National Insurance Co. Ltd vs Smti Rupa Devi And 3 Ors
2022 Latest Caselaw 3473 Gua

                                                                    Page No.# 1/7

GAHC010162942019




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

                         Case No. : MACApp./662/2022

         NATIONAL INSURANCE CO. LTD
         HAVING ITS REGISTERED OFFICE AT MIDDLETON STREET, KOLKATA AND
         ONE OF THE REGIONAL OFFICES KNOWN AS GUWAHATI REGIONAL
         OFFICE AT G.S. ROAD, BHANGAGARH, GUWAHATI-5, ASSAM.



         VERSUS

         SMTI RUPA DEVI AND 3 ORS
         W/O- SRI RAJEN SARMAH, PERMANENT R/O- VILL.- TULSIJAN,
         PAHUMARA GAON, P.O. BAMUN PUKHURI, P.S. TEOK, DIST.- JORHAT,
         ASSAM, PIN- 785683 AND TEMPORARY ADDRESS- C/O- HOUSE NO. 15/A,
         SRI PRASANTA KR. SARMAH, CHANDMARI, MILANPUR, GUWAHATI, P.S.
         CHANDMARI, DIST.- KAMRUP(M), ASSAM, PIN- 781003.

         2:SRI RAJ KUMAR JHAWAR
          S/O- LATE SATYANARYAN JHAWAR
          C/O- STATIONARY HOUSE (RUPAHI ALI)
          P.S. AND P.O. JORHAT
          DIST.- JORHAT
         ASSAM
          PIN- 785001. (OWNER OF THE VEHICLE NO. AS-03/AC-2113 (BOLARO PICK
         UP VAN).

         3:SRI BINOD DAS
          S/O- SRI RABIN DAS
         VILL.- RAJATIA
          P.O. KOROKATOLI
          P.S. AND DIST.- JORHAT
         ASSAM
          PIN- 785108. (DRIVER OF THE VEHICLE NO. AS-03/AC-2113 (BOLARO PICK
         UP VAN).
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            4:BRANCH MANAGER
            THE ORIENTAL INSURANCE CO. LTD.

            BRANCH OFFICE
            JORHAT
            P.O.
            P.S. AND DIST.- JORHAT
            ASSAM
            PIN- 785001. (INSURER OF THE VEHICLE NO. AS-03/Q-1269 (MOTOR
            CYCLE)

Advocate for the Petitioner   : MR C PHUKAN

Advocate for the Respondent : MR B SHARMA (R-1)




                                    BEFORE
                     HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                                        ORDER

Date : 12-09-2022

Heard Mr. C Phukan, the learned counsel for the appellant. Also heard Ms. J Ghosh, the learned counsel for respondent No.1, Mr. RK Jain, the learned counsel for respondent No.2 and Mr. S Dutta, the learned counsel for respondent No.4.

2. It is seen from the impugned judgment and award dated 29.11.2018 passed in MAC Case No.276/2015 that the opposite party No.2 i.e., the respondent No.3 herein did not contest the said proceedings.

3. This is an appeal under section 173 of the Motor Vehicles Act, 1988 challenging the judgment and award dated 29.11.2018 passed by the Member, MACT No.III, Kamrup (M) at Guwahati in MAC Case No.276/2015, thereby awarding an amount of Rs.10,69,600/-only with interest 7.5% per annum from the date of filing of the amended claim Page No.# 3/7

petition.

4. The issue involved herein is who would be liable to pay the compensation to the claimant.

5. A perusal of the impugned judgment and award shows that the respondent No.2 (owner) herein who was the OP No.2 had filed the written statement denying the claim of the claimants and further stating inter alia that the vehicle in question was duly insured with the National Insurance Company Ltd, the appellant herein, having a valid policy covering up to midnight of 07.06.2015. It was also mentioned in the written statement that the Respondent No.2 was not responsible to pay any compensation and in the event of any compensation awarded by the tribunal, in view of the insurance policy it is the appellant who has to pay the OP No.3 i.e., the appellant herein had filed the written statement denying the claim of the claimant by taking the plea that after going through the investigation report it is found that the driver of the pickup bearing No.AS-03-AC- 2113 namely Binod Das did not have any valid driving license at the relevant time because the DL No.26444/T/TV/10 issued from the DTO, Tuensang, Nagaland was found without having any record in the office as mentioned. It was mentioned that as the owner of the vehicle violated the condition of the policy and as such, the Appellant company cannot be saddled with the liability.

