Gauhati High Court
MACApp./750/2018 on 22 August, 2022
Page No.# 1/7
GAHC010153482018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
MAC Appeal No. 750/2018
Sri Indra Bahadur Chetri, age 54 years,
S/o Late Man Bahadur Chetri,
Resident of Village-Sutana, P.O.- Khelriat,
District - Jayantia Hills, (Meghalaya),
P.S.- Barpeta Road, District - Barpeta, Assam.
.................. Appellant
-Versus-
Sri Sunil Das,
S/o Sri Suman Das,
C/o Maa Sherawali Travels, Paltanbazar,
Guwahati (Owner of Night Super Bus No. AS-01/R-4577),
PIN - 781001
2. Sri Rajkumar Chetri,
Son of Sri Jagjit Chetri,
Resident of Tengabari, Sonalipam,
Mangaldai, Darrang (Assam),
(Owner of Cruiser No. AS13/A-7773)
Pin- 784125
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3. Sri Ashish Kumar Dey,
Son of Late G.B.Dey,
Resident of Village - H.C. Road, Siliguri,
(WB). (Driver of Night Super Bus No.
AS-01/R-4577) (Driving Licence W.B. 63/38
B234, valid upto 13/08/09) Pin- 784001.
4. Sri Sushanta Subba,
Son of T.B. Subba,
Resident of Village - Jayantia Hills (Meghalaya),
(Driving Licence No. 22632/Shg/2005, valid upto 21.03.2001), Pin -
793150.
5. New India Assurance Company Limited,
Maligaon Chariali Branch, Guwahati,
(Policy No. 53090/31.07.01/00001746 for Night
Super Bus). Pin - 781011.
6. ICICI Lambard General Insurance Co. Ltd.,
Guwahati, Assam.
(Policy No. 3004/53687927/00/000 valid upto
10.03.09 for cruiser) Pin - 781005
....................Respondents.
Advocates for the appellant : Mr J Sarmah
Advocate for the respondent : Mr R Goswami.
BEFORE
HON'BLE MRS. JUSTICE MALASRI NANDI
Date of hearing & Judgment : 22.08.2022.
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JUDGEMENT AND ORDER (ORAL)
Heard Mr J Sarma, learned counsel appearing for the appellant and Mr R Goswami,
learned counsel for the respondent No. 6/Insurance Company.
2. This appeal has been preferred by the claimant/appellant, challenging the dismissal of
Judgment dated 23.04.2018, passed by the learned Member, MACT No. 2, Kamrup (Metro),
Guwahati, in MAC Case No. 822/2009.
3. The appellant as claimant had filed the claim case praying for compensation for the
death of his son in a motor vehicle accident, which took place on 22.06.2008, near Umsaw
Nongkonai at the morning hours, while he was travelling in a cruiser towards Shillong. It is
alleged that the said accident took place due to rash and negligent driving by the driver of
the vehicle bearing Registration No. AS-01/R-4577 (Night Super Bus), as a result of which,
two occupants of the said vehicle sustained grievous injuries on their person, and the son of
the claimant died. The other injured persons filed claim cases before the Tribunal and the
cases were disposed of accordingly on merit.
4. The case of the appellant is that MAC Case No. 822/2009 was fixed for evidence of the
claimant, but the claimant Indra Bahadur Chetri could not reach the Court on the date of his
evidence. As such, the learned Tribunal filed the case till the appearance of the parties. It is
also stated that the appellant/claimant is earning his livelihood by engaging himself as a daily
wage earner. As such, he could not arrive at Guwahati, on the date fixed for evidence, but
later on, he came to Guwahati and on his prayer, the case was restored to file and the
counsel for the claimant took steps for service of notice upon the opposite parties. All the
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opposite parties appeared in the case and the opposite party Nos. 2, 5 and 6 have filed their
written statements in the case. There was no denial of the alleged accident. Subsequently,
the case was refixed on 21.04.2018 and 23.04.2018 for evidence. Due to indisposition of the
learned counsel for the appellant, no steps could be taken on 23.04.2018 and the Tribunal
instead of refixing the case on another date, dismissed the case.
5. I have gone through the order dated 23.04.2018, passed by the learned Member, MACT
No. 2, Kamrup (Metro), Guwahati, in MAC Case No. 822/2009, which reveals that on receipt
of the notice from the Tribunal, opposite party No. 6, i.e., ICICI Lombard General Insurance
Company Limited, the insurer of the vehicle, bearing Registration No. AS-13A/7773 (Cruiser),
contested the case by filing written statement, denying the core fact of the accident as
alleged and also denied receiving of any injury by the claimant. Opposite Party No. 2 also has
submitted written statement. No any specific order is available in the record regarding
Opposite Party Nos. 1, 3, 4 and 5.
