The Oriental Insurance Co Ltd vs Smti Malati Barman And 4 Ors
2022 Latest Caselaw 4216 Gua

                                                                Page No.# 1/3

GAHC010195712017




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

                        Case No. : MACApp./207/2017

         THE ORIENTAL INSURANCE CO LTD
         A COMPANY REGISTERED UNDER THE COMPANIES ACT
         1956
         REP. BY ITS CHIEF REGIONAL MANAGER
         ULUBARI
         GUWAHATI- 7
         DIST. KAMRUP
         ASSAM


          VERSUS

         SMTI MALATI BARMAN and 4 ORS
         W/O LT. KLHOKA BARMAN

         2:MISS. SWAPNA BARMAN

         3:SRI ISWAR BARMAN
         NO. 1 IS THE WIFE AND NO. 2 AND 3 ARE MINOR DAUGHTER AND SON OF
         LT. KHOKA BARMAN
         SINCE SON AND DAUGHTER ARE MINORS SO THEY ARE REP. BY THER
         MOTHER. ALL ARE RESIDENT AT VIL- 2 NO. DAILANGJHAR
         P.S. BIJNI
         DIST. CHIRANG BTAD
         ASSAM
         4:SRI PADMALOSAN SARKAR
         S/O MON MOHAN SARKAR VILL- NO. 2 JHAR BHALAGAON P.S.
         BONGAIGAON DIST. BONGAIGAON
         ASSAM
         5:SRI SWARUP MOHAN DAS
         S/O LT. NAMALESWAR DAS VILL- PATILADOHA
         P.S. MANIKPUR
         DIST. BONGAIGAON
         ASSAM
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            ------------
            Advocate for : MR.N BARMAN
            Advocate for : appearing for SMTI MALATI BARMAN and 4 ORS



                                   BEFORE
                    HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                        ORDER

Date : 02.11.2022

Heard Mr. S. K. Goswami, the learned counsel appearing on behalf of the appellant and Mr. S. Das, the learned counsel appearing on behalf of the claimants. None appears on behalf of the owner who is the respondent No.5 in the instant proceedings in spite of the service of notice upon the owner being effected.

The office note reveals that the service upon the respondent No.4 has not yet been effected. From a perusal of the record, it appears that the respondent No.4 is the driver of the offending vehicle. It further appears that respondent No.4 also did not appear before the tribunal and contest in the claim proceeding. It also appears from the judgment and award that the Tribunal below held that the offending vehicle was insured with the appellant Insurance Company at the time when the accident have taken place and the driver i.e. the respondent No.4 herein had a valid driving license. The pivotal issue in the instant appeal is as to whether the claimant was a gratuitous passenger. Taking into account that the driver in question have not participated before the Tribunal in the claim proceedings, the provisions of Order XLI Rule 14(4) of the Code of Civil Procedure, 1908 and that the owner is a party to the instant proceedings upon whom service have been duly effected, this Court is of the opinion that the appeal can be decided in absence of the driver.

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Accordingly, the name of the respondent No.4 is struck off. The Registry is directed to make necessary correction in the records on the basis of the instant order.

Taking into account that in view of the instant order, the service is duly complete and the records have been duly received, let the matter be listed for hearing on 06.12.2022.

JUDGE

Comparing Assistant