Page No.# 1/5 vs The Regional Manager
2021 Latest Caselaw 2216 Gua

                                                                Page No.# 1/5

GAHC010042382021




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

                        Case No. : MACApp./116/2021

         ANICHA BEGUM AND 4 ORS.
         W/O- MD. LALACHAN MIYA

         2: ALEKJAN BEGUM
          D/O- MD. LALACHAN MIYA

         3: NAZMA BEGUM
          D/O- MD. LALACHAN MIYA

         4: SAJIDA BEGUM
          D/O- MD. LALACHAN MIYA

         5: MONOWAR HUSSAIN
          S/O- MD. LALACHAN MIYA
          THE APPELLANT NOS. 2
          3
          4 AND 5 ARE MINOR DAUGHTERS AND SON OF APPELLANT NO. 1 AND
         HENCE THEY ARE REP. BY APPELLANT NO. 1
         ALL ARE RESIDENT OF VILL.- KACHIMPUR
          P.O. KENDUKCHI
          P.S. AND DIST.- NALBARI
         ASSAM AND PRESENTLY RESIDING AT VILL.- UTTAR ATHIABARI (RAJU
         PATH)
          P.O. AND P.S. BARPETA ROAD
          DIST.- BARPETA ASSA

         VERSUS

         THE REGIONAL MANAGER, THE NEW INDIA ASSURANCE CO. LTD.,
         G.S. ROAD, BHANGAGARH, GUWAHATI-5, DIST.- KAMRUP(M), ASSAM,
         PIN- 781005.
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Advocate for the Petitioner   : MR. S AHMED

Advocate for the Respondent : MR. S P SHARMA



                                         BEFORE
         THE HON'BLE MR JUSTICE PRASANTA KUMAR DEKA
                           ORDER

15.09.2021 Heard Mr. S. Ahmed, the learned counsel for the appellants. Also heard Ms. R. D. Mozumdar, the learned counsel for the respondent No. 1. Vide order dated 07.04.2021, the names of the respondent Nos. 2 and 3 were struck out from the cause title of this appeal which was filed under Section 173 of the MV Act. The service on the sole respondent is completed. Both the learned counsel agreed for disposal of this appeal at the order stage.

The impugned order was passed on 03.03.2020 in MAC Case No. 2387/2017 by the learned Member, MACT No. 2, Kamrup (M) at Guwahati. The appellants herein are the claimants in MAC Case No. 2387/2017. As per the certified copy of the order sheet dated 28.02.2020, the claimant side was absent and the opposite party No. 1. i.e. respondent Insurance Company was present. Accordingly, 03.03.2020 was fixed for claimants' witnesses notifying that would be the last chance. The learned Member on 03.03.2020 passed the following order and thereafter, on the same date, the impugned judgment and award was passed and delivered.

"03.03.2020

The claimant is absent without any steps.

The O.P. No. 1 is represented.

The record reveals that after framing of issues the case was posted on Page No.# 3/5

04.02.2019 for claimant's evidence but since then till date the claimant could not adduce any evidence. Since, 04.02.2019 the claimant has been taking adjournment by filing petition on the same ground. Last chance was accorded today to the claimant to adduce evidence, but the claimants have failed to comply with the order of the Tribunal and remained absent. As this is a very old pending case pending since about four months at the stage of evidence, as such hearing argument for the O.P. alone, the case is fixed for judgment. The above conduct of the claimant shows that the claimant is not interested to proceed with the case and thus, I do not find any justification to carry the case by fixing date after date.

Free copy of judgment and order be given to both sides forthwith.

The MAC Case is disposed of accordingly".

It is submitted by Mr. Ahmed that the claimants tried their best to obtain some documentary evidence from the court of learned CJM at Shillong but the same could not be obtained prior to 03.03.2020 and as per the order dated 03.03.2020, the claimant was absent without any steps.

Before delivering the judgment and award on 03.03.2020 as per the order sheet, the learned Member recorded that 04.02.2019 was the first date fixing for claimant's evidence but since then till 03.03.2020 could not adduce any evidence. Since 04.02.2019, the claimant took adjournment by filing petition on similar ground. Last chance was accorded to the claimant to adduce evidence, but the claimants failed to comply with the order of the Tribunal and remained absent. As the case was old pending one and for about four months, the claim petition was fixed at the stage of evidence, as such the learned Member hearing the argument of the opposite party alone, fixed for judgment. Pertinently the Page No.# 4/5

said judgment was passed on 03.03.2020 itself.

On perusal of the order dated 03.03.2020 in my considered opinion, the learned Member ought to have fixed another date for argument after closing the evidence of the claimant's side, instead the learned Member was satisfied to pass the judgment and award on 03.03.2020 itself after hearing the respondent Insurance Company alone. Though as per the order dated 03.03.2020 there is an apparent negligence on the part of the claimants in respect of adducing the evidence however, the learned Member was satisfied to fix 03.03.2020 as the last date for adducing evidence by the claimant and it was not fixed for argument nor passing the judgment and award. That, in my considered opinion has caused prejudice to the claimants. On the other hand Mr. Alam submits that the required evidence had already been obtained from the court of learned CJM at Shillong.

It would not be out of place to mention that Ms. Mozumdar objected to the submission made by Mr. Alam that the learned Member wrongly applied its jurisdiction in hearing the argument on 03.03.2020 and passed the judgment and award. It is her submission that as the claimant defaulted in adducing the evidence since 04.02.2019 and that too an evidence which forms a documentary evidence to be taken out from the court of learned CJM at Shillong, the negligence on the part of the claimants are very much apparent and intentional and as such the decision taken by the learned Member on 03.03.2020 is well within the procedural law. This submission as per Ms. Mozumdar is on the accepted principle that before filing a claim petition normally the documents are available with the claimants. This is not the case with the present claimants who are the appellants before this court.

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The said submission of Ms. Mozumdar even if it is accepted, but same would not correct the wrong application of the jurisdiction by the Tribunal under the procedural law. It is the duty of the court to fix notifying the dates for each and every stage of a proceeding. On 03.03.2020 it was the date fixed for evidence and the subsequent stage ought to have been for evidence by the respondent Insurance Company. However, as the respondent Insurance Company instead of preferring to adduce evidence agreed to argue the case that too in the absence of the counsel for the claimants appellants, that cannot be a ground for passing the judgment and award without hearing claimants.

In view of the same, I am constrained to interfere and accordingly set aside the judgment and award dated 03.03.2020 passed by the learned Member, MACT, No. 2, Kamrup (M) at Guwahati in MAC Case No. 2387/2017. The appellants shall appear before the Tribunal on 01.10.2021, whereafter, the learned Member shall fix a date for adducing evidence by the claimants and in the event there is any failure on the part of the claimants appellants, the learned Member shall proceed as per the procedural law stated hereinabove. After the completion of the evidence of both the parties, the learned Member shall make an endeavor to dispose of the said MAC Case No. 2387/2017 preferably within a period of three months from 01.10.2021. While passing the judgment and award afresh, the learned Member shall consider the submissions of both the learned counsel and pass the award as per the relevant law holding the field.

Accordingly this appeal stands disposed of.

JUDGE

Comparing Assistant