6. It reveals from the record of MAC Case No. 822/2009 that OP No. 5/New India
Insurance Company Limited is the insurer of the vehicle, AS-01 4577 (night super bus) and
the opposite party No. 6, ICICI Lombard General Insurance Company Limited is the insurer of
the cruiser, in which the deceased was travelling.
7. As per order dated 23.04.2018, the case was dismissed on the ground that though the
claimant was asked to take steps for service of notice, but the process of service of notice
was not completed on the date of dismissal. The learned Tribunal opined that the claimant
was not interested to proceed with the case and accordingly, dismissed the case on contest.
8. It is no doubt true that the case was pending in the Court since 2009 and the order
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sheet shows that the first order was passed on 13.05.2009 and the case was posted on
27.08.2009, but no order was passed from 27.08.2009. The subsequent order was passed on
23.02.2010, but no reason has been shown in the order, why the case has not been produced
before the Tribunal on the fixed date. The next date was fixed 06.07.2010. On 06.07.2010,
the claimant was represented and on the subsequent dates also, on 22.12.2010, 07.04.2011,
25.05.2012, the claimant was present. On 01.04.2013, the claimant was represented and on
the next date, i.e., on 26.04.2013, the case was fixed for written statement. On 07.06.2016,
the order was passed by the learned Tribunal, stating that the claimant was absent without
steps and the case was filed due to absence of the claimant.
9. It appears from the order sheet that though the case was fixed on 26.04.2013, but no
order was passed in between three years from 26.04.2013 to 07.06.2016 and suddenly, the
case was fixed on 07.06.2016 and the case was filed for the absence of the claimant.
Thereafter, on 05.11.2016, a Misc Case has been registered on the basis of the application
filed by the petitioner/claimant praying for restoration of the case and the case was restored
to file and next date was fixed on 14.02.2017, for service report. On the subsequent dates,
i.e., on 14.02.2017, 18.03.2017, 16.05.2017, 15.06.2017, 15.07.2017, 13.11.2017 and
18.12.2017, the claimant was represented by his counsel. On 27.02.2018, the case was fixed
for written statement and on that day, the claimant was not represented by his counsel. The
next date was fixed on 21.04.2018, for evidence of the claimants. On 21.04.2018, the
claimant was absent without steps and the next date was fixed after 2 (two) days, i.e., on
23.04.2018. On 23.04.2018, the claimant was absent, but the learned Member, MACT,
Kamrup, passed the order by dismissing the case on wrong assumption that on 07.06.2016,
the case was filed by her predecessor in office, for non-appearance of the claimant since long
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time, but the fact is not true.
10. The order sheet shows that after 01.04.2013, no order was passed for 3 (three) years
and it cannot be ascertained from the record of MAC Case No. 822/2009, whether the
claimant remained present or absent during the said period of three years.
11. Learned counsel for the appellant has submitted that the case was dismissed as the
claimant had failed to take proper steps against the respondents in time and another chance
should be given to the claimant to prove his case as the other connected appeal, which had
been instituted on the same set of incident were disposed of on merit and prayed to remand
the case for proper adjudication. Learned counsel for the Insurance Company has supported
the submission of learned counsel for the appellant, by stating that as the Motor Vehicles Act
is a beneficial legislation, as such, the matter should be disposed of on merit.
12. After going through the record, it is observed that that the case record has not been
properly maintained in the Tribunal. There is no explanation available in the record, why the
record of MAC Case No. 822/2009 had not been placed before the learned Member, MACT, for
three years, in between the period from 01.04.2013 to 07.06.2016, which amounts to
miscarriage of justice.
13. Under such backdrop, I am of the opinion that the order passed by the Tribunal dated
23.04.2018, cannot be sustained. Accordingly, it is set aside. The case is remanded back to
the Tribunal with a direction to allow the claimant to take steps against the respondents, who
had not appeared and filed written statement. The parties are directed to appear before the
Member MACT No. 2, Kamrup, at Guwahati, on 26.09.2022 and the Tribunal will proceed with
the case as per provision of law.
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14. It is made clear that the case is pending in the Court since 2009. The Tribunal will
dispose of the matter within six months from the date of receipt of the case record.
15. Registry is directed to send down the LCR, as early as possible.
16. With the aforesaid observations, the appeal is disposed of.
JUDGE
Comparing Assistant
