Oriental Insurance Co. Ltd vs Smti Manomanti Chouhan And 4 Ors
2021 Latest Caselaw 980 Gua

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GAHC010003912017




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                       Case No. : MACApp./227/2019

         ORIENTAL INSURANCE CO. LTD.
         HAVING ITS REGISTERED OFFICE AT ORIENTAL HOUSE A 25/27 ASAF ALI
         ROAD, NEW DELHI 110002 AND REGIONAL OFFICE AT GUWAHATI-7,
         REPRESENTED BY THE REGIONAL MANAGER



         VERSUS

         SMTI MANOMANTI CHOUHAN and 4 ORS
         W/O SRI JAGANATH CHOUHAN @ GAGANATH CHUHAN, R/O VILL.
         JILKAGHAR, P.S. ALAIGAON, DIST. UDALGURI, BTAD, ASSAM, PRESENTLY
         RESIDING AT CHENIKUTHI, KKB ROAD, GUWAHATI 781003, DIST.
         KAMRUP (M), ASSAM.

         2:SRI JAGANATH CHOUHAN @ GAGANATH CHUHAN
          R/O VILL. JILKAGHAR
          P.S. ALAIGAON
          DIST. UDALGURI
          BTAD
         ASSAM
          PRESENTLY RESIDING AT CHENIKUTHI
          KKB ROAD
          GUWAHATI 781003
          DIST. KAMRUP (M)
         ASSAM.

         3:MD. HASINUR RAHMAN
          S/O ABDUL MALIK

         R/O JORDANGA
         BAMUNPARA
         P.S. MANKACHAR
         DIST. DHUBRI (ASSAM)
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             PIN 783301 (OWNER OF THE VEHICLE No. ML-09-2021
             TRUCK)

            4:MD. MUKTAR RAHMAN
             S/O ABDUL MALIK

            R/O JORDANGA
            BAMUNPARA
            P.S. MANKACHAR
            DIST. DHUBRI (ASSAM)
            PIN 783301 (DRIVER OF THE VEHICLE No. ML-09-2021
            TRUCK)

            5:THE SAFEEXPRESS CO. LTD.
             MANAGER
             SAFEXPRESS CARGO COMPLEX
             37
             GORCHUK
             KATABARI
             BELTOLA
             GUWAHATI - 35
             DIST. KAMRUP(M)
            ASSAM

Advocate for the Petitioner   : MR. S DUTTA

Advocate for the Respondent : MR. D TUMUNG




                                     BEFORE
                    HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                       JUDGMENT

Date : 15-03-2021

Heard Ms. M. Choudhury, the learned counsel appearing for the appellant as well as Mr. A.D. Choudhury and Mr. S. Deka, the learned counsel appearing for the respondent.

2) The instant appeal is filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as "MV Act") is preferred against the judgment and award dated 30.08.2018, passed by the learned Member, Motor Accident Claims Tribunal No. 3, Kamrup (M), Guwahati, Assam in MAC Case No. 661/2011.

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3) On 14.12.2010, Late Kartik Chouhan, a professional driver with Safexpress Company Limited, was travelling in a truck bearing registration No. WB-15A-6173, belonging to the aforesaid company. On the same day, at about 4.30 am, at Godharabari under Agia Police Station, the said vehicle dashed against a stationary vehicle bearing registration No. ML-09-2021, which was parked without its parking lights switched on. As a result of the accident, Kartik Chouhan died on the spot. On the day of occurrence, the deceased was aged about 25 years and was earning a salary of Rs. 8,000/- per month. Police registered a case vide Agia P.S. Case No. 124/2010. The stationary truck was insured with the present appellant, Oriental Insurance Company Limited. The Insurance Policy was valid up to 12.12.2010.

4) The owner and driver of the stationary truck and the Safexpress Company limited did not contest the case by filing any written statement

5) The Oriental Insurance Company contests the case by filing the written statement. The only specific plea taken by the Insurance Company is that the stationary truck was not negligent and therefore not liable to pay any compensation.

