Kibria Sk vs Asit Baran Kundu & Anr
2023 Latest Caselaw 144 Cal

    07
05.01.2023
Ct. No.237
    pg.
                        IN THE HIGH COURT AT CALCUTTA
                           CIVIL APPELLATE JURICTION
                                 APPELLATE SIDE

                                  FMA 676 of 2006

                                      Kibria Sk.
                                         Vs.
                              Asit Baran Kundu & Anr.



                      Mr. Subrata Bhattacharya
                           ... For the appellant/claimant

                      Mr. Rajesh Singh
                           ... For the respondent no.2/Insurance Co.

This appeal is filed challenging the judgment and

order passed on 24th March, 2005 by the learned Judge,

Motor Accident Claims Tribunal, 3rd Court, Burdwan, in

connection with MAC Case No.28 of 2005 whereby the

learned Judge awarded compensation to the tune of

Rs.1,54,000/-.

The claim petition arose out of an application filed

under Section 163A of the Motor vehicles Act, 1988 on

account of injury sustained by the claimant Kibria Sk. on

10th November, 2003 at about 8.00 a.m. by the

involvement of one Bus, bearing registration no.WGB-

4275, which was proceeding towards Memari from

Chuadanga and the accident took place at Madhamgram.

The claimant sustained injury all over his body and

admitted to hospital and finally his left leg was amputated.

At the relevant point of time, the claimant used to earn

Rs.4,500/- per month through his fish business and he

was aged about 32 years.

Owner of the offending vehicle did not contest the

claim petition but the National Insurance Company

Limited contested the case by filing written statement

denying all contents of the claim petition contending, inter

alia, that the claimant did not sustain any injury by the

involvement of the bus.

In course of trial, only the claimant examined

himself as PW-1 and in course of his evidence, Disability

Certificate, Discharge Certificate of Burdwan Medical

College and Hospital, Insurance Policy and Panchayat

Certificate were filed.

Learned Tribunal after considering the evidence on

record assessed notional income of Rs.15,000/- per

annum as the claimant could not prove the income by

adducing any substantive evidence. Learned Tribunal also

did not consider the Disability Certificate as it was not

substantiated by the evidence of doctor and finally the

learned Tribunal awarded a lump sum amount of

Rs.1,54,000/- towards compensation.

In this appeal the accidental injury sustained by

the appellant/claimant by the involvement of the bus has

not been disputed. In course of argument, learned

advocate appearing on behalf of the appellant/claimant

has submitted that left leg of the claimant was amputated

during treatment at Burdwan Medical College and Hospital

and in support of his argument, he has referred to the

Disability Certificate and Discharge Certificate issued by

the Burdwan Medical College and Hospital.

From the entire record, I find that the documents

relied on by the appellant/claimant were all filed before

the learned Tribunal but the learned Tribunal neither

admitted those documents in evidence nor returned those

documents to the appellant/claimant. On the other hand,

the documents filed on behalf of the claimant before the

learned Tribunal were not produced and proved according

to the procedure prescribed therefor.

In these circumstances, no option is left to this

Court but to remand back the case to the concerned

learned Tribunal for giving an opportunity to the

appellant/claimant to prove those documents and dispose

of the application under Section 163A of the Motor

Vehicles Act, 1988 according to the procedure prescribed

in the Second Schedule of the said Act as this is a case

arose out of an accident which alleged to have taken place

on 10th November, 2003.

With the aforesaid observation, the judgment and

order passed by the learned Tribunal on 24th March, 2005

in connection with MAC Case No.28 of 2005 stands set

aside.

The case is being remanded back to the learned

Tribunal for disposal of the said MAC Case No.28 of 2005

under Section 163A of the Motor Vehicles Act, 1988 afresh

after giving an opportunity to the parties with regard to

prove all the documents filed on the record on behalf of the

appellant/claimant.

Learned Tribunal is also requested to dispose of

the claim case preferably within three months from date as

it is pending since 2003.

With the above observation, the appeal, being FMA

676 of 2006, is disposed of.

All pending applications, if there be any, stand

disposed of.

Records of the learned Tribunal along with a copy

of this order be transmitted back immediately.

Urgent photostat certified copy of this order, if

applied for, be given to the parties, upon compliance of

necessary formalities.

(Bibhas Ranjan De, J.)