Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 1347 (GAU)

Md. Jasimuddin Sarkar v. Bergo Basumatary

2018-09-13

RUMI KUMARI PHUKAN

body2018
JUDGMENT : Rumi Kumari Phukan, J. Heard learned counsel for the appellant A D Choudhury. Also heard Mr. A Dutta, learned counsel for the respondent No. 4 as well as Miss. S Roy, learned counsel for the respondent Nos. 5 & 6. 2. The appeal has been preferred against the judgment and award dated 04.01.2011 passed by learned Member, Motor Accident Claims Tribunal, Kokrajhar in MAC Case No. 90/2006. The claimant Bergo Basumatary preferred the claim petition before the learned Tribunal praying for compensation for the injury he sustained in a vehicular accident. 3. Brief fact of this case is that on 15/03/2006 one Bergo Basumatary while he along with other labourers was returning on a tractor bearing Reg. No. AS-16/8713 after delivery of betel-nut, he met with an accident and as the vehicle turned over on the road at Guabari P.W.D Road at about 4-00 PM. According to him the accident took place due to rash and negligent driving of the vehicle that was driven by the driver of the tractor. As a result of the accident, he sustained injury on his leg and arm and after recovery from his injury, he preferred the claim petition. Regarding this accident, a police case was also registered against the driver of the said tractor. 4. Upon receipt of the case, the owner, driver and the insurer of the said tractor were notified by the learned Tribunal who in turn filed their respective written statement denying the allegation and the liability. While the owner of the vehicle denied the accident but it is also submitted that the vehicle was duly insured with The Oriental Insurance Company Ltd. and the driver had the valid license so the insurer is liable to pay the compensation. 5. On the other hand, the plea of The Oriental Insurance Company Ltd. was that they are not liable to pay the compensation if there was violation of policy condition. 6. Upon the pleadings the learned Tribunal framed the necessary issues : 1. Whether there is any cause of action for this case ? 2. Whether the claimant sustained grievous injury in his person due to accident caused by vehicle No. AS-16/8713 (Tractor) at about 4-00 P. M on 15.3.06 on PWD Road of Goybari village due to rash and negligent driving by the driver of the alleged vehicle while he was travelling in the alleged vehicle as labour? 2. Whether the claimant sustained grievous injury in his person due to accident caused by vehicle No. AS-16/8713 (Tractor) at about 4-00 P. M on 15.3.06 on PWD Road of Goybari village due to rash and negligent driving by the driver of the alleged vehicle while he was travelling in the alleged vehicle as labour? 3. Whether the alleged vehicle was insured with O.P No. 3 Oriental Insurance Company Ltd. and the Insurance policy was valid at the time of accident ? 4. Whether the claimant is entitled to get any compensation, if so what extent ? 7. Subsequently on the basis of the evidence on record, the learned Tribunal also implicated the owner, driver and insurer of the other vehicle/the motor cycle which was also alleged to be involved in the said incident by the witnesses. The aforesaid motor cycle was stated to be driven by the present appellant, who was impleaded as respondent No. 4 in the said case. But despite service of the notice, the respondent No. 4 did not contest the case before the Tribunal. The Tribunal framed another two additional issues as herein below. 1. Whether Motor Cycle bearing registration No. 19/9526 was involved in the accident by contributing rash and negligent driving and hit the Tractor No. AS-16/8713 ? 2. Whether the alleged Motor cycle was insured with O.P No. 5 and 6 i.e. National Insurance Company Ltd. and the Insurance policy was valid at the time of accident ? 8. The claimant examined as many as 4 (four) witnesses and the tribunal on examination of the witnesses on record, decided the issue and come to a findings that the aforesaid accident took place due to rash and negligent driving of both the vehicles and as the Motor Cycle driven by the appellant found involved in the case, the learned Tribunal held both the vehicles liable for the accident. While deciding so it was also held that the owner of the said tractor violated the policy condition by carrying such passenger in the tractor, as per the policy there was a coverage only against the driver, not for the passenger. Similarly, the respondent No. 4/the present appellant also did not produce any driving license or insurance policy before the learned Tribunal and as such it was held that owner of both the vehicles is liable to pay the compensation, and not the Insurance Company. Similarly, the respondent No. 4/the present appellant also did not produce any driving license or insurance policy before the learned Tribunal and as such it was held that owner of both the vehicles is liable to pay the compensation, and not the Insurance Company. The learned Tribunal fixed the compensation to be paid to the claimant at Rs. 23,500/- which should be bear by both the owner of the vehicles at the ratio of 50:50 at the interest of 6 per cent per annum from the date of filing of the claim. 