Gauhati High Court
Maznur Ali vs Smti Jonali Das And 8 Ors on 4 January, 2023
Page No.# 1/6
GAHC010012012017
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp./55/2017
MAZNUR ALI
S/O BAHAR ALI, VILL. BHOGPUR, P.O. and P.S. GORESWAR, DIST. BAKSA,
ASSAM, PIN 781366
VERSUS
SMTI JONALI DAS and 8 ORS
W/O HEMANTA DAS, VILL. GURMOW, P.O. and P.S. GORESWAR, DIST.
BAKSA, ASSAM, PIN 781366
2:HEMANTA DAS
S/O LATE KALIRAM DAS
VILL. GURMOW
P.O. and P.S. GORESWAR
DIST. BAKSA
ASSAM
PIN 781366
3:ACHYUT DAS
S/O BHABANI DAS
VILL. GURMOW
P.O. and P.S. GORESWAR
DIST. BAKSA
ASSAM
PIN 781366
4:GOGEN CH. KALITA
S/O SRI KALIRAM KALITA
VILL. LAKRA BARNAGAR
Page No.# 2/6
P.O. and P.S. GORESWAR
DIST. BAKSA
ASSAM
PIN 781366
5:MD. MUKUL HASSAN
S/O LATE AMIR ALI
VILL. PIALIKATA
P.O. and P.S. BAIHATA CHARIALI
DIST. KAMRUP R
ASSAM
PIN 781381
6:THE BRANCH MANAGER
ORIENTAL INSURANCE CO. LTD.
CITY DIVISION
OFFICE NO. 1 ML NEHRU ROAD
PANBAZAR
GUWAHATI-781001
7:THE REGIONAL MANAGER
ORIENTAL INSURANCE CO. LTD.
ULUBARI
GUWAHATI-781007
8:THE BRANCH MANAGER
UNITED INDIA INSURANCE CO. LTD. N.T. ROAD
RANGIA
DIST. KAMRUP R
ASSAM
PIN 781354
9:THE REGIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD.
PANBAZAR
GUWAHATI-78100
Advocate for the Petitioner : MR.E HUSSAIN
Advocate for the Respondent : MSP DEKA(R- 1-4)
Page No.# 3/6
BEFORE
HON'BLE MR JUSTICE ARUN DEV CHOUDHURY
For the Appellant : None appears.
For the Respondents : Mr. R. C. Paul, Advocate,
Ms. C. Mozumdar, Advocate.
Date of Hearing : 04.01.2023
Date of Judgment : 04.01.2023.
JUDGMENT & ORDER (ORAL)
Mr. M. S. Mandal, learned counsel appearing on behalf of Mr. D. A. Kaiyum,
learned counsel submits that the client/appellant has taken away the brief from
them. Also heard Mr. R. C. Paul, learned counsel for the respondent No. 6 and
Ms. C. Mozumdar, learned counsel for the respondent Nos. 8 and 9. None
appears for the other respondents though notice has duly been served.
2. The accident took place on 07.03.2014, the claim was awarded on
13.10.2016. This matter is pending in this Court since 2017. Record reflects that
no new counsel has been engaged after return of the brief as submitted by the
learned counsel. In that view of the matter, this Court shall proceed with the
matter on its own merit.
3. The present appeal is preferred against the Judgment and Order dated
13.10.2016, passed in MAC Case No. 854/2014 by the learned Member of MACT,
No. 2, Kamrup,(M) at Guwahati.
4. The claimant's case in brief is that on 07.03.2014, at about 05:00 PM, while
the deceased, son of the claimant was proceeding towards Goreswar in a motor
cycle bearing registration No. AS-01-BD-9587 as pillion rider, the offending Bus
bearing registration No. AMP-1823 dashed the motor cycle from behind and as a
Page No.# 4/6
result of which, the deceased sustained grievous injury and died on the spot. It
is the claim of the claimant that the accident occurred due to rash and negligent
driving of the bus.
5. The owner and the driver of the offending vehicle filed their written
statement and took a stand that as the motor cycle was duly insured and was
driven by a person with a valid driving license and, therefore, the insurance
company of the motor cycle is liable to pay the compensation. It was further
stand that the Bus was driven by a driver having valid license and that Bus was
duly insured with the Insurance Company namely United India Insurance
Company Limited, i.e. respondent Nos. 8 and 9. The claimant also laid their
evidence.
6. After completion of the trial, the learned Tribunal below held that the
offending Bus bearing registration No. AMP-1823 dashed the motor cycle
bearing registration No. AS-01-BD-9587 from behind, in which the deceased
Lohit Das was travelling as pillion rider and caused death.
7. The learned Tribunal below after perusal of the materials and evidence,
came to a conclusion that the Insurance policy of the offending Bus was issued
on 12.03.2014 with validity up to 11.03.2015, and the accident occurred on
07.03.2014. Therefore, the said policy does not cover any third party on the
date of accident and hence the Insurance Company is not liable to pay.
8. Being aggrieved by such finding, the present appeal has been filed by the
owner of the Bus.
9. The basic ground pleaded in the memo of appeal are that:-
(i) Two vehicles were involved but the learned Tribunal below did
not consider such fact inasmuch as this was a case of composite
Page No.# 5/6
negligence and even if, no insurance policy was there then, half of the
liability ought to have been fastened on the insurer of the motor cycle.
(ii) The appellant has already paid an amount of Rs. 80,000/- to the
claimants on humanitarian ground for assistance and funeral expenses
and the same should be deducted from the award.
(iii) It is the further case that even if it is held that the owner is liable
to pay, then also the learned Tribunal below has committed serious
error by awarding such huge compensation inasmuch as the deceased
was a student of Class-VIII and he did not have any monthly income.
10. Mr. R. C. Paul, learned counsel for the respondent No. 6 i.e. the Oriental
Insurance Co. Ltd., the insurer of the motor cycle submits that there is no iota
of evidence on record to suggest a case of composite negligence inasmuch as it
is an established and proved case that the driver of the offending Bus drove the
Bus in rash and negligent manner and hit the motor cycle from behind.
Therefore, there cannot be any case of composite negligence. Accordingly, the
learned Tribunal below has rightly awarded the compensation.
11. This Court has given anxious consideration to the submissions made by the
learned counsel for the parties. Also perused the materials available on record
including the evidences and the insurance policy.
12. The appellant has not disputed that on the date of the accident, the vehicle
was not covered by any insurance policy rather the appellant is trying to project
a case of composite negligence as well as on the quantum of the compensation.
13. The materials available on record, nowhere discloses any payment of
compensation on its own volition by the owner of the offending vehicle.
Page No.# 6/6
Therefore, the contention