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Gauhati High Court · body

2018 DIGILAW 20 (GAU)

United India Insurance Co. Ltd. v. Abdul Jalil

2018-01-05

KALYAN RAI SURANA

body2018
JUDGMENT AND ORDER : 1. Heard Mr. B.J. Mukherjee learned counsel for the appellant as well as Mr. A.I. Uddin learned counsel for the respondent No. 1. Also heard Mr. A. Alamgeer learned counsel for the respondent No. 3. 2. This is an appeal under section 173 of the Motor Vehicles Act against the judgment and award dated 28.08.2015 passed by the learned Member, MACT, Hojai, at Sankardev Nagar, Nagaon in MAC Case No. 35/14. 3. With the consent of the learned counsel for both the sides the matter has been taken up for hearing. 4. The brief facts of the case is that one Samsuddin, son of the respondent No. 1/claimant was driving his motor cycle bearing registration No. AS-02-F-9863 on 20.06.2013 at about 5 p.m. and at that moment another motor cycle bearing registration No. AS-02-K-5547 which was going from the opposite direction in a rash and negligent manner, driven by the respondent No. 2 herein dashed against the motor cycle of Samsuddin. As a result of the accident he sustained grievous injuries on his head and succumbed to his injuries. 5. The case was registered before the Murajhar Police Station which was registered as 234/13 under section 279/304 (A) IPC. At the time of the occurrence of the accident the victim was 19 years old and he was working at a Coal field in Meghalaya. The respondent No. 1 filed a claim petition before the Court of learned Additional District Judge, Hojai, Sankardev Nagar, which was registered as MAC Case No. 35/14. The respondent No. 2 i.e. the owner of the offending motor cycle and the appellant i.e. the insurer contested the case by filing their written statement. Along with the usual plea the appellant herein took the plea that the deceased had borrowed a motor cycle from the respondent No. 3 and had stepped into the shoes of the owner and that he was driving the vehicle without a valid license. 6. On the basis of the pleading the following issues were framed:- (1) Whether the deceased Samsuddin died in a motor accident that took place on 20.06.2013 due to hit by one rashly and negligently driven vehicle bearing registration No. AS-02-K-5547? (2) Whether the driver of the offending vehicle was at fault? (3) Whether the claimant is entitled for compensation from the owner and insurer of the offending vehicle and to what extent? 7. (2) Whether the driver of the offending vehicle was at fault? (3) Whether the claimant is entitled for compensation from the owner and insurer of the offending vehicle and to what extent? 7. In course of trial, the respondent No. 1/claimant examined 2 PWs. including himself and had exhibited the following documents:- Ext-1 Original copy of Form No. 54 dated 05.09.2013 Ext-2 Another original copy of Form No. 54 dated 05.09.2013 Ext-3 certified copy of FIR Ext-4 Original copy of income certificate issued by Doboka Circle dated 02.09.2013 Ext-5 Original death certificate of the deceased Ext-6 Original School certificate of the deceased Ext-7 a certificate issued by Gaonburha Ext-8 A certificate issued by Na-Mati Gaon Panchayat Ext-9 copy of post mortem report. 8. The opposite party in the claim petition did not examine any witness. While deciding the issue No. 1, the learned Trial Court arrived at a finding that the FIR was lodged about 1 months after the time of occurrence and that as per the evidence of PW-1 although the victim had obtained a driving license, no document was proved in support of such license was produced. 9. The learned Tribunal took note of the evidence of the PW-2, Abdul Kayam who had stated in his evidence that he had heard the sound of the accident and saw that immediately thereafter the offending vehicle was going away in excessive speed and claimed to know from the victim that he was knocked down by the said vehicle. 10. The learned Tribunal took note of the fact that the driving license could not be produced by the respondent No. 1/claimant and such license was not proved by the victim. However, because the victim had died, the learned Tribunal was of the considered view that the fatal injury had taken place due to rash and negligent driving of the offending motorcycle by the respondent No. 2 and the issue No. 1 was decided in affirmative. Accordingly, in respect of issue No. 2 it was held that the offending vehicle was driven by the respondent No. 2 in a rash and negligent manner. Therefore, as a consequence, in respect of issue No. 3, by taking national income of the deceased and considering the age factor, the assessment of compensation was done as follows:- (1) For fatal injury Rs. 3,84,000/- (2) For loss of consortium, loss of love and affection Rs. Therefore, as a consequence, in respect of issue No. 3, by taking national income of the deceased and considering the age factor, the assessment of compensation was done as follows:- (1) For fatal injury Rs. 3,84,000/- (2) For loss of consortium, loss of love and affection Rs. 50,000/- Total Rs. 4,34,000/- 11. The same sum was awarded, directing that the appellant would pay 50% of the compensation and balance 50% would be paid by the respondent No. 3 herein, the owner of the offending vehicle. 