Research › Search › Judgment

Gauhati High Court · body

2018 DIGILAW 1492 (GAU)

M. D. Kasim Ali v. M. D. Rozan Ali

2018-10-04

RUMI KUMARI PHUKAN

body2018
JUDGMENT : Rumi Kumari Phukan, J. Heard Mr. M Talukdar, learned counsel for the appellant. Also heard Mr. P J Barman, learned counsel for the respondent No. 1 as well as Mr R C Paul learned counsel for the respondent No. 2 and Ms. M Bhattacharjee assisted by Ms. K Yadav learned counsel for the respondent No. 3. 2. Being aggrieved with the order of dismissal of claim petition, filed by the appellant present appeal has been preferred. 3. Briefly stated the case of the claimant/appellant is that on 27.4.2007 at about 6.30 A.M. while the appellant was driving the vehicle bearing Reg. No. AS-25-C-597 (truck) from Guwahati towards Nagaon, then suddenly another truck coming from the opposite side in a rash and negligent manner dash against the vehicle run by the appellant, as a result of which he sustained severe injury on his person. He was treated for the injury he sustained at different hospital by incurring huge expenditure. Accordingly a claim petition was preferred before learned Tribunal, Morigaon claiming compensation for the injury he sustained and the same was registered as MAC Case No. 67/2010. 4. Notice was issued to the respondents i.e. the owner and insurer of the offending vehicle (truck) and also the owner of the vehicle which was driving by the claimant. All those impleaded parties, filed their respective written statement. The owner of the offending vehicle of the truck bearing Reg. No. AS-23-E-5086 in his written statement denying the allegation, has stated that the vehicle was duly insured with the Oriental Insurance Co. Limited and driver had a valid driving licence, so he has no liability to pay the compensation. The Oriental Insurance Company Ltd., the insurer of the truck No. AS-23-E-5086 as usual denied the claim petition and submitted that the liability of the Insurance Company is subject to the fulfillment of the policy condition by the insurer. 5. On the other hand, the registered owner of the vehicle bearing Reg. No. As-25-C-6597 in his written statement has also stated that the vehicle was duly insured with the Oriental Insurance Company Ltd. and the driver had the valid licence. 6. Upon the pleadings of the parties, following issues were framed by the learned Tribunal : (i) Whether the accident took place due to rash and negligent driving by the driver of offending vehicle in question, vehicle No. As-23-E-5086 (Tata Truck) ? 6. Upon the pleadings of the parties, following issues were framed by the learned Tribunal : (i) Whether the accident took place due to rash and negligent driving by the driver of offending vehicle in question, vehicle No. As-23-E-5086 (Tata Truck) ? (ii) Whether the claimant/claimants is/are entitled to get any compensation ? If so, what what should be the quantum of the said compensation ? (iii) Who should be liable to pay the compensation ? 7. During the course of proceeding, the claimant examined himself and also exhibited certain documents pertaining to the accident as well as the medical documents etc. On examination of the oral and documentary evidence of the claimant, the Tribunal come to a findings that the claimant has not made party to the owner, driver and insurer of the vehicle No. As-25-C-6597 (truck) in the case. However, it is found contrary to the record as the said owner of the vehicle was impleaded as a OP No. 3 vide para 6 of the judgment itself wherein he has made a mention that the vehicle was duly insured with The Oriental Insurance Company Ltd. The learned Tribunal also made an observation that the claimant has adduce evidence tactfully to say itself about rash and negligent driving, by not including the owner, insurer of the said vehicle No. As-25-C-6597. Further, the Tribunal also opined that the claimant failed to produce the charge sheet of the Dharamtul PS Case No. 35/2007 although, the FIR has been filed pertaining to the case and as such in absence of charge sheet in connection with the said case we cannot be held that accident took place due to the rash and negligent driving of the offending vehicle No. As-23-E-5086 (truck). With the aforesaid observation, the learned Tribunal was pleased to dismiss the claim petition. 8. Today, learned counsel for the appellant has drawn the attention of the Court towards the evidence of the claimant's as well as document adduced in this regard and submitted that the learned Tribunal has failed to take note of certain material aspect for which such an erroneous conclusion has been made. It is submitted that the claimant himself exhibited FIR as well as charge sheet in his evidence which is also very much on record and number vide Ext-3 is the charge sheet but the learned Tribunal has failed to appreciate the same. It is submitted that the claimant himself exhibited FIR as well as charge sheet in his evidence which is also very much on record and number vide Ext-3 is the charge sheet but the learned Tribunal has failed to appreciate the same. On the other hand, it is also contended that the claimant has duly impleaded the owner of the vehicle No. As-25-C-6597 who is also duly contested the case as OP No. 3 but same was escaped notice of the Tribunal. 9. Today, learned counsel for the respondent Nos. 1 to 3 i.e. the insurer and the owner of the vehicle No. (AS-25-C-6597) are present and heard. They have also conceded to the aforesaid matters on record that the evidence and document of the claimant is already on record impleading the owner of the truck but of course the insurer of the said truck was not made a party in the case. 10. On careful examination of the entire matter on record, it reflects that the claim was preferred by the claimant by alleging rash and negligent driving on the part of the truck No. AS-23-E-5086 and the claimant himself driven the vehicle No. As-25-C-6597. In such backdrop, it was not at all necessary on his part to implead the owner, driver of the vehicle, he driven and required to impead the owner, driver and insurer of the offending vehicle. The learned Tribunal is to appreciate the matter that the claimant himself was the driver of the vehicle which met an accident and to decide to which fault the accident was occurred but raising the another issue about none filing of charge sheet and non impleadment of necessary party to the owner, driver of the vehicle learned Tribunal has dismissed the claim petition in wrong notion of law and facts, which is not sustainable. 11. In view of all above, the impugned award passed by the learned Tribunal on 5.6.2014 in MAC Case No. 67/2010 is hereby quashed and set aside with a direction to the Tribunal to decide the matter afresh on the basis of evidence (oral and documentary on record). Both the parties are directed accordingly to appear before the learned Tribunal on 19.11.2018 and learned Tribunal will dispose the matter in accordance with law within a period of one month from the date of receipt of the order. Return the LCR forthwith.