6. The OP No.4 i.e., the Oriental Insurance Co. Ltd by filing a Page No.# 4/7

written statement denied the claim of the claimant by taking the plea that the motor cycle bearing No.AS-03-Q-1269 or the pickup bearing No.AS-03-AC-2113 had no effective insurance coverage till the validity of the insurance policy mentioned in the claim petition.

7. The driver of the vehicle i.e., the Respondent No.3 herein, however, did not appear and contest the proceedings.

8. The Tribunal below on the basis of the pleadings framed as many as two issues which were as under:

"I) Whether Dadu Sarma died in the alleged road accident dated 05.10.2014 at Hachara under Teok PS involving vehicle No.AS-03- AC-2113 (pickup van) and AS-03-Q-1261 or whether the said accident took place cue to rash and negligent driving of the driver of any one vehicle?

II) Whether the claimant is entitled to any compensation, if yes, to what extent and from whom?"

9. The claimant adduced evidence. On behalf of the OP No.3 i.e., the Appellant, adduced evidence through its administrative officer who was looking after the legal affairs of the company. However, it is seen that the investigator did not adduce any evidence. At this stage it is relevant to take note of an order dated 27.11.2018 passed by the Member, MACT No.3 in the said proceedings. A perusal of the said order reveals that both in MAC Case No.275/2015 and MAC Case No.276/2015, the appellant Insurance Company had filed an application to allow them to examine the DTO, Tuensang, Nagaland to Page No.# 5/7

prove the certificate to the effect that DL bearing No. 26444/T/TV/10 was a fake license as no records were found in respect to the said driving license. However, the tribunal below on the ground that it would delay the disposal of the claim proceedings rejected the said prayer.

10. Now coming to the impugned judgment and award, it would seen, more particularly at paragraph No.13 therein that the document in question issued by the DTO, Tuensang, Nagaland was not taken into consideration on the ground that the same was not proved through the DTO, Tuensang and the said letter appears to have been written in plain paper only with the signature of the alleged DTO that too without any date.

11. The learned counsel for the appellant submits that had the tribunal permitted to examine the DTO, Tuensang, Nagaland to prove the certificate, the appellant could have proved that the said driving license in question was fake and was not issued by the said office of the DTO, Tuensang, Nagaland. The rejection of by the tribunal below to call for the DTO, Tuensang, Nagaland have led to gross failure of justice and on the basis thereof the appellant company had been saddled with the liability though the appellant company is not required to make any payment as there was an apparent violation to the conditions of the insurance policy.

12. Upon hearing the learned counsel for the parties, this Court is Page No.# 6/7

of the opinion that the order dated 27.11.2018 whereby the appellants' application to call the DTO, Tuensang, Nagaland was rejected on the ground that it would delay the claim proceedings in the opinion of this Court is erroneous and requires interference inasmuch as, the said document which was alleged certificate issued by the DTO, Tuensang, Nagaland, was the entire basis of the defence of the Appellant company. The said document could only have been proved either by the DTO, Tuensang, Nagaland or any office staff of the DTO, Tuensang, Nagaland who recognize the signatures of the DTO.

13. The observations made in paragraph No.13 of the impugned judgment and award whereby the defence which was based upon the alleged certificate of the DTO, Tuensang, Nagaland was rejected, is a fallout of the order dated 27.11.2018. Under such circumstances, this Court is of the opinion that the interest of justice would be met, if the case is remanded back to the tribunal below by setting aside the judgment and award dated 29.11.2018, the Tribunal to decide afresh by permitting the appellant/opposite party No.3 to call the DTO, Tuensang, Nagaland or any office staff of the particular office to prove the certificate dated 09.07.2015 issued by the DTO, Tuensang, Nagaland. Accordingly, in view of the observations made herein above, the judgment and award dated 29.11.2018 passed in MAC Case No.276/2015 requires interference and are hereby set aside.

14. Taking into account the order passed herein, the parties are directed to appear before the tribunal below on 26.09.2022.

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Thereupon, the tribunal shall on the basis of the directions and observations made herein above, permit the appellant/OP No.3 to call for the DTO, Tuensang, Nagaland or any other officials of that particular office to prove the alleged certificate dated 09.07.2015. It is further observed that owner may also be permitted, if so advised, to adduce evidence to the effect that the Respondent No.3 (Driver) had a valid driving license. The tribunal shall dispose of the said claim proceedings as early as possible preferably within a period of 6 months from the date of appearance of the parties.

15. The appeal stands disposed off.

JUDGE

Comparing Assistant