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2011 DIGILAW 344 (CAL)

Rina Das Saha v. Biswajit Paul

2011-03-10

AMIT TALUKDAR, PRABHAT KUMAR DEY

body2011
JUDGMENT Talukdar, J. 1. TRAPPINGS of neither Title Suit nor a Sessions Trial is available in a Claim Petition under Section 168 of The Motor Vehicles Act, 1988 which is summary in nature. Imbibed by this sense we would be required to consider the prayer made in Appeal which was dismissed on the circumstance that there was variance between the Post Mortem Report and the name of the daughter of the Appellant who was the victim of the case. 2. IT appears that the learned Motor Accident Claims Tribunal, Islampur (Dist. Uttar Dinajpur) in MAC Case No. 94 of 2007 by its Judgment and Order under Appeal on 28.11.2008 dismissed the Claim Petition filed by the Appellants hereinabove mainly on the ground that barring the only claim of P.W.1 (the Appellant) who is not the witness to the occurrence there was no documentary proof. This has persuaded the Appellants to prefer this Appeal mainly on the ground that the Tribunal erred in dismissing the Appeal as the name of the daughter of the Appellants has been rectified subsequently by Professor Saibal Gupta, Professor and Head of the Department of Forensic Medicine Department, North Bengal Medical College and Hospital. In order to buttress this point Shri Banerjee in support of the Appeal has placed before us a bunch of papers in respect of a Review Petition by way of which he wanted to put on record the Rectification Memo sent by Professor Saibal Gupta, Professor and Head of the Department of Forensic Medicine Department, North Bengal Medical College and Hospital to the aforesaid extent. Inviting our attention to the order-sheet of the Review Petition dated 05.05.2009, Shri Banerjee submitted that he was forced to withdraw the Review Petition as he was made to understand that he would not be permitted to bring any additional documents to prove his case. 3. WE do not find that any one has appeared to contest the case on behalf of the respondent although there was notice to the aforesaid effect. 4. IN our opinion, on the basis of a plain reading of the Judgment and Order under Appeal the learned Tribunal had proceeded in a closed manner bereft of the broad view required to be taken in this type of proceedings which are not only summary in nature but have a social impact. 4. IN our opinion, on the basis of a plain reading of the Judgment and Order under Appeal the learned Tribunal had proceeded in a closed manner bereft of the broad view required to be taken in this type of proceedings which are not only summary in nature but have a social impact. Shri Banerjee has placed before us the additional papers relating to the clarification made by Professor Saibal Gupta Professor and Head of the Department of Forensic Medicine Department, North Bengal Medical College and Hospital with regard to the discrepancy in the name of the deceased daughter of the Appellants and other pertaining documents including the ground of review and the order passed thereon. These are additional materials which would have been considered by us within the ambit of additional evidence to be taken under Order 41 Rule 27 of the Code of Civil Procedure. This provision, in other words, is akin to the pari materia position of Section 391 of the Code of Criminal Procedure. We would be well within our power to construe these documents which have been produced by Shri Banerjee by way of incorporating them as additional evidence. For this purpose we must remember that Rule 346 of the West Bengal Motor Vehicles Rules, 1989 authorises the application of the provisions of the Code of Civil Procedure in respect of a claim case under the Motor Vehicles Act, 1988. There cannot be any dispute in respect of the same. However, to have a wholesome grip of the entire matter we would take a different route. Shri Banerjee has referred to the provisions of Section 168 of the Motor Vehicles Act, 1988 and submitted that the Tribunal is required to - "hold an inquiry into the claim". According to Shri Banerjee in spite of the legislative intent provided in Section 168 of the Motor Vehicles Act, 1988 the learned Tribunal simply picked out the holes in the claim case in stead of addressing itself to the actual issue involved by conducting an inquiry into the main petition. Shri Banerjee has also submitted that in view of the provisions of Section 169 while holding an inquiry, the Tribunal is required to follow a summary proceeding. We find on both these score the submission made by Shri Banerjee has much substance. Shri Banerjee has also submitted that in view of the provisions of Section 169 while holding an inquiry, the Tribunal is required to follow a summary proceeding. We find on both these score the submission made by Shri Banerjee has much substance. As found by us earlier that it is not a regular trial which the Tribunal conducts while considering a Claim Petition under Section 168 of the Motor Vehicles Act, 1988, not only the proceedings are summary in nature but the very social purpose behind the scheme of this Act practically seems to have lost its appeal before the proceeding in the Tribunal. 5. A rigid attitude on the anvil of the regular trial was adopted by the learned Tribunal in the process losing sight of the statutory provisions of either Section 168 or Section 169 of the Motor Vehicles Act. Shri Banerjee has referred to a Division Bench decision of this Court in the case of Smt. Bani Rani Das v. Manager, National Insurance Co. Ltd and Anr., reported in (2007)4 TAC 126 (Cal) to show that a mere discrepancy in the Post Mortem Report will not render the entire claim petition infructuous. We have considered the said decision and feel that the same has complete application in the fact situation of the present case. 6. THE Tribunal proceeded on the basis that the name of the deceased daughter of the Appellant was discrepant but a little care could have saved the situation. From the set of papers in page 11 it appears from Dead Body Chalan that the name of the deceased daughter of the Appellant was correctly shown as Poulami Saha. THE other documents appearing in the set of papers proceeds to illustrate the said claim. More particularly, the note sent by Professor Gupta, Professor and Head of the Department of forensic Medicine Department, North Bengal Medical College and Hospital (pg.9 of the set of papers) has completely clarified the position. In the event, this was incorporated perhaps the upward journey in Appeal would not have been necessitated. Accordingly, we set aside the order under Appeal and send the entire matter on remand before the learned Tribunal. The set of papers (pg.1 to 20) may now formed part of the record. In the event, this was incorporated perhaps the upward journey in Appeal would not have been necessitated. Accordingly, we set aside the order under Appeal and send the entire matter on remand before the learned Tribunal. The set of papers (pg.1 to 20) may now formed part of the record. Learned Tribunal would keep in mind that the incident took place some time in 14th May, 2007 and sufficient time has been spent in the meanwhile. 7. ACCORDINGLY he would dispose of the entire matter on rammed after being sent on remand within a period of twenty one (21) days by way of posting the matter in His Diary as the first item and hear it out on a regular basis and pass Judgment immediately. Furthermore, as Mr. Banerjee has submitted that the vehicle was not covered, it would be required by the Tribunal to have the presence of the owner of the said vehicle before the proceeding in accordance with steps as known to law so as to facilitate the process as directed by this Court on remand. 8. FURTHER more, since we have found that the conclusion arrived at by the Tribunal in respect of the discrepancy in the name of the deceased daughter which is otherwise and as we have kept the issue open we would also further permit the parties to adduce additional evidence or documents over and above the one already on record. Office is directed to communicate this order along with the set of papers filed by Mr. Banerjee which would form part of the record. 9. APPEAL accordingly allowed. 10. NO order as to costs. Dey, J. -I agree.