The Oriental Insurance Co. Ltd vs Sri Uday Chandra Das And 2 Ors
2022 Latest Caselaw 4217 Gua

                                                                      Page No.# 1/3

GAHC010195712017




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

                                Case No. : MACApp./204/2017

            THE ORIENTAL INSURANCE CO. LTD
            A COMPANY REGISTERED UNDER THE COMPANIES ACT 1856,
            REPRESENTED BY ITS CHIEF REGIONAL MANAGER, ULUBARI,
            GUWAHATI-7, DIST. KAMRUP, ASSAM.



            VERSUS

            SRI UDAY CHANDRA DAS and 2 ORS
            S/O LATE GIRINDRA DAS, R/O VILL. KUSHLAIGURI, P.S. MANIKPUR, DIST.
            BONGAIGAON, ASSAM.

            2:PADMALOSAN SARKAR

             S/O MON MOHAN SARKAR
             VILL. NO. 2 JHAR BHALAGAON
             P.S. BONGAIGAON
             DIST. BONGAIGAON
             ASSAM.

            3:SWARUP MOHAN DAS

             S/O LATE NAMALESWAR DAS
             VILL. PATILADOHA
             P.S. MANIKPUR
             DIST. BONGAIGAON
             ASSAM

Advocate for the Petitioner   : MR.R KATHKATIA

Advocate for the Respondent :
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                                   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.3 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.2 has not yet been effected. From a perusal of the record, it appears that the respondent No.2 is the driver of the offending vehicle. It further appears that respondent No.2 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.2 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 has 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.

Accordingly, the name of the respondent No.2 is struck off. The Registry is directed to make necessary correction in the records on the basis of the instant order.

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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