Mrs Kadamai Das vs The Regional Manager
2022 Latest Caselaw 4443 Gua

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GAHC010167992017




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

                                Case No. : MACApp./134/2018

            MRS KADAMAI DAS
            R/O NO. 3 TALABAJAR, P.S. KAKI, DIST. NAGAON, ASSAM.



            VERSUS

            THE REGIONAL MANAGER,
            UNITED INDIA INSURANCE CO. LTD. G.S. ROAD, BHANGAGARH,
            GUWAHATI-5 (INSURER OF TRUCK NO. BR-06-G-5709 VIDE POLICY NO.
            131001311P107503468 VALID UP TO 14.02.2015 ISSUED FROM BRANCH
            MANAGER, U.I.I. CO LTD. NAGAON BRANCH.

            2:NARSINGH BHAGAT
            A.T. ROAD
             KHUTIA
             P.S. NAGAON
             DIST. NAGAON
            ASSAM
             OWNER TRUCK NO. BR-06-G-5709 PIN 782120

            3:BISWANATH RAY
            VILL. RAJHAPUR P.S. KESHAARIYA
             DIST. MATHARI BIHAR
             (DRIVER OF BR-06-G-5709 TRUCK) PI

Advocate for the Petitioner   : MR. I A TALUKDAR

Advocate for the Respondent : MR. K K BHATTA
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                                 BEFORE
                HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY

                                     ORDER

14.11.2022

Heard Mr. I. A. Talukdar, learned counsel for the appellant. Also heard Mr. R. K. Bhatra, learned counsel of the respondent No. 1 and Mr. M. Talukdar, learned counsel for the respondent No. 2, the owner of the Truck.

2. The appellant and her minor daughter preferred MAC Case No. 439/2014 under M.V.Act , 1988, before the learned Member, MACT, Nagaon, claiming compensation from the respondents herein inter alia alleging that the driver of the vehicle bearing Registration No. BR-06/G-5709, by driving in a rash and negligent manner dashed the husband/father of the claimants which resulted in his death.

3. The respondents / insurance as well as the owner had contested the case. The claimants to prove their case, laid evidence of the claimant No. 1 as PW-1 and exhibited 3 (three) documents i.e. certified copy of the F.I.R. regarding the accident, the Charge-Sheet filed by the police arising out of the said F.I.R., Post Mortem report of the deceased and the accident information report.

4. The insurance company examined DW-1, namely Phulak Ranjan Bhuyan, who was the Insurance Investigator. They also exhibited some documents like authority letter, authorizing said Phulak Ranjan Bhuyan to depose, RTI reply through which the insurance company obtained the extract of GD Entry relating to the incident.

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5. After considering the materials available on record, the learned Tribunal below had dismissed the claim petition on the ground that the DW-1, Phulak Ranjan Bhuyan, investigator of the insurance company deposed and exhibited GD Entry No. 751 dated 25.06.2014 and the said G. D. Entry nowhere discloses involvement of the truck in the accident rather the G.D. Entry No. 756 dated 26.06.2014, revealed that police went to the place of occurrence and noted involvement of one Tempo vehicle bearing No. As-02/AC-3042. As the claimant failed to implead the owner, insurer and driver of the aforesaid Tempo vehicle, the learned Tribunal below came to a finding that in absence of such party, the claim cannot be determined, accordingly, same was dismissed.

6. This Court has perused the records and exhibits. The G.D. Entry No. 751 dated 25.06.2014 reflects that some person who was not inclined to disclose his identity informed the Police Station that one Tempo vehicle met with an accident near Nagina Petrol Pump and a person died at the spot and some other people got injured. Accordingly, the said G.D.Entry was created.

7. The G.D. Entry No. 756 dated 26.06.2014 reflects that one SI, M. Sharma entrusted the investigation arising out of the accident upon one ASI, R. Bordoloi. The G.D. Entry No. 756 reflects that vehicle bearing registration No. AS-02-AC-3042, while going to Lanka met with an accident and as a result, the father of the driver namely Nagen Das died on the spot and the driver Dharanidhar Das got injured. Thus the aforesaid three G. D. Entry discloses that the Tempo vehicle met with an accident. The accident information report which was exhibited discloses involvement of the truck bearing registration No. BR-06- G-5709. The F.I.R. also discloses that the Tempo vehicle was hit by the truck. The Charge-sheet was filed after investigation and it reflects that while the Page No.# 4/5

Tempo vehicle was standing on the road and the deceased was talking with the driver of the Tempo, the vehicle bearing registration No. BR-06-G-5709 coming from the opposite side hit the deceased as a result of which, Sri Nagen Das died on the spot and there were massive damage to the Tempo vehicle. Accordingly, investigation was started and during investigation, it was found that the driver of the vehicle (Truck) bearing registration No. BR-06-G-5709 was driving in a rash and negligent manner.

8. In view of the above factual matrix, this Court is constrained to hold that the learned Tribunal below has committed illegality in not considering all the aforesaid materials and straightway dismissed the claim only on the basis of the G.D. Entry No. 756.

9. On bare reading of the G.D. Entry, it nowhere discloses that the vehicle bearing registration No. AS-02-AC-3042, hit the deceased. What was disclosed in the G.D. Entry was that one Tempo met with an accident and nothing more. However, the charge-sheet filed after investigation clearly reflects that the Truck hit both the tempo and the deceased inasmuch hitting the Tempo will also mean that the Tempo vehicle met with an accident and the G.D. Entry reflects that the Tempo vehicle met with an accident. How the same was met with an accident, what was the detail is not available inasmuch as such G.D. Entries were created on the basis of information received from some unknown persons and after investigation the charge sheet was filed against the driver of the Truck.

10. In view of the aforesaid, this Court is of the considered opinion that the learned Tribunal below has committed illegality in dismissing the claim petition. Accordingly, the impugned judgment dated 17.09.2016 passed in MAC Case No. 439/2014 by the learned Member, MACT, Nagaon, is set aside and quashed and Page No.# 5/5

the matter is remanded back to the learned Tribunal below to pass afresh judgment on the materials available on record.

11. Return the LCR.

JUDGE

Comparing Assistant