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Gauhati High Court · body

2014 DIGILAW 31 (GAU)

A. B. C. India Ltd. v. Commandant

2014-01-09

INDIRA SHAH

body2014
ORDER 1. This appeal has arisen out of the common judgment dated 29.8.2002 whereby three claim cases, namely MAC Case No. 81/89, 79/89 and 80/89 have been disposed of by the learned Member, Motor Accident Claims Tribunal, Dhubri. 2. Heard Mr. B.N. Sarma, learned counsel for the appellant and Mr. S. Dutta and Mr. S. Chakraborty, learned counsel appearing on behalf of the respondent. 3. The appellant in MAC No. 81/89 filed application seeking compensation for damage of his vehicle AXA -9268 (trailor) and in MAC 80/89 and 79/89 claimed compensation on account of injuries sustained by the drivers of his vehicle. 4. The material facts in brief are that on 4.4.1989 Sri Sankar Roy driver of vehicle No. AXA- 9268 (trailor) was driving the vehicle. Another driver Mahendra Chandra Das was in the vehicle. The accident occurred when vehicle No. MLK -5683 belonging to commandant 103 B.S.F. driven by its driver rashly & negligently with tremendous speed hit the vehicle No. AXA 9268. In result heavy damage was caused to vehicle No. AXA-9268 and multiple injuries to the driver Sankar Roy and Mahendra Ch. Das causing death of late Sankar Roy. 5. The respondent No. 1 i.e., commandant 103 BN. BSF contested case by filing written statement wherein they alleged that the driver of claimant’s vehicle No. AXA- 9268 was at fault and for his rash & negligent act the accident occurred. According to them after the accident the driver of AXA 9268 fled away alongwith the vehicle and it was chased by the police. Due to said accident the driver of military vehicle died and the widow of the driver had filed separate claim case in MAC No. 32/1989. In MAC No. 32/1989 the present appellant as opposite party in it written statement averred that the vehicle was insured with Oriental Insurance Company Ltd. The Oriental Insurance Company Ltd., however, denied that the vehicle was insured with them. 6. Learned Tribunal framed altogether 21 issues in the claim cases filed by the appellant and on conclusion of proceeding dismissed all the claims. 7. 6. Learned Tribunal framed altogether 21 issues in the claim cases filed by the appellant and on conclusion of proceeding dismissed all the claims. 7. While considering the present appeal, it is to be noticed that the learned Tribunal has taken the view that the appellant claimant failed to establish that its vehicle was duly insured and that the claimant being owner of the vehicle involved in the accident cannot be the authorized representative of any victims, the proceeding was thus dismissed. 8. While considering these findings, reached by the learned Tribunal, what may be noted is that in MAC No. 81/1989 the claimant had sought for compensation on account of damage caused to its vehicle by the vehicle of respondent. The learned Tribunal has not decided, in the impugned judgment, for whose fault the accident occurred or who was responsible to pay the compensation if any, for the damage caused to the vehicle. 9. Presenting the case on behalf of the claimant appellant Mr. B.N. Sarma, learned counsel for the appellant has submitted that the learned Tribunal’s conclusion that the vehicle of claimant was not insured and for want of valid Insurance policy the claimant is not entitled to claim damage was erroneous. Claimant had claimed compensation from the owner of the respondent’s vehicle and without arriving at the conclusion as to whether the vehicle belonging to respondent was at fault dismissed the claim. The claimant filed the application for compensation on behalf of its drivers who sustained injuries. Learned Tribunal failed to consider that a claim for compensation can be filed by any agent duly authorized by a person injured or by legal representatives of the deceased. 10. The submission so made on behalf of the claimant appellant is seriously disputed by Mr. Dutta and Mr. Chakraborty, learned counsels for the respondents. It is submitted that the claimant failed to produce my document to show that it was authorized by the injured drivers. Moreover, law does not permit the wrongdoer to seek compensation. The claimant had filed application for review of judgment which was rejected by the Tribunal and this appeal is also against the order of rejection of review application. Therefore, the appeal is not maintainable. 11. Moreover, law does not permit the wrongdoer to seek compensation. The claimant had filed application for review of judgment which was rejected by the Tribunal and this appeal is also against the order of rejection of review application. Therefore, the appeal is not maintainable. 11. A person whose own wrongful act, negligence or default caused the accident can made an application under section 163 A. In case of claiming special damage of the property or for the injuries sustained by the victim under section 166 of M.V. Act the claimant has to prove for whose fault the accident occurred. The Tribunal has to assess the question of entitlement. It has to assertion liability of the person who is liable to and the person who is to indemnify the liability, if any and then to determine the amount of compensation. The claimant appellant had filed his claim cases under section 166 M.V. Act and it was obligatory on the part of Tribunal to determine for whose fault the accident occurred but no such endavour was made by the Tribunal. 12. So far claimant’s claim for compensation on account of injuries sustained by its drivers, it is worth noticing that claimant did not file any authority letter or any document to show that he was authorized to claim compensation by one of the injured driver or legal representative of the deceased driver. 13. Although clause (d) to section 166 of the Act allows any agent to file application but the agent must be duly authorized by the person injured or all or any of the legal representatives of the deceased, as the case be. 14. Proviso to Section 166(1) (d) says where all the legal representatives of deceased have not joined in any such application for compensation, the application shall be made on behalf of or for all the legal representatives of the deceased and legal representatives who have not so joined, shall be impleaded as respondents to the application. 15. Here in this case the claimant nowhere stated that the claim petition was filed on behalf of all the legal representatives of the deceased. In fact who all are legal representative of the deceased was not disclosed either in claim petition or during the proceeding. Therefore, the claim for compensation filed by the claimant for death or injury caused to drivers of the vehicle of the claimant are not maintainable. 16. In fact who all are legal representative of the deceased was not disclosed either in claim petition or during the proceeding. Therefore, the claim for compensation filed by the claimant for death or injury caused to drivers of the vehicle of the claimant are not maintainable. 16. In MAC Case NO. 81/1989 the claimant has claimed compensation for damage of its vehicle. As discussed earlier the learned Tribunal neither ascertained who is liable causing damage nor assessed the damage. Therefore, the judgment passed in MAC Case No. 81/1989 is hereby set aside. The matter is remanded back for fresh decision. Both parties may be allowed to adduce further evidence if they so desire. 17. In result and for the foregoing reasons the appeal in respect of MAC Case No. 80/89 and 79/89 fails. Judgment passed in MAC 81/89 is set aside and the matter is remitted for fresh decision. Parties shall bear their own cost. 18. Send down the LCR alongwith a copy of this judgment.