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2009 DIGILAW 292 (GAU)

Dilip Gohain v. S. Bhupinder Singh

2009-05-05

P.K.MUSAHARY

body2009
JUDGMENT P.K. Musahary, J. 1. Heard Mr. J. Singh, learned senior counsel assisted by Ms. Bhuyan, learned Counsel for the appellant and Mr. S. Dutta learned Counsel for the respondent No. 1, Heard also Mr. A. Haniffa for respondent No. 2. 2. These appeals are directed against a common judgment and order, dated 9.6.2006 passed in MAC case No. 120/2003 and 121/2003, by the Member of MACT, Golaghat, Assam, and as such they are taken up together for hearing and disposal. 3. The case of the appellants/claimants is that on 1.2.2001 at about 5 p.m., while they were traveling in a truck bearing registration No. AS 25-A/4111 from the brickfield of the opposite party No. 1/respondent No. 1, met with an accident on the way at Dorea Tea Estate. The claimants who were travelling in the same vehicle were labourer and attendant. The appellants/claimants initially approached the Commissioner Workmen's Compensation, Golaghat, by filing W.C. case No. 17/2001 and W.C. case No. 11/2001. The claimants withdrew the aforesaid cases with liberty granted by the Commissioner to file a compensation case in proper forum. Accordingly, the claimants filed the aforesaid MAC cases before the Member, Motor Accident Claims Tribunal at Golaghat. The opposite party No. 1/respondent No. 1 did not file written statements, however, the opposite party No. 2, Oriental Insurance Company Limited, Guwaharti, filed written statements denying the liability. On the basis of the pleadings made by the claimants and opposite party No. 2, the learned Tribunal famed the following issues: (i) Whether the offending vehicle was met with an accident on 1.2.2001 and the claimants being the workmen of the opposite party No. 1, the owner traveled in the said truck and sustained injury? (ii) Whether the claimants are entitled to get the compensation? If so to what extent and payable by whom? 4. On the basis of evidence adduced by the parties and also the documents produced and exhibited, the learned Tribunal passed the impugned judgment awarding no compensation to the appellants. Aggrieved by the aforesaid judgment the appellants have filed the present appeals. 5. Mr. J. Singh learned senior counsel submits that the learned Tribunal came to an erroneous finding that the appellants/claimants are not workmen of the offending truck. Aggrieved by the aforesaid judgment the appellants have filed the present appeals. 5. Mr. J. Singh learned senior counsel submits that the learned Tribunal came to an erroneous finding that the appellants/claimants are not workmen of the offending truck. He draws the attention of this Court to averments made in para 1 of the affidavit in evidence filed by Shri Dilip Gohain, claimant in MAC Case No. 121/03 to the effect that he is an attendant of the truck. In the MAC Case No. 120/03 also the claimant Md. Ibrahim Ali stated in his evidence in affidavit that he is a loading and unloading labourer. The other finding that the claimants did not travel in the offending vehicle is also contrary to the accident report (Exhibit-1) which clearly shows that both aforesaid claimants travelled in the said vehicle. The last finding of the learned Tribunal is also perverse inasmuch as the fact of the accident has not been denied by the opposite parties, more so, on the face of the accident report (exhibit-1) which was submitted by the in-charge of Khumtai police Out Post. Moreover, the claimants produced documents relating to treatment and expenditure incurred by them, which have been exhibited as exhibit 2 to 14 in respect of MAC case No. 121/03. Similar, documents were filed and exhibited by the claimants in MAC case No. 121/03, which includes prescription, injury report, cash Memos and receipts. According, to Mr. J. Singh, learned Tribunal did not consider the aforesaid documents produced and exhibited by the claimants and therefore, the findings of the Tribunal are perverse and the impugned judgment is therefore, liable to be set aside. 6. Mr. Dutta, learned Counsel for the respondent No. 2, on the other hand submits that in respect of claimant in MAC case No. 121/03, he made statement in the affidavit in evidence that he is a Moharer of the brickfield and therefore he is a workmen under the OP No. 1. Referring to Exhibit A, Insurance Policy, Mr. Das submits that the vehicle is not permitted to carry passengers or any labourer and therefore, the Insurance Company is liable to unidentified indemnity the claimants/appellants. At the time of hearing two affidavits have been filed by respondent No. 1, the owner of the offending vehicle. Referring to Exhibit A, Insurance Policy, Mr. Das submits that the vehicle is not permitted to carry passengers or any labourer and therefore, the Insurance Company is liable to unidentified indemnity the claimants/appellants. At the time of hearing two affidavits have been filed by respondent No. 1, the owner of the offending vehicle. In the said affidavits it is stated that the appellant Shri Dilip Gohain, claimant in MAC case No. 120/03 was working as a Moharer at his brickfield, while the other claimant Ibrahim Ali in MAC case No. 121/03 was working as labourer of the truck engaged in the brickfield. 7. Having heard the learned Counsel for the parties and also on perusal of the impugned judgment, it is found that the Tribunal while deciding the question as to whether the claimants are workmen of the owner of the offending truck and whether they were traveling in the said vehicle at the time of the accident have not been taken into consideration on the basis of materials available on record. It is also found that the learned Tribunal did not deal with the important aspects namely, as to whether the labourers/employees traveling in the offending vehicle are entitled to compensation. In my considered view, the learned Tribunal is bound to deal with the aforesaid issues and adjudicate upon. 8. The result of the aforesaid discussion would lead to hold that the impugned judgments and orders dated 9.6.2006 are liable to be set aside and accordingly the same are set aside and quashed. Both the matters are remanded back to the Member, MACT Golaghat, for fresh adjudication and disposal in accordance with law. 9. Appeal stand disposed of. 10. Send down the records forthwith.