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2013 DIGILAW 853 (CAL)

SUNANDYA BALA @ KAUSLYA SARKAR v. HARI SINGH

2013-11-26

R.K.BAG, TAPAN KUMAR DUTT

body2013
JUDGMENT R.K. Bag, J : This appeal arises out of a judgment dated 23rd July, 2007 passed by learned Judge of the 1st Motor Accident Claim Tribunal, Barasat, in M.A.C.C. No. 569 of 1987, whereby the learned Judge of the Tribunal dismissed the claim ex parte. 2. Brief fact of the case made out by the appellants before the Tribunal is that on 05.04.1981 one Dilip Sarkar died of accident due to rash and negligent driving of the lorry bearing no. BRZ/ 9741. The present appellants claiming to be the legal heirs and representatives of the deceased Dilip Sarkar claimed compensation of Rs.2,51,000/- by impleading the owner of the offending lorry and the Insurance Company as the opposite parties in the claim petition. The respondent/insurance company initially contested the claim by filing written objection, but ultimately did not contest the proceedings before the Tribunal. Being aggrieved by and dissatisfied with the judgment of the Tribunal, the appellants/claimants have preferred this appeal on the ground that the learned Tribunal has failed to consider the identity of the deceased and the identity of the claimants though sufficient evidence in this regard has been adduced before the Tribunal. 3. It appears from the judgment of the Tribunal that doubt cropped up in the mind of the learned judge of the Tribunal with regard to the identity of the deceased and the identity of the claimants as sufficient evidence was not adduced before the Tribunal to come to the conclusion in this regard. It has been specifically pointed out by the learned judge of the Tribunal that he could not tally the name of the father of the deceased appearing on the claim petition with any document for non production of the identity card of the mother of the deceased. 4. The learned Advocate for the appellants could not explain the discrepancy in the address of the deceased appearing in the driving licence and in the claim petition. The learned Advocate for the appellants submits that the appellants/claimants are willing to adduce evidence to establish the identity of the deceased and the identity of the claimants. 5. The learned Advocate for the respondent/insurance company submits that he has serious reservation about the identity of the deceased and the identity of the claimants on the basis of the evidence which is on record. 6. 5. The learned Advocate for the respondent/insurance company submits that he has serious reservation about the identity of the deceased and the identity of the claimants on the basis of the evidence which is on record. 6. In view of the submissions made by the learned Advocates for the respective parties and on consideration of the evidence which is on record, this Court is of the opinion that the instant case should be remanded to the Tribunal for giving opportunity to both the parties to adduce further evidence with regard to the identity of the deceased and the identity of the claimants including any explanation with regard to the address of the claimants for the purpose of the claim. It is relevant to point out that this Court has not gone into the merit of the case while making observations and the learned Judge of the Tribunal is at liberty to form opinion on the basis of the evidence already on record and also on the basis of the evidence which will be adduced before the Tribunal after remand of the case. 7. It is further relevant to point that service of notice on the owner of the offending vehicle is dispensed with at the risk of the claimants as prayed for by the learned Advocate for the appellants/claimants for fresh adjudication of the case after remand, as the said learned Advocate submits that inspite of notice the owner of the offending vehicle did not appear before the Tribunal and also did not contest the claim application. 8. It is hereby ordered that the judgment passed by the learned Tribunal in M.A.C.C. No. 569 of 1987 is hereby set aside. It is also ordered that the case is remanded to the Tribunal for giving opportunity to both parties to adduce evidence in the light of the observations made in the body of the judgment. The Tribunal is directed to decide the case within a period of three months from the date of receiving the record of the case. 9. The appeal is, thus, disposed of. 10. Let a copy of this judgment along with the lower court records be sent down to the Tribunal below forthwith. 11. Urgent xerox certified copy of this judgment, if applied for, shall be given to the parties as expeditiously as possible after compliance with all necessary formalities. T.K. Dutt, J.: I agree.