6) On the basis of the pleadings, the learned Tribunal framed the following issues for adjudication:

(i) Whether Kartik Chouhan died as a result of the injuries sustained by him in the alleged road accident dated 04.12.2010 took place at Godhabari, Agia under Agia police station involving the vehicle bearing registration No. ML-09-2021 (Truck) and WB-15A-6173?

(ii) Whether the said accident dated 04.12.2010 took place as result of rash and negligent driving of the driver of the vehicle bearing registration no. No. WB-15A- 6173 or for negligent parking of the vehicle bearing registration No. ML-09- 2021(Truck) or both?

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(iii) Whether the claim petition is maintainable in its present form due to non-joinder of Truck No. WB-15A-6173 by which the deceased was travelling?

(iv) Whether the claimants are entitled to receive any compensation for the death of their son and if yes, to what extent and from whom?

7) Before the Tribunal the respondent examine one witness and the appellant examine two witnesses. On the basis of the evidence on record, the Tribunal arrived at the impugned findings.

8) Ms. M. Choudhury, the learned counsel for the appellant has submitted that the witness Sri Anup Kr. Bhattacharjee being the investigator of the Insurane Company, has admitted in his cross-examination that he had written a letter to the owner of the vehicle bearing registration No. WB-15A-6173, stating that the vehicle No. ML-09/2021 was wrongly kept stationeries. The witness further admitted that in his investigation report, i.e Exhibit-A, he has mentioned that the vehicle No. ML-09-2021 was the offending vehicle.

9) Considering the submission made by Ms. M. Choudhury, the learned counsel for the appellant, the point for determination in this appeal is as to whether the accident took place because of the composite negligent driving of the vehicle bearing registration no. ML-09-2021 and the vehicle bearing registration No. WB-15-A-6173.

10) The learned Tribunal framed the issue no. 2 to decide this question and ultimately held that the accident dated 04.12.2010, took place because of rash and negligent driving by both of the vehicle bearing registration nos. ML-09-2021 and WB-15-A-6173. The learned Tribunal further held that the respondent would be entitled to a compensation of Rs. 7,90,000/- to be paid by the appellant company. The Tribunal directed that the appellant Insurance Company would be at liberty to recover the proportionate amount of award from the owner/driver/insurer of the truck bearing registration No. WB-15A-6173.

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11) On perusal of the judgment passed by the learned Tribunal, it appears that the learned Tribunal held that both the vehicles were responsible for the accident. But the learned Tribunal did not hold anything pertaining to the amount of negligent contributed by each of the trucks. How much money the appellant Insurance Company would recover from the insurance of the aforesaid truck bearing registration No. WB-15-A-6173 has not been mentioned in the judgment. Unless the learned Tribunal fixes the amount of contributory negligence, it would not be possible for the appellant Insurance Company to recover the money from the Insurance Company of the vehicle bearing registration No. WB-15-A-6173. The Tribunal never held that each of the vehicle contributed 50% of the negligence.

12) This Court is of the opinion that the impugned judgment passed by the learned Tribunal is an ambiguous judgment. The learned Tribunal has held both the vehicles responsible for the accident but the amount of contribution of each of the vehicles to the accident has not been mentioned and the learned Tribunal directed the appellant Insurance Company to pay Rs. 7,90,000/- as compensation and to recover the proportionate amount of the award from the owner/driver/insurer of the truck bearing registration No. WB-15-A-6173. This Court holds that the impugned judgment is not sustainable in law. It is an ambiguous judgment.

13) Therefore, the appeal is allowed. The matter is remanded back to the learned Tribunal to pass a fresh judgment on all issues, within next three months from today.

With the aforesaid observation appeal is disposed of.

Send back the LCR.

JUDGE Page No.# 6/6

Comparing Assistant