12. The payment was directed to be made within a period of 3 months from the date of the order with interest @ 6% per annum from the date of filing of the claim petition. Further directing that if, the order was not followed then an additional interest at 8% per annum would be imposed on the said sum. 13. Heard the submissions made by the learned counsel for both sides. The short submission of the learned counsel for the appellant was that while deciding the issue No. 3, neither the national income of the deceased was quantified nor the applicable multiplier was referred in the order and there was an abrupt calculation of compensation at Rs. 3,84,000/- and without any bifurcation of components, compensation for loss of injury, love and affection was taken at Rs. 45,000/- and as such, it is submitted that the judgment suffered from lack of disclosure of material particulars. 14. It is further submitted that as the driving license would not be produced no compensation ought to have been awarded against the appellant, but such compensation was liable to be paid by the owner of the offending vehicle as it was being driven in violation of the condition of the contract of insurance. 15. The learned counsel for the respondent had made his submission in support of the impugned judgment and award. 16. Having noticed that there was no mention of the quantum of national income as well as applicable multiplier this Court by order dated 22.12.2017, had directed the learned counsel for the parties to submit a rough calculation of compensation to enable this Court to appreciate this matter at the admission stage. 16. Having noticed that there was no mention of the quantum of national income as well as applicable multiplier this Court by order dated 22.12.2017, had directed the learned counsel for the parties to submit a rough calculation of compensation to enable this Court to appreciate this matter at the admission stage. All the learned counsel for the three appearing parties have submitted that as the learned Tribunal has not quantified the income or the multiplier, what they would be submitting before this Court would merely be a calculation based on surmises and conjectures and, as such, they have all submitted that they found it difficult to submit their respective calculations, which is not based on material facts. 17. Having heard the learned counsel for the parties, the only point of determination before this Court is that whether without quantification of the income or the applicable multiplier and without any discussion on the issue of driving a motor cycle in violation of the terms of insurance, the order is sustainable in the eye of law? 18. This Court is of the considered view that while the learned Tribunal was required to deal with the issue as to whether the offending motorcycle was being driven in the absence of the driving license, it was required to be decided whether it was the onus of the claimant to produce the driving license or it was the duty of the insurer to prove the violation of the terms of the policy condition while deciding the issue No. 1. Moreover, in respect of issue No. 3 the basis of quantifying the assessment of Rs. 3,84,000/- as well as compensation on account of loss of company, love and affection at Rs. 45,000/- was required to be disclosed. 19. The non disclosure of the required components of compensation, like income as well as the applicable multiplier is found to have vitiated the impugned judgment and award. 20. It is under those circumstances that this Court as well as the arguing counsel for both sides were agreed that if the matter is admitted it would merely delay the claim petition because ultimately on merit, this Appellate Court would require an exercise to determine compensation and it would be impossible to do so when the Tribunal was not given a finding thereon. 21. 21. Hence, this Court is of the considered view that as per the facts presented, the present case calls for an order of remand. Accordingly, for the reasons indicated above this appeal stands allowed. The impugned judgment and award dated 28.08.2015 passed by the learned Additional District Judge, Sankardev Nagar, Hojai in MAC Case No. 35/14 is set aside. The matter is remanded back to the said learned Court for a fresh decision in accordance with law. 22. The learned Tribunal shall afford further opportunity to the appearing parties to lead fresh evidence in support of their case if so advised. 23. As the claim petition is of the year 2014, as such, the learned Tribunal shall expedite the hearing. 24. The parties who are duly represented by the learned counsel are directed to appear before the learned Tribunal below without any further notice of appearance on 12.03.2018, and by producing a certified copy of this order, the parties shall seek further instructions from the said learned Court.