Page No.# 1/ vs Reliance General Insurance Co. ...
2022 Latest Caselaw 2759 Gua

                                                               Page No.# 1/10

GAHC010238872018




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

                       Case No. : MACApp./937/2018

         SMT BHARATI BEZBARUAH AND 3 ORS
         W/O LATE BIREN BEZBARUAH
         RESIDENT OF VILLAGE AKHARA
         PO SURADI, PS NALBARI, DIST NALBARI, ASSAM 781335

         2: SRI CHANDAN BEZBARUAH
          S/O LATE BIREN BEZBARUAH
         RESIDENT OF VILLAGE AKHARA
         PO SURADI
          PS NALBARI
          DIST NALBARI
         ASSAM 781335

         3: MISS INITA BEZBARUAH
          D/O LATE BIREN BEZBARUAH
         RESIDENT OF VILLAGE AKHARA
         PO SURADI
          PS NALBARI
          DIST NALBARI
         ASSAM 781335

         4: SRI APURBA BEZBARUAH
          S/O LATE BIREN BEZBARUAH
         RESIDENT OF VILLAGE AKHARA
         PO SURADI
          PS NALBARI
          DIST NALBARI
         ASSAM 78133

         VERSUS

         RELIANCE GENERAL INSURANCE CO. LTD AND 2 ORS
         RELIANCE CENTRE, 19, WALCHAND HIRACHAND MARG, BELTARD
         ESTATE, MUMBAI, 400001, INSURER OF VEHICLE NO WB-41G-1905
                                                                           Page No.# 2/10

            (TRUCK) COVER NOTE NO. C 1509532334000270, VALID UPTO 03/02/2014
            (REPRESENTED BY THE LEGAL MANAGER, RELIANCE GENERAL
            INSURANCE CO, LTD. GUWAHATI BRANCH, 5TH FLOOR, ANIL PLAZA, GS
            ROAD, BHANGAGARH, GUWAHATI-781005, ASSAM

            2:NAND KUMAR SINHA
             S/O LATE RAM SINHA
            R/O KATWA TOWNHALL PARA
             PO AND PS KATWA
             DIST BURDWAN
             PIN 713130
            WEST BENGAL
             OWNER OF VEHICLE NO. WB-41G-1905 (TRUCK)

            3:ASHIM MARJIT
             S/O SRI NIMAI MARJIT
             R/O VILLAGE KATWA MILLPARA
             PO AND PS KATWA
             DIST BURDWAN
             PIN 713130
            WEST BENGAL
             DRIVER OF VEHICLE NO WB-41G-1905 (TRUCK)
             DRIVING LICENCE NO WB-41199487424. VALID UPTO 01/05/201

Advocate for the Petitioner   : MR. J KALITA

Advocate for the Respondent : MR T KALITA




                                   BEFORE
                     HONOURABLE MRS. JUSTICE MALASRI NANDI

                                        JUDGMENT

Date : 05-08-2022

1. Heard Mr. J. Kalita, learned counsel appearing for the appellants and Mr. T. Kalita, learned counsel appearing for the respondents.

2. This appeal has been preferred by the appellant/claimant challenging the

judgment and order dated 29/06/2018 passed by the Member MACT, Nalbari in MAC

case No 20/2016.

3. The brief facts of the case is that the appellants/claimants have filed a claim Page No.# 3/10

case praying for compensation before the MACT, Nalbari on account of the death of

the husband of appellant/claimant no 1 and father of appellants/claimants nos. 2, 3

and 4, arising out of a motor vehicle accident which occurred on 21/08/2013. It is

stated in the claim petition that the deceased was working as a cleaner for different

goods laden trucks plying on different routes and his one trip generally lasted for

about 7 to 10 days. The appellants/claimants came to know about the accident only

on 29/08/2013 i.e. after the dead body was disposed of by the police due to want of

identification of the dead body. The appellant initially filed an application u/s 163 A

of MV Act but subsequently they have filed a separate petition u/s 166 of the MV Act.

Since the dead body was not identified by any person during post mortem

examination and none has mentioned earlier that the deceased was a regular

cleaner, the learned Tribunal without any basis has held that the deceased was a

gratuitous passenger and the respondents no 2 and 3 i.e. the owner and the driver of

the offending vehicle were directed to pay the awarded amount.

4. Being highly aggrieved and dissatisfied with the impugned judgment and

order dated 29/06/2018 passed by the Member MACT, Nalbari, the appellant has

preferred this appeal before this court.

5. Learned counsel for the appellant has argued that the Tribunal has erred in

law as it held that the deceased was not a cleaner of the offending truck but he was

a gratuitous passenger and without any application of judicious mind directed the

respondent nos 2 and 3 i.e. the owner and driver of the offending truck to pay the

awarded amount.

