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Tripura High Court · body

2015 DIGILAW 653 (TRI)

Kamal Dasgupta v. Monoranjan Debbarma

2015-08-17

DEEPAK GUPTA

body2015
ORDER This is an appeal filed by the owner against the judgment passed in review dated 26th April, 2011 by the learned Motor Accident Claims Tribunal, Court No.1, North Tripura, Kailasahar in Civil Misc. (Review) 09 of 2011 arising out of T.S. (MAC) 09 of 2009. (2) The claimant filed a claim petition claiming compensation. It was alleged that he suffered injuries in an accident involving vehicle No. TRL-2527. It was also alleged that the vehicle was insured with the Insurance Company. However, photocopy of the insurance policy was produced but the owner did not step into the witness box nor led any other evidence to show who was the driver of the vehicle, whether the driver had a valid driving license or not. The learned Tribunal, therefore, ordered that the entire amount of compensation would be paid by the owner. After the award was passed, the owner filed a review petition in which it was alleged that his vehicle was insured with the Insurance Company and with the review petition also only the original policy certificate was filed but even then no driving license was filed. (3) The Tribunal allowed the review petition and held that the Insurance Company would be liable to pay 50% of the amount and the insured owner of the vehicle would pay the balance 50%. This award is under challenge. (4) To say the least, this is a ridiculous award. It shows total lack of knowledge of the Motor Vehicles Act as well as the principles relating to Insurance. Either the Insurance Company is liable to fully pay the amount or it is not liable to pay any amount whatsoever. There is no question of half of the awarded amount being paid by the Insurance Company and half of the awarded amount being paid by the insured. (5) Another disturbing aspect of the matter is the manner in which the Review petition has been decided. This Court is not at this stage deciding the question whether a Tribunal has power to review its judgment on these grounds or not. Assuming that this power is there then also if the owner had placed the insurance policy then an opportunity should have been given to the Insurance Company to now defend the case on the grounds which were available to it. Was the vehicle driven by a duly licensed driver or not? Assuming that this power is there then also if the owner had placed the insurance policy then an opportunity should have been given to the Insurance Company to now defend the case on the grounds which were available to it. Was the vehicle driven by a duly licensed driver or not? Was the vehicle being driven in violation of the terms of the policy in the Act? All these questions need to be decided before fastening the liability on the Insurance Company. Mere production of the policy of insurance only proves that the vehicle was insured with the Insurance Company but the Insurance Company must be given a chance to raise other defenses which it had not raised during the trial because there was no valid policy placed on record. (6) Therefore, I set aside the order which is under challenge and direct as follows: (i) That, the parties shall appear before the Motor Accident Claims Tribunal, Court No.1, North Tripura, Kailasahar on 24th November, 2015; (ii) Thereafter, the learned Tribunal shall direct the owner of the vehicle to produce documents such as, the driving license of the driver or if the owner was driving the vehicle the license of the owner. In case, the vehicle was being driven by any other person then the capacity in which he was driving and contemporaneous evidence to show that he was actually driving the vehicle at that time; (iii) The Insurance Company will be granted reasonable opportunity and permitted to contest the case of the owner and thereafter, the learned Tribunal shall decide whether it is the owner or the Insurance Company which is liable to pay the compensation. (iv) As far as the amount of compensation is concerned that having not been challenged by the owner or by the Insurance Company that remains final and, therefore, it is for the claimant to decide whether he wants to appear before the Tribunal or not because his interest is not going to be affected. (7) With these observations, the appeal is disposed of. (8) Send down the lower court records forthwith.