Oriental Insurance Company ... vs Smti Ganga Chetry And 4 Ors
2023 Latest Caselaw 326 Gua

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GAHC010133912017




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

                       Case No. : MACApp./351/2017

         ORIENTAL INSURANCE COMPANY LIMITED
         A CO. REGISTERED AND INCORPORATED UNDER THE COMPANIES ACT,
         1956 HAVING ITS REGISTERED OFFICE AT ORIENTAL HOUSE, A 25/27 ASAF
         ALI ROAD, NEW DELHI-2 WITH ONE OF ITS REGIONAL OFFICE AT G.S.
         ROAD, ULUBARI, GUWAHATI-7, REPRESENTED BY ITS REGIONAL
         MANAGER



         VERSUS

         SMTI GANGA CHETRY and 4 ORS
         W/O LATE GAHIN CHETRY

         2:SMTI ISHA KOUSHIK CHETRY
          D/O LATE GAHIN CHETRY

         3:SMTI TANKAMAYA CHETRY
          D/O LATE GAHIN CHETRY
         ALL ARE PERMENENT R/O BOKAKHAT HOSPITAL ROAD
          BOKAKHAT TOWN
          P.O. and P.S. BOKAKHAT
          DIST. GOLAGHAT
         ASSAM.

         4:EASTLAND CONCRETE INDUSTRIES

          C/O PROPRIETOR
          SRI NAND KISHOR MAHESWARY
          NEAR SURVER SCHOOL
          WEST JALUKBARI
          P.S. JALUKBARI
          GUWAHATI-4
          DIST. KAMRUP
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             ASSAM.

            5:GAUTAM CHETRY

             S/O LATE MAN BAHADUR CHETRY
             R/O and P.O. AMALIGHAT
             P.S. JAGIROAD
             DIST. MORIGAON
             ASSAM

Advocate for the Petitioner    : MR.R C PAUL

Advocate for the Respondent : MR.M DUTTAR- 1-3

PRESENT THE HON'BLE MR. JUSTICE PARTHIVJYOTI SAIKIA

For the Appellant : Mr. R.C. Paul, Advocate.

             For the Respondent(s)                 :    Mr. M. Dutta,
                                                       Advocate.

             Date of Hearing                       :   24.01.2023.
              Date of Judgment                     :    27.01.2023.


                              JUDGMENT AND ORDER (CAV)

Heard Mr. R.C. Paul, learned counsel representing the appellant as well as Mr. M. Dutta, learned counsel appearing for the respondent(s).

2. This is an appeal under Section 173of the Motor Vehicles Act, 1988 against the judgment dated 12.11.2015 passed by the learned Member, Motor Accident Claims Tribunal, Golaghat in MAC Case No.131/2011.

3. On 21.01.2011 at about 5 P.M., Lt. Gohain Chetri was a pillion driver in Page No.# 3/5

a motorcycle bearing registration No.AS-01-AH-9110, which was driven by Gautam Chetri. Near Routa Police Station, the motorcycle dashed against a cow. As a result, Gohain Chetri sustained serious injuries. He was taken to Mangaldai Civil Hospital and thereafter to the Guwahati Medical College and Hospital but he died due to the injuries sustained by him. On the basis of the said accident, Routa Police Station GDE No.574 dated 21.01.2011 and GDE No. 586 dated 21.01.2011 were registered.

4. The motorcycle driven by Gautam Chetri was owned by the respondent no.2 Eastland Concrete Industries. Both respondent no.2 as well as the respondent no.3 Gautam Chetri contested the claim case by filing written statements. Both of them claimed that the motorcycle was insured.

5. The Insurance Company separately contested the claim case by filing a written statement.

6. The Tribunal framed the following issues:

i. Whether the motor vehicle bearing registration no.AS-01-AH- 9110 was driven by its driver in a rash and negligent manner?

ii. Whether the death caused to Gohain Chetri occurred in a motorcycle accident as a result of rash and negligent driving of the motorcycle by its driver?

iii. Whether the claimants are entitled to compensation, a claimed for? If so, what would be just and fair compensation to be awarded in favour of the claimants?

     iv.     Any other relief/reliefs?
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7. During the hearing stage, the respondents examined three witnesses.

The appellant Insurance Company did not examine any witnesses.

8. Finally, the trial court awarded a compensation of Rs.24,41,280/- (Rupees Twenty Four Lakh Forty One Thousand Two Hundred Eighty) to the claimants/respondents.

9. I have given my anxious considerations made by the learned counsels of both sides.

10. The appeal has been filed upon two grounds. The first ground is that the GDE Nos.574 and 586 dated 21.01.2011 did not contain the name of the driver of the motorcycle as well as the name of the pillion rider. The second ground is that the pillion rider died due to head injuries because he did not wear the protective helmet.

11. At the hearing stage in the Tribunal, the Insurance Company did not raise these issues.

12. The learned counsel Mr. Dutta has relied upon a decision of the Supreme Court that was delivered in Sunita and Ors. versus Rajasthan State Road Transport Corporation and Ors., reported in (2020) 13 SCC

486. In this judgment, the Supreme Court has held that in a case before a Motor Accident Claims Tribunal, the claimants are to prove the case on the touchstone of preponderance of probability.

13. Interestingly, in the written statement, the Insurance Company has denied the manner in which the alleged accident took place but did not deny that Gohain Chetri died because of the said accident.

13. The claimants have examined three witnesses in the Tribunal and on Page No.# 5/5

the basis of the evidence on record, the Tribunal has passed the impugned judgment. There is nothing wrong in the impugned judgment. The learned Tribunal has correctly appreciated the evidence and has arrived at a correct finding.

14. I find that there is no merit in this appeal. The appeal stands dismissed accordingly.

Send back the LCR.

JUDGE

Comparing Assistant