Page No.# 4/10

6. It is also the submission of the learned counsel for the appellant that the

Tribunal did not consider the evidence of PW3, the investigating officer who

conducted the investigation on the accident. According to him, the driver of the said

offending vehicle disclosed before him that he picked up one person from Nalbari as

there was no handyman in his vehicle. When the truck was overturned, the said

person jumped from the offending vehicle. But despite the clear fact that the

deceased boarded in the offending vehicle for unloading of its goods, the Tribunal

had come to the conclusion that the deceased was a gratuitous passenger and

wrongly directed the driver and owner of the offending vehicle to pay the awarded

amount instead of directing the insurance company which is totally illegal and

perverse and liable to be set aside.

7. On the other hand, learned counsel for the insurance company has

contended that it was not proved by the claimant's side that late Biren Bezbarauh

died due to the alleged accident. The GD entry no 385 dated 21/08/2013 shows that

an unidentified person was knocked down by a truck. It is also submitted that the

insurance company denied the death of the deceased in the accident in question

as the name of the deceased did not find place either in the charge sheet or in the

post mortem examination report wherein the name of the deceased was written as

unidentified. Learned counsel for the insurance company also referred the FIR lodged

by the claimant wherein it is mentioned that his father was travelling in the truck and

failed to mention the very important fact that his father was travelling as a cleaner in

the said truck. Under such backdrop, Insurance Company is not liable to pay any

compensation.

Page No.# 5/10

8. I have considered the submissions for the learned counsel for the parties. I

have also perused the record of MAC case no 20/2016 and the documents available

thereon.

9. It is an admitted fact that the dead body of the deceased was not identified

after the accident and which was disposed of by the police of Mangaldoi police

station after statutory period. As such it cannot be said that the deceased died due

to accident by involving the vehicle WB- 41G/1905 (Truck). It appears from the record

of trial court that three witnesses were examined by the claimants during trial. CW1

Chandan Bezbaruah, one of the claimants claimed to be the son of deceased Biren

Bezbaruah. CW2 is Manoranjan Sharma neighbour of the deceased. PW3 is Narendra

Hazarika, the investigating officer.

10. After going through the evidence of PW1, 2 and 3 it reveals that they were not

present when the accident occurred. PW1 and PW-2 nowhere stated that how they

came to know about the accident by stating that on 21/08/2013 at about 9 PM while

the deceased was proceeding from Akhara towards Tezpur as cleaner of the vehicle

bearing no WB- 41G/1905 (Truck), the said vehicle met with an accident at Karaiguri

Narikali under Sipajhar PS due to rash and negligent driving by the driver of the

vehicle. It is also alleged that the vehicle became out of control of the driver due to

excessive speed and its break did not work and when it took a turn at Karaiguri

Narikali under Sipajhar PS, the vehicle turned turtle. Due to the alleged accident the

deceased fell down from the vehicle and the vehicle ran over him as a result of

which he sustained crushed injuries on his head and other parts of his body and died Page No.# 6/10

on the spot.

11. In his cross examination, CW1 replied that they had withdrawn earlier MAC

case bearing no 332/13 which was filed before the tribunal. His father worked as a

cleaner/helper of a truck. The accident occurred on 21/08/2013 at Karaiguri under

Sipajhar PS. They came to know about the accident after eight (8) days. They did not

see the dead body of their father which had been disposed of by the police of

Sipajhar PS. They were informed by the Sipajhar police that the dead body was of

their father having seen his photographs which they had taken with them.

12. CW1 in his cross examination also admitted that in the FIR he stated that the

accident occurred due to mechanical defect of the truck. He did not mention in the

FIR that his father was a helper/cleaner. He did not meet the owner or the driver at

Sipajhar PS. It is also admitted that he has not filed any documentary evidence to

prove that his father worked as a cleaner/helper in the truck.

13. CW2 replied in his cross examination that his resident is located in front of the

house of the deceased. He did not witness the accident. He did not visit Sipajhar. He

did not know the owner, the driver or the handyman of the offending truck. He never

saw the deceased going in any truck at times. As he belongs to the same village, he

came to depose as a witness on being requested by the claimant.

14. From the evidence of CW1 and 2, it is seen that after filing of the FIR the

investigation was started and after completion of investigation charge sheet was

submitted against the driver of the offending truck u/s 279/304(A) IPC alleging that

the accident occurred due to rash and negligent driving by the driver of the said Page No.# 7/10

vehicle. Admittedly none of the witnesses were examined who had seen the

accident. As per the Judgment of the Learned Tribunal referring some case laws like

Ranubala Pal vs. Bani Chakrabarty and others and N.K.V. Brothers (P) Ltd vs. M.

