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2009 DIGILAW 739 (CAL)

Chhalana Dam v. New India Assurance Co/Ltd.

2009-09-15

BHASKAR BHATTACHARYA, PRASENJIT MANDAL

body2009
Judgment : BHATTACHARYA AND MANDAL, JJ (1.) This appeal is at the instance of the claimants in a proceeding under section 140 of the Motor Vehicles Act and is directed against an award dated 2.9.2006 passed by die Motor Accidents Claims Tribunal, Fast Track, First Court, Cooch Behar in M.A.C. Case No. 129 of 2004 thereby rejecting the application on twofold grounds; first, for nonproduction of post-mortem report and secondly, for non-production of the photocopy of the insurance certificate. (2.) Being dissatisfied, the claimants have come up with the present appeal. (3.) After healing Mr. Rahaman, learned advocate appearing on behalf of the appellants and Mr. Das, the learned advocate appearing on behalf of the insurance company, we find that it has been established from evidence on record that the victim met with the accident in the month of January 2003 and thereafter, was treated in three different hospitals and ultimately at his residence under the treatment of PW 2, a doctor, and died in the month of August 2003. The doctor certified that the death occurred due to the accident. (4.) It has also been established from evidence that after the accident the victim was in coma and he never regained senses. No suggestion was given by the insurance company controverting the assertion of the widow of the victim. (5.) As it appears from rules 329 and 330 of the West Bengal Motor Vehicles Rules, in order to maintain an application under section 140 of the Act, the claimant is required to submit the documents, referred to therein. It is not necessary that the postmortem report is a must. Even the death certificate given by a doctor is sufficient for the purpose of maintaining an application under section 140 of the Act. (6.) Therefore, we do not find any justification of rejecting the application on the ground of not filing the post-mortem report, when from the materials on record, it has been established that the victim met with the accident and ultimately died without regaining senses. (7.) We, however, find substance in the contention of Mr. Das, the learned advocate appearing on behalf of the insurance company that the other formalities were required to be complied with, as prescribed in rule 330 of the Rules. (7.) We, however, find substance in the contention of Mr. Das, the learned advocate appearing on behalf of the insurance company that the other formalities were required to be complied with, as prescribed in rule 330 of the Rules. (8.) In such view of the matter, we remand the matter to the learned Tribunal below with an opportunity given to the claimants to comply with the requirement of rule 330 of (he said Rules. If those documents are produced within four months from the date of communication of this order to the learned Tribunal below, the learned Tribunal below will consider the case afresh on the basis of those materials as well as evidence adduced by the parties. (9.) We find substance in the contention of Mr. Das that the claimants would not have suffered if the requirement of sections 158 (1) and 158 (6) of the Motor Vehicles Act was complied with. It should be complied with by the police authorities, the owner of the vehicle as well as the insurance company. For the inaction on the part of the police authorities and the owner of the vehicle, the victim should not suffer. (10.) We, thus, direct the Director General of Police, West Bengal and the Commissioner of Police, Kolkata to see that the requirements of sections 158 (1) and 158 (6) of the Motor Vehicles Act are complied with in each and every case of accident. It will not be out of place to mention here that the Apex Court in the case of General Insurance Council v. State of Andhra Pradesh, 2007 ACJ 2006 (SC), has already issued mandamus upon all the State Governments to strictly comply with the requirement of sections 158 (1) and 158 (6) of the said Act. (11.) With the aforesaid direction, this appeal is thus disposed of. (12.) Let a copy of this order be sent.