Icici Lombard General Insurance ... vs Mustt. Safatun Nessa And 8 Ors
2022 Latest Caselaw 1816 Gua

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GAHC010006482011




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

                       Case No. : MACApp./111/2011

         ICICI LOMBARD GENERAL INSURANCE COMPANY LTD.
         HAVING ITS REGISTERED OFFICE and HEAD OFFICE AT ICICI BANK
         TOWERS, BANDRA KURLA COMPLEX, MUMBARI 400051, ITS ZONAL
         OFFICE AT APEEJAY HOUSE, 15 PARK STREET, 7TH FLOOR, KOLKATA
         700016, AND A BRANCH OFFICE AT MAYUR GARDEN, G.S. ROAD,
         BHANGAGARH, GUWAHATI-781005 AND REPRESENTED BY THE ZONAL
         MANAGER, KOLKATA ZONAL OFFICE



         VERSUS

         MUSTT. SAFATUN NESSA and 8 ORS
         W/O LATE ALIM UDDIN LASKAR

         2:MD. NUR AHMED LASKAR

          S/O LATE ALIM UDDIN LASKAR.

         3:MD. ANOWAR HUSSAIN LASKAR

          S/O LATE ALIM UDDIN LASKAR.

         4:MISS NAZMA BEGUM LASKAR

          D/O LATE ALIM UDDIN LASKAR.

         5:MISS NAZIMA BEGUM LASKAR

          D/O LATE ALIM UDDIN LASKAR.

         6:MISS AZIMA BEGUM LASKAR

          D/O LATE ALIM UDDIN LASKAR.
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             7:MISS SAZINA BEGUM LASKAR

             D/O LATE ALIM UDDIN LASKAR.

             8:MUSTT. MAYARUN NESSA

             M/O LATE ALIM UDDIN LASKAR
             W/O LATE TAYAB ALI LASKAR
             ALL ARE R/O VILL. RAMNAGAR
             PECHADAHAR
             P.S. SILCHAR
             DIST. CACHAR
             ASSAM.

             9:M/S ASTIR IMPEX PVT. LTD.

             SRIMANTA MARKET
             2ND FLOOR
             ROOM NO. 265
             A.T. ROAD
             GUWAHATI-781001
             ASSAM.OWNER OF THE VEHICLE NO. AS-24/646

Advocate for the Petitioner   : MR.D K DAS

Advocate for the Respondent : MR.D CHAKRABARTY

BEFORE HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

JUDGMENT AND ORDER 26.05.2022

Heard Mr. R. Goswami, learned counsel representing the appellant as well as Mr. S. Dutta, learned counsel appearing for the respondents.

2. This is an appeal under Section 173 of the Motor Vehicles Act, 1988 (as amended) against the Judgment and Award dated 12.08.2009 passed by the MACT, Cachar, Silchar in MAC Case No. 1244/2007.

3. On 16.08.2007, Alim Uddin Laskar was driving a vehicle bearing registration no.

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AS-24-6465 loaded with cement towards Aizwal. The vehicle belonged to Barak Valley Cement Limited. At one place, the vehicle capsized because of mechanical fault and fell into a gorge. Alim Uddin died instantly.

4. Accordingly, a claim petition was filed before the Tribunal.

5. The owner of the truck contested the claim case by filing a written statement. It claimed that the vehicle was insured under the appellant insurance company.

6. The appellant insurance company also contested the case by filing a separate written statement.

7. The appellant claimed that the driver of the vehicle had no valid driving license at the time of occurrence nor had any required documents.

8. Although Motor Accident Claim Tribunals are guided by the procedure as laid down by the CPC, in the case in hand, the Tribunal did not frame any issues upon the pleadings of the parties.

9. The claimants examined one witness and the appellant also examined one witness.

10. On the basis of the evidence on record, the Tribunal awarded a compensation of Rs.5,21,500/- along with interest @ 6% per annum to be calculated from the date of filing of the claim petition.

11. The appellant filed this appeal primarily on the ground that the vehicle carried excessive weight. According to the appellant, the vehicle was authorized to carry 10 MT of goods but on the day of occurrence the vehicle carried 19 MT of goods. The appellant termed this act as a violation of policy condition.

12. I have given my anxious consideration to the submissions made by the learned counsels for both the sides.

13. At this stage, the evidence of the witness examined by the insurance appellant company is relevant. The witness was Chandan Dutta. He worked as an Insurance Surveyor and Investigator for the appellant.

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14. In his evidence, Chandan Dutta has stated that the weight of the vehicle was 6200 kg. and with goods the vehicle weighing 16,200 kg. The witness has stated that the vehicle had the capacity to carry 10 Ton goods and it carried 19 Ton goods. The witness has clarified that the vehicle capsized because of overload.

15. Here, a question arises as to where is the evidence that the vehicle carried goods weighing 19000 kg. at the time of occurrence.

16. The evidence of Chandan Dutta as well as his Report i.e. Ext. B, which was prepared by him are without any supporting evidence. Under such a circumstance, the evidence of Chandan Das cannot be held to be sacrosanct.

17. This Court finds that the claim that the vehicle carried goods weighing 19000 kg is without any basis and evidence.

18. Since the plea of the appellant failed, the appeal also fails.

19. Accordingly, the appeal is found to be devoid of merit and stands dismissed accordingly.

20. Send back the LCR.

JUDGE

Comparing Assistant