Karumai Ammal and others, it is true that a claim before the Motor Accident Claims

Tribunal is neither a criminal case nor a civil case and in a claim before the Motor

Accident Claims Tribunal the standard of proof is much below than what is required in

a criminal case as well as in a civil case but there must be some material before the

Tribunal on the basis of which the Tribunal can come to the conclusion regarding

accident or awarding compensation.

15. In the case in hand, the claimants have filed the claim petition claiming

compensation for the death of their husband/father in the accident in question

which occurred on 21/08/2013 at about 9 PM at Karaiguri Narikali under Sipajhar PS.

As I have already mentioned that there is no eye witness to the accident. The only

evidence found in the record that the driver of the offending truck took one person

with him in the said truck from Nalbari and just before the accident he had jumped

from the said truck.

16. PW3 the investigating officer deposed before the Trial court that on 21/08/2013

he was posted at Sipajhar PS. As per GD entry no 385 dated 21/08/2013 based on

telephonic information, he along with OC, Sipajhar PS went to Karaiguri where an

accident took place involving one truck. On arriving the place of occurrence he

noticed one Potato laden/carrying truck bearing no WB41G/1905 fell on a ditch by

the side of the road. They also found one dead body of a middle aged man whose Page No.# 8/10

body was lying by the side of the road. The tyres of the truck had run over the dead

body causing injury to his head and the right shoulder and the right hand region. On

inquiry the person assembled there informed him that the said truck had hit the

person whose dead body was found but they could not identify the dead body.

17. PW3 further stated that as the dead body could not be identified, he made a

prayer before the District Magistrate, Mangaldoi for post mortem examination as well

as for preservation of the dead body for 72 hours. After expiry of 72 hours he again

made a prayer before the District Magistrate for disposal of the dead body. Before

disposal of the dead body he took photographs of the dead body and the wearing

apparels/clothes were preserved. Thereafter, the dead body was duly disposed of.

18. According to PW3, he recorded the statement of the driver of the offending

vehicle and the said driver stated before him that the potato laden truck was

proceeding from Nalbari side towards Tezpur. As there was no handyman, the driver

took one person with him in the truck from Nalbari. The accident occurred as the

steering wheel turned towards the left side. The driver saw the said person jumping

from the truck at the time of the accident.

19. From the evidence of PW3, it discloses that an accident occurred on

21/08/2013 at Karaiguri Narikali under Sipajhar PS and one person died due to the

alleged accident. The dead body of an unidentified person was noticed on the spot

of accident. PW3 arrived on the spot after some hours of the accident. He came to

know from the nearby people who gathered on the spot that the truck which was

found on the accidental spot hit the person whose dead body was found on the Page No.# 9/10

spot. If we believe the statement of the person gathered on the spot, we could come

to the conclusion that the deceased was not travelling in the said truck as such

whatever stated by the driver of the offending vehicle cannot be taken into

consideration.

20. Admittedly the driver was arrested by police and he was the right person to

give some light on the fact that how the accident occurred and the person travelling

with him was the deceased husband/father of the claimants. It is not clear from the

evidence of PW3 that the person who died in the accident and the person who was

travelling with the driver was one and the same person. Charge Sheet also did not

disclose the name of the person who died in the accident. Before filing of the charge

sheet the Investigating officer should take initiative to enquire the matter regarding

the name of the deceased. PW3 clearly stated in his evidence that the driver did not

tell him the name of the person accompanying him in the truck from Nalbari. It

reveals that from the photographs and the wearing apparels of the deceased the

claimant Chandan Bezbaruah identified the deceased as his father but the

statement of Chandan Bezbaruah did not reveal that he identified the wearing

apparels /clothes of the deceased. From the evidence of PW-3 it also appears that

he did not know the claimants or the deceased. He never visited the village Akkhara,

Nalbari during investigation. Chandan Bezbaruah did not show any documentary

proof that he is the son of the deceased Biren Bezbaruah.

21. In view of the aforesaid discussion as well as under the facts and

circumstances of the case, I am of the opinion that the claimants have failed to Page No.# 10/10

prove the identity of the person who died in the accident. According to CW1 he

identified the wearing apparels of his father and the photographs available at

Sipajhar Police Station. But the said wearing apparels and the photographs were not

seized during investigation as such no any material is available at the hands of this

Court on the basis of which we could arrive at a conclusion that the deceased was

the husband/father of the claimants.

22. In the result, the appeal is dismissed. The claimants are not entitled to get any

compensation. The Judgment and order passed by the learned member MACT,

Nalbari, dated 29/06/2018 in MAC case no 20(death)/2016 is set aside. The appeal is

disposed of accordingly.

23. Send down the LCR.

JUDGE

Comparing Assistant