9. Challenging the award, the appellant/the owner of the Motor Cycle preferred the present appeal on the ground that the findings of the learned Tribunal is bad in law inasmuch as they were never impleaded in the claim petition nor by the claimant in his evidence so only on the basis of evidence of one eye witness, the appellant cannot be held liable for the said accident. Relying on a decision reported in 2012 4 GLT 817, it has been contended that the claimant cannot travel beyond the pleadings, by whosoever evidence he has adduced in this regard, which is not specifically pleaded in his case. 10. I have considered the submission of learned counsel for the appellant and learned counsel for The Oriental Insurance Company Ltd. who were present before this Court, although already they are exonerated from the liability to pay the compensation. As in this case as were made a party respondent they appeared and remained present before this Court. The claimant and the owner/driver of the Tractor did not turn before this Court despite service of notice and the case proceeded accordingly. 11. I have gone through the LCR and the evidence of the claimant that has been adduced. So far as the limited point raised herein (quantum is not challenged) that the claimant is not liable to pay the compensation as his involvement was not challenged and proved by the claimant himself. 12. It is worth mentioned that so far as the proceeding before the Motor Accident Claims Tribunal the word herein has been used "proceeding" in the nature of enquiry not in the nature of trial as per the Code of Civil Procedure, although the spirit of C.P.C is also followed herein. 12. It is worth mentioned that so far as the proceeding before the Motor Accident Claims Tribunal the word herein has been used "proceeding" in the nature of enquiry not in the nature of trial as per the Code of Civil Procedure, although the spirit of C.P.C is also followed herein. It is found very much true that while filing the claim petition, even in the amendment petition the claimant nowhere mentioned about the involvement of the Motor Cycle in the accident but implicated only the Tractor. However, in his cross-examination, he has admitted that the involvement of the Motor Cycle in the accident. But the other witness (PW-2) eye witness to the occurrence has specifically stated that due to the negligent driving of the Motor Cycle the accident took place. On the basis of his evidence, the learned Tribunal has proceed to implead the present appellant in the aforesaid case. The appellant lost the opportunity to contest the case while he was called upon to contest the matter. 13. Now the point for consideration as to whether the evidence of PW-2 who is the eye witness to the occurrence whether can be acted upon or discarded ? 14. In the humble opinion of this Court the evidence of said witness perhaps cannot be discarded only because, he was not an interested witness to the occurrence and no way related to the claimant, he simply happened to be present in place of occurrence and has seen the occurrence by his own eyes so it is difficult to discard his evidence which has also appreciated by learned Tribunal. 15. In view of the impact of the accident, it can be inferred that both vehicles were in extreme high speed for which one of the vehicle overturned on the road resulting injury to many persons. The son of the present appellant who lodged the FIR immediately after the accident, has also not indicated that only because of the fault of the said tractor the incident has taken place. He simply stated in the FIR that his father and mother sustained injury in the said accident on the day of occurrence, which speaks that the driver of the said Tractor was not solely responsible for the said accident. 16. He simply stated in the FIR that his father and mother sustained injury in the said accident on the day of occurrence, which speaks that the driver of the said Tractor was not solely responsible for the said accident. 16. As has been found that the claimant herein is a garden labourer where he has given a thumb impression/illiterate person, in his petition as well as evidence. He may not be aware about the consequences however, he has divulged that both the vehicles were involved in the said accident in cross-examination. In the circumstances there appears no irregularity in the award that has been passed by the learned Tribunal, regarding the apportionment of liability between the two vehicles. As the claimant herein failed to produce the relevant documents regarding insurance of his vehicle etc. owner/appellant is found to be liable to pay the compensation as per findings that has been made by the learned Tribunal. 17. Consequently, the appeal stands dismissed with a direction to the appellant to pay the amount to the claimant before the Tribunal accordingly within a period of 6 (six) weeks from today. Return the LCR.