Tuluyara Bibi @ Tuluyara Sekh & Ors vs The New India Assurance Co. Ltd. & ...
2023 Latest Caselaw 1437 Cal

27.02.2023                 IN THE HIGH COURT AT CALCUTTA
 Ct. no.654                 CIVIL APPELLATE JURISDICTION
 Sl. Nos.56
     ss
                                  F.M.A.T.(MV) 239 of 2022
                                     CAN 1 of 2021

                        Tuluyara Bibi @ Tuluyara Sekh & ors.
                                     Versus
                       The New India Assurance Co. Ltd. & anr.


                    Ms. Sima Ghosh
                              ... for the appellants-claimants

                    Mrs Gopa Das Mukherjee
                           ......for the respondent no.1-Insurance Co.

Re : CAN 1 of 2022

This is an application for condonation of delay in

preferring the instant appeal.

Ms. Sima Ghosh, learned Advocate for the

appellants-claimants submits that due to financial

stringency and sudden demise of the father of the

deceased, the appeal could not be preferred within the

statutory period of limitation, resulting in delay of 452

days in preferring the appeal and she submits for

condonation of such delay.

Mrs Gopa Das Mukherjee, learned Advocate for the

respondent no.1-Insurance Company opposes such

prayer for condonation of delay.

As per report of the Additional Stamp Reporter

dated 9th November, 2022, in view of the order of Hon'ble

Supreme Court passed in Suo Motu Writ (C) No.3 of 2020,

there is delay of 72 days in preferring the appeal. It is

contended that due to financial stringency the appeal

could not be preferred within time. The cause shown is

sufficient to condone such delay. Accordingly, delay of 72

days in preferring the appeal is condoned.

The application being CAN 1 of 2022 stands

disposed of.

The appeal is formally admitted and registered.

Re : FMAT (MV) 239 of 2022

This appeal is preferred against the judgment and

award dated 29th June, 2019 passed by the learned

Judge, Motor Accident Claims Tribunal, Fast Track 3rd

Court, Berhampore, Murshidabad, in M.V. Case No.40 of

2017 under Section 166 of the Motor Vehicles Act, 1988.

Let the lower court records be called for.

Department is directed to take effective steps for

bringing the lower court records from the learned

Tribunal within two weeks from date.

Upon receipt of the lower court records, the Office

shall examine the same and if found to be complete and in

order, shall serve notice of arrival of the lower court

records upon the learned advocate for appellants-

claimants as well as learned Advocate for the respondent

no.1-Insurance Company within a period of two weeks of

such arrival.

Learned Advocate for the appellants-claimants

upon receipt of notice of arrival of lower court records,

shall prepare and file three sets of informal paper books

incorporating all relevant papers and documents including

the pleadings and evidence, both oral and documentary,

printed or typewritten or cyclostyled, as the case may be,

out of court, within a period of four weeks from the date of

service of notice of arrival of lower court record on the

learned Advocate for the appellant.

Ms. Ghosh, learned Advocate for the appellants-

claimants submits for dispensing of service of notice of

appeal upon the respondent no.2, owner of the offending

vehicle since he did not contest the claim application. It

appears from the impugned judgment and award that the

respondent no.2, owner of the offending vehicle, did not

contest the claim application and the case is disposed of

ex parte against him. In the aforesaid backdrop, service of

notice of appeal upon the respondent no.2, owner of the

offending vehicle, is dispensed with.

Since the respondent no.1-Insurance Company has

already entered appearance, hence service of notice of

appeal upon the said respondent is also dispensed with.

Re : CAN 2 of 2022

This is an application for appropriate order.

Ms. Ghosh, learned Advocate for the appellants-

claimants submits that after passing of the award the

father of the deceased namely, Iman Sk. expired on 12th

September, 2021. Since the legal heirs of Iman Sk. (since

deceased) are already on record, his name is required to

be expunged from the memorandum of appeal.

Mrs Gopa Das Mukherjee, learned Advocate appears

for the respondent no.1-Insurance Company.

From the contention in the application and the

documents namely, death certificate annexed to the

application, it appears that the claimant no.3, Iman Sk.

expired on 12th September, 2021. Further it is found from

the application that save and except the appellant nos 1, 2

& 3 there are no other heirs of deceased Iman Sk.

In view of the above, the name of Iman Sk. be

expunged from the memorandum of appeal.

Department is directed to incorporate the aforesaid

fact in the memorandum of appeal.

The application being CAN 2 of 2022 stands

disposed of.

Let the matter appear on 27th March, 2023 under the

heading 'Hearing'.

      <                          (Bivas Pattanayak, J.)