Calcutta High Court (Appellete Side)
Malay Roy vs Nabadwip Halder & Anr on 10 October, 2023
10.10.2023
19
Ct. no. 652
sb
CO 4444 of 2016
Malay Roy
Vs.
Nabadwip Halder & Anr.
Mr. Jayanta Kumar Mondal ...for the Petitioner
Affidavit of service filed by the petitioner is taken on
record. In spite of service, opposite parties are not
represented.
Being aggrieved and dissatisfied with the order no.
35 dated 28.7.2016 passed by the learned Additional
District Judge, M.A.C Tribunal, 1st Court, Barasat, North
24 parganas in M.A.C.C. no. 3 of 2010, present
application under Article 227 of the Constitution of India
has been preferred.
The petitioner contended that the petitioner as
claimant filed aforesaid application under Section 166 of
Motor Vehicles Act, 1988 before the tribunal. The
opposite party no. 2 i.e. Oriental Insurance Company Ltd.
contested the said application by filing written statement
denying all material allegations made in the claim
application. Thereafter, on 24th January, 2014, the
opposite party no. 2 filed one petition for joining joint
tortfeasors as a party to the suit. The petitioner herein as
claimant filed objection against the said petition but the
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learned court below by the impugned order, was pleased
to allow the application dated 24th January, 2014 filed by
the aforesaid opposite party no. 2 and permitted the
petitioner to make the vehicle being no. 26C 3971 (police
jeep) as a party to the suit and to submit all the relevant
documents in respect of the aforesaid vehicle before the
court below.
Being aggrieved by the order, learned counsel for
the petitioner submits that the order impugned suffers
from material irregularity and illegality and the court
below has failed to appreciate the position of law. The
learned court below erroneously held that as both the
vehicles were involved in the said accident, the present
case should be heard in the presence of both the vehicles
and for that the insurer of the another vehicle being no
26C 3971 (police Jeep) should be made party in his claim
case for the ends of justice and that the claimant shall
not be prejudiced in any way for impleading the other
vehicles in the claim case.
He further contended that the claimant being the
dominus litis is entitled to decide against whom he wants
to fight to get his claim and against whom he does not
want to fight. Here claimant does not want to implead the
insurance company of the said vehicle as according to
claimant they are neither necessary party nor the present
claim case is required to be heard in their presence and
that prayer for adding a vehicle as a party is vague which
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learned court below over looked. Moreover, an Insurance
Company cannot ask claimant to add some other vehicle
owner or insurer to be made a party when claimant does
not have any claim against said vehicle and claimant does
not want to implead such insurer or owner as a party.
The contestant insurance company is confined to his
liability only and he has no authority to ask claimant to
implead and/or to enquire about other vehicles liability, if
any. In this context, he relies upon judgment in the case
of The National Insurance Co. Lrd. Vs. Swapan Kumar
Dakua & anr. reported in 2000 WBLR (Cal) 289 and in
the case of Khenyei Vs. New India Assurance Co. Ltd.
and Others reported in 2015 (2) TAC 677 (SC) to
substantiate his contention that entire claim may be
preferred by the claimant against all or any of the drivers,
owners or insurers. Accordingly, the petitioner has prayed
for setting aside the order impugned.
I have gone through the application filed by the
petitioner for impleading the other vehicle as a party to
the claim case as well as the order impugned. On perusal
of the prayer of the claim application, it appears that the
petitioner has prayed for impleading vehicle being no.
26C 3971 (police jeep) to make as a party in the suit and
to disclose the documents of the vehicle and driving
licence of the driver of the said vehicle.
Learned counsel for the petitioner further submits
that he does not have any details of the said vehicle and
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as such, how the police jeep can be impleaded as a party
in the said claim case without having any details about
the said jeep. On perusal of the order, it also appears that
the court below has ordered by allowing the
petitioner/opposite party/insurance company to make
the vehicle being no. 26C 3971 (police jeep) as a party to
this suit and to submit all the relevant documents in
respect of the aforesaid vehicles. When the petitioner has
clearly submitted that he does not have the relevant
documents in respect of the aforesaid vehicle, the order
impugned appears to be vague.
In view of above, C.O. 4444 of 2016 is accordingly
allowed. The order impugned being order no. 35 dated
28.7.2016
passed in MACC no. 3 of 2010 by M.A.C.
Tribunal, 1st Court, Barasat is hereby set aside. The
petitioner herein will be at liberty to pray for discovery
and interrogatories for ascertainment of the details of the
said vehicle and they will also be at liberty to pray for
adding party, if petitioner being claimant so chooses and
in the case of filing such application, the court below will
dispose of such application after hearing both the parties
in accordance with law at the earliest.
The Tribunal will make every endeavour for speedy
disposal of the claim case since it is pending for a
considerable period of time.
Urgent photostat certified copy of this order, if
applied for, be given to the parties upon compliance of all
requisite formalities.
(Ajoy Kumar Mukherjee, J.)
