Calcutta High Court (Appellete Side)
Smt. Gita Sarkar & Ors vs Rajesh Bhattacharya & Anr on 20 January, 2023
06
20.01.2023
Ct. No.237
pg.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURICTION
APPELLATE SIDE
FMA 1512 of 2009
with
IA No. CAN 2 of 2009 (CAN 8336 of 2009)
Smt. Gita Sarkar & Ors.
Vs.
Rajesh Bhattacharya & Anr.
Mr. Debasis Sur
Mr. Himadri Shekhar Paul
Mr. Angshuman Patra
... For the appellants/claimants
Mr. Parimal Kumar Pahari
... For the respondent no.2/Insurance Co.
This appeal is directed against the judgment and
order dated 12th February, 2007 passed by the learned
Judge, Motor Accident Claims Tribunal, Additional District
Judge, Fast Track, 3rd Court, Asansol, in connection with
MAC Case No.07 of 2005/239 of 2004 whereby the learned
Tribunal dismissed the claim petition on the ground that
the registered owner of the offending bus was not
impleaded in the claim petition.
The claim petition under Section 166 of the Motor
vehicles Act, 1988 was filed on account of death of one Ajit
Sarkar in a motor accident occurred on 3rd March, 2004 at
about 11 a.m. by the involvement of one Bus, bearing
registration no.WB-37/2212. While the said Ajit Sarkar
was travelling with his motor cycle, at the time the said
bus coming with high speed and in rash and negligent
manner, dashed the motor cycle. As a result, Ajit Sarkar
sustained injury on his person and he was treated at
Bokaro General Hospital and ultimately succumbed to his
injuries.
The owner of the offending vehicle did not contest
the claim petition but the National Insurance Company
Limited contested the case by filing the written statement
denying all material averments of the claim petition.
In course of trial, three witnesses were examined.
In course of their evidence, a good number of documents
were admitted in evidence.
Learned Judge of the Tribunal after assessing the
entire evidence on record, returned his finding that
Janardan Kundu was the registered owner but he was not
impleaded in the claim petition and instead of that one
Rajesh Bhattacharya was impleaded as registered owner in
the claim petition. On that ground the learned Tribunal
dismissed the application.
In course of hearing, Mr. Debasis Sur, learned
advocate, appearing on behalf of the appellants/claimants
has submitted that after the accident, Janardan Kundu
sold out the bus involved in the alleged accident to one
Rajesh Bhattacharya and that is why his name was
impleaded as owner of the offending bus.
Mr. Parimal Kumar Pahari, learned advocate,
appearing on behalf of the respondent no.2/National
Insurance Company Limited has submitted that it is a fit
case for remand, giving an opportunity to the appellants/
claimants to implead the original registered owner.
Considering all facts and circumstances as well as
submission made by Mr. Debasis Sur, learned advocate for
the appellants/claimants, I find that the appellants/
claimants have documents to show that transfer of the
offending bus after the accident from Janardan Kundu to
Rajesh Bhattacharya.
Considering all facts and circumstances discussed
hereinabove as well as considering the nature of case
under the beneficial legislation, I am of the opinion that
this case should be remanded back to the learned Tribunal
for disposal afresh after giving an opportunity to the
appellants/claimants to prove the case of transfer of the
vehicle.
With the aforesaid observation, the judgment and
order dated 12th February, 2007 passed in MAC Case
No.07 of 2005/239 of 2004, stands set aside and the
learned Tribunal is requested to dispose of the claim
petition afresh, after giving an opportunity to the parties of
this case to adduce evidence, as early as possible.
The appeal, being FMA 1512 of 2009, stands
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.)
