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2016 DIGILAW 288 (GAU)

Raja Ghosh v. Budri Basumatary

2016-04-19

MANOJIT BHUYAN

body2016
ORDER : 1. Heard Ms. B. Goyal, learned counsel for the appellant as well as Mr. A. Ahmed, learned counsel representing the respondent no. 3 i.e. New India Assurance Company Limited. Also heard Mr. H. Haque, learned counsel representing respondent nos. 1 and 2 i.e. the claimants. 2. The minor boy by the name of Dhutang Basumatary suffered demise on being knocked down by a speeding Bus bearing Registration No. ASG-4153. The unfortunate accident occurred at about 2.30 P.M. of 14.01.2005 at Batabari, Joypur Village in the District of Kokrajhar. A police case was also registered accordingly. The said vehicle at the time and date of accident was insured with the respondent no. 3 i.e. New India Assurance Company Limited vide Policy No. 530300/31/03024 valid from 31.12.2004 to the midnight of 30.12.2005. 3. Claim under the provisions of the Motor Vehicles Act, 1988 was made by the respondent nos. 1 and 2. Upon notice, the respondent no. 3 had appeared and has also filed written statement. In so far as the present appellant is concerned, he abstained from making any appearance and the claim case proceeded ex-parte against him. 4. In the course of the proceedings as many as five witnesses were examined on the side of the claimants and as many as 13 documents exhibited. Importantly, the copy of the Insurance Policy was also exhibited as Ext.-11. On the Issues framed, more particularly in respect of the Issue Nos. 2 and 3, the learned Tribunal found that the son of the claimants, Dhutang Basumatary had succumbed to injuries sustained in the vehicular accident of 14.01.2005. The claimants were found entitled to get adequate compensation. As regards the quantum of compensation is concerned, the learned Tribunal recorded that the victim was 14 years of age on the date of the accident. In such a situation, compensation was fixed by applying the principle of notional income in terms of the Second Schedule to the Motor Vehicles Act. The quantum arrived was at Rs. 1,55,000/- taking into consideration the funeral and medical expenses involved. Finally, an award was passed to the extent of Rs. 1,55,000/- against all the opposite-parties for payment jointly and severally. 5. The appellant being the owner of the offending vehicle is before this Court aggrieved of the direction for payment of compensation jointly and severally. 1,55,000/- taking into consideration the funeral and medical expenses involved. Finally, an award was passed to the extent of Rs. 1,55,000/- against all the opposite-parties for payment jointly and severally. 5. The appellant being the owner of the offending vehicle is before this Court aggrieved of the direction for payment of compensation jointly and severally. The pin-pointed case is that since the accident was covered by a valid Insurance Policy, he stood indemnified by it and accordingly liability for making payment ought to have been made only upon the respondent no. 3 i.e. the New India Assurance Company Limited. 6. Per contra Mr. A. Ahmed submits that having regard to the facts of the case there is no infirmity in the direction of the Tribunal for payment of compensation jointly and severally. 7. I have heard the parties at length and have also perused the records in original. There is no manner of doubt that the vehicle in question was duly insured with the respondent no. 3 and the Insurance Policy was valid on the date and time of the accident. It also appears from the records that no defence was taken by the Insurance Company to claim immunity from making any payment by citing any grounds as provided under sub-section (2) of Section 149 of the Motor Vehicles Act, 1988. Apparently, the vehicle was duly insured and the same was valid at the relevant time. This aspect of the matter was not oblivious to the learned Tribunal during the proceedings of the claim case. This being the position, the direction for making payment jointly and severally by the opposite-parties cannot stand for justification by roping in the owner as well. 8. In view of the above, the order passed by the learned Tribunal to the extent that the award is to be satisfied by the opposite-parties jointly and severally is liable to be interfered with, which is accordingly done. In view of the fact that there was a valid Insurance Policy indemnifying the appellant against any liability arising out of the vehicular accident, it is the respondent no. 3 i.e. the New India Assurance Company Limited which is alone liable to satisfy the award. 9. The quantum of compensation so awarded, less what has already been paid to the claimants, shall be made over to the claimants within 3 months from today, failing which the respondent nos. 3 i.e. the New India Assurance Company Limited which is alone liable to satisfy the award. 9. The quantum of compensation so awarded, less what has already been paid to the claimants, shall be made over to the claimants within 3 months from today, failing which the respondent nos. 1 and 2 shall be entitled to recover interest @ 9% per annum from the date of Judgment & Award dated 25.07.2006 until realisation of the balance amount. Appeal stands allowed to the extent indicated above. 10. Registry to send back the Lower Court’s Records forthwith. It is made clear that the balance amount payable in terms of the direction above shall be deposited by the Insurance Company before the learned Motor Accident Claims Tribunal, Kokrajhar.