rs. 50,000 on account of death of her son, Pranab Das, out of a motor accident which occurred on 11.3.1996 at about 9.45 a. m. involving the vehicle No. WGV 2556 and the said accident took place when the vehicle while crossing an unmanned railway level crossing at Dakshin Barupara within the P.S. Kotwali in the district of Jalpaiguri collided with the running Trivandram Express and as a result of the accident, Pranab das along with several other passengers of the vehicle died on the spot. (3.) THE respondent insurance company contested the claim application before the learned Tribunal but the owner of the vehicle, being the opposite party No. 2 of the original claim application, did not contest the claim application in spite of receipt of the notice of the same. (4.) LEARNED Judge of the Claims Tribunal after examining the claim application, evidence of the claimant and her witness and the documents, namely, copy of F.I.R. and the post-mortem report, was of the view that since there was discrepancy in the post-mortem report by not mentioning the concerned P.S. case and only the U.D. case of the concerned P.S. was mentioned relating to the accidental death of the victim, Pranab Das. It cannot be stated firmly that the victim Pranab Das died of the accident over which the concerned P.S. case was started and on such observation the learned Judge of the Claims Tribunal rejected claim application of the claimant. (5.) BEING aggrieved by and dissatisfied with the order of rejection of her claim, the claimant has preferred this appeal and in this appeal also both the insurance company and the owner of the vehicle were made respondents and notice was duly served upon both the insurance company and the owner of the vehicle. But here at the time of hearing of the appeal also, we find that the owner of the vehicle in spite of receipt of notice of the appeal did not prefer to contest the same and only the respondent insurance company is contesting this claim application. (6.) MR. But here at the time of hearing of the appeal also, we find that the owner of the vehicle in spite of receipt of notice of the appeal did not prefer to contest the same and only the respondent insurance company is contesting this claim application. (6.) MR. Banerjee, learned advocate for the appellant-claimant submits before us that the learned Judge of the Claims Tribunal was perhaps under wrong conception of law that in the post-mortem report there was no mentioning of the P.S. case and only the U.D. case was referred to but, according to Mr. Banerjee, there was nothing wrong in the post-mortem report since, on the basis of the accident the concerned P.S. started a specific case on the basis of the F.I.R. and at the same time while forwarding the dead body for holding post-mortem examination, it was the duty of the concerned P.S. to initiate a U.D. case and the general practice under Police Regulation book was that in the case diary started in connection with the specific police case the papers relating to the U.D. case, shall be merged together and the investigating officer shall use both the case diary of the specific police case and the papers of the U.D. case while submitting the final report regarding the investigation started on the basis of specific F.I.R. (7.) MR. Banerjee contends that both in the F.I.R. the name of the victim appeared and in the post-mortem report also the doctor made it clear that the selfsame person met with accident and the accident was the cause of death and naturally there was no scope for the learned Judge to hold conclusively that the victim met the accident and according to the F.I.R. the vehicle was involved in the accident. (8.) MR. Das, learned advocate appearing on behalf of the respondent insurance company has raised a legal question touching the liability of the insurance company to pay any compensation under section 140 of the Motor Vehicles Act relying on the statutory provision itself. Mr. (8.) MR. Das, learned advocate appearing on behalf of the respondent insurance company has raised a legal question touching the liability of the insurance company to pay any compensation under section 140 of the Motor Vehicles Act relying on the statutory provision itself. Mr. Das contends that from a plain reading of section 140 of the Motor Vehicles Act it is very much clear that the intention of the legislature was to saddle only the owner or owners of the vehicle or vehicles regarding payment of compensation under section 140 of the motor Vehicles Act and there is no scope to implicate the insurance company even if the vehicle was covered under a valid insurance policy at the time of the accident. Mr. K.K. Das to substantiate his point has placed before us one judgment of the Apex court in the case of National Insurance co. Ltd. v. Jethu Ram, 1998 ACJ 921 (SC)and also another decision of Calcutta High court in the case of National Insurance co. Ltd. v. Krishna Biswas, 2008 ACJ 480 (Calcutta). (9.) AFTER hearing the learned advocates for both parties and after going through the judgment of learned Tribunal impugned in this appeal, we are of the view that learned tribunal erred in law by rejecting the claim application solely on the consideration that since there was no mentioning of the P.S. case in the post-mortem report of the victim, Pranab Das, the claimant failed to substantiate her case for compensation on account of death of her son. We are of the clear view after considering the copy of the F.I.R. and the copy of the post-mortem report along with the evidence adduced by both the PWs 1 and 2 before the Tribunal that the victim Pranab Das met with accident involving the offending vehicle at the relevant date and time and this has been strengthened both from the ocular evidence as well as from the documentary evidence, namely, the F. I. R. and the post-mortem report and since the essential ingredient for substantiating a claim application under section 140 of the Motor Vehicles Act was established, learned Tribunal should not have rejected the claim of the appellant. (10.) NOW comes the question as to who would be called upon to pay the compensation amount of Rs. (10.) NOW comes the question as to who would be called upon to pay the compensation amount of Rs. 50,000 as provided in section 140 of the Motor Vehicles Act and in this regard, following the submission of Mr. Das and on careful examination of the statutory provisions of section 140 of the Motor Vehicles Act itself, we have no doubt in mind that the statute never placed any liability on the insurance company even if the vehicle is covered under valid insurance policy to pay the amount and the statute clearly placed the responsibility on the owner to pay the compensation and this legal point was further clarified both in the case of National Insurance Co. Ltd. v. Jethu Ram, 1998 ACJ 921 (SC) and national Insurance Co. Ltd. v. Krishna biswas, 2008 ACJ 480 (Calcutta). (11.) THUS, after hearing the submissions of both Mr. Banerjee and Mr. Das, we are inclined to allow this appeal and to set aside the order of the learned Tribunal impugned in this appeal. (12.) THE claim application of the claimant, bani Rani Das, is hereby allowed and the owner of the vehicle, Jyotish Sarkar, is directed to pay Rs. 50,000 to the claimant within two months from the date of communication of this order, failing which, the said owner, Jyotish Sarkar, shall be liable to pay simple interest at the rate of 8 per cent per annum to the present claimant-appellant. (13.) THE owner of the vehicle, Jyotish sarkar, is directed to deposit the amount of Rs. 50,000 and on such deposit the learned Tribunal on proper identification of the claimant before it shall disburse the amount to the claimant-appellant directly. (14.) SEND the L.C.R. along with the copy of this judgment and order forthwith for necessary action to the learned Tribunal. (15.) THERE will be no order as to costs. (16.) LET urgent xerox certified copy of this order, if applied for, be supplied to the learned advocates for both parties as early as possible. Appeal allowed.