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2017 DIGILAW 304 (CAL)

Sarina Yasmin v. Farida Begam

2017-03-17

MIR DARA SHEKO

body2017
JUDGMENT : MIR DARA SHEKO, J. 1. Affidavit of service filed by Mr. Subir Banerjee, learned Advocate for the petitioner, be kept on record. Heard Mr. Banerjee, the learned Advocate representing the petitioner and also Mr. Ali Imam Shah, the learned Advocate representing the opposite parties. 2. The revisional application under Article 227 of the Constitution of India has been directed against the Order No. 14 dated 29.8.2016 passed by the learned Judge, Motor Accident Claims Tribunal, 4th Court, Burdwan in MAC Case No. 27 of 2015 where an application under Order 1 Rule 10 of the Code of Civil Procedure was presented by the petitioner Sarina Yasmin claiming herself as the wife of the road traffic accidental victim, namely, Saddam Hussain, since other admitted dependants of the deceased have filed the MAC case claiming compensation under Section 166 of the Motor Vehicles Act without making her as a party. 3. Mr. Banerjee argued that before learned Tribunal marriage registration certificate was produced to show the registration of marriage between the petitioner and the said Saddam Hussain, since deceased but the prayer for being added as a party was turned down on the wrong approach which is not available within the ambit of the provisions of the Motor Vehicles Act. Therefore, the petitioner prays to set aside the impugned order and to allow the revisional application so that the petitioner may get right of audience in that claim application which should be disposed of also in her presence, since she was legally married wife. 4. Mr. Shah invited my attention to the observations made by the learned Tribunal and also to the text of FIR lodged by the petitioner involving the said Saddam Hussain along with other relatives where also the statements of the petitioner were recorded under Section 164, Cr.P.C. and submitted that the said complaint ended into charge sheet dated 22.7.2014. Mr. Shah submitted that till before death of Saddam Hussain, the petitioner never appeared or came forward claiming herself as wife of Saddam Hussain. She also did not act in any way in the criminal proceeding from Saddam Hussain was released on Court bail on 28.2.2014. The unfortunate road trafficking accidental death of Saddam Hussain took place on 2nd January, 2015. Shah submitted that till before death of Saddam Hussain, the petitioner never appeared or came forward claiming herself as wife of Saddam Hussain. She also did not act in any way in the criminal proceeding from Saddam Hussain was released on Court bail on 28.2.2014. The unfortunate road trafficking accidental death of Saddam Hussain took place on 2nd January, 2015. It is Obvious that within the ambit of a Claim case under Section 166 of the M.V. Act learned Tribunal is to adjudicate the claim only, in the perspective of its ingredients in the face of police papers involving the road accident, insurance policy, if any, and other attending circumstances, required for determination of the quantum and in the event of success the award is directed for compensating virtually the dependants of the deceased. Therefore, within the ambit of that proceeding before Tribunal there is hardly any scope to determine as to whether any person was the spouse of the deceased or not, meaning thereby, determination of marital status, or otherwise, in case of tendering of claim or counter involving said status. In that event, the determination of the issue as to whether one was the spouse of the deceased or not, as it happens in this case, or the marital status, if any, one claims it and it is disputed by other as illegal or not effected, is subject to declaration by the Civil Court of competent jurisdiction which cannot be adjudicated by the Claims Tribunal within the ambit of the M.V. Act. 5. Therefore, when the jurisdiction for determination as to whether the petitioner was the wife on the basis of the paper so tendered, when the jurisdiction is not vested with the Tribunal, then in the alternative, such jurisdiction is also not vested with the Tribunal to hold that the petitioner was not the wife specially when one apparent registration of marriage certificate is said to have been executed by alleged deceased and the petitioner before the Kaji and said document was produced before the Tribunal. 6. 6. Learned Tribunal is noticed to have swayed by observations which are set out here under:- "Now the question arises that if the marriage actually took place between Saddam Hossain and Sabina Yasmin, why she did not file any application to the concerned Court during pendency of the trial stating the fact of the marriage in order to save Saddam Hossain from being prosecuted further, after such marriage." 7. In the process, this Court may observe by giving liberty to both the parties to agitate over the issue before the appropriate forum and if so advised, pending decision of said proceeding they may wait for disposal of such MAC case No. 27 of 2015. Otherwise, in the face of the document on apparent look the Tribunal or even this Court without adjudication cannot hold that the petitioner was not the wife for being debarred from joining in the claim case. The other fallacy also that the petitioner did not react in any manner before the Criminal Court where the FIR was entertained also cannot be taken into consideration for keeping her out of the scene of the Claim case, as because there may be version and counter version without having any scope of extraction of any positive result, though the facts remain that in the criminal case where an offence under Section 376 was also levelled by the petitioner on 11.1.2014 there was Court bail of Saddam Hussain only within almost one and half month. 8. In view of the above observations since this Court failed to support impugned order, rather the contention of Mr. Banerjee that the petitioner cannot be debarred from right of audience in the Motor Accident Claim case allowing her to be added as a party is much more convincing in the face of alleged marital paper, the impugned order is liable to be set aside. 9. Banerjee that the petitioner cannot be debarred from right of audience in the Motor Accident Claim case allowing her to be added as a party is much more convincing in the face of alleged marital paper, the impugned order is liable to be set aside. 9. The revisional application is accordingly allowed with direction to the learned Tribunal to record the formal order allowing the application under Order 1 Rule 10 of the Code of Civil Procedure permitting the petitioner to be an opposite party in the proceeding and giving liberty to submit contention on her part in the claim case giving opportunity to submit rejoinder, if any, in view of peculiar circumstances of the case, and to proceed thereafter with the claim case for disposal in accordance with law if further proceeding of such MAC case is not halted by order of any Court of competent jurisdiction. Be it made clear that determination of the relationship between Saddam Hussain and Sarina Yasmin the concerned Court shall not be swayed by or influenced with any observation made by this Court in disposing of the revisional application. 10. Department is directed to communicate a copy of this order to the Learned trial Court immediately for information. Urgent photostat certified copy of this order, if applied for, be given to the parties on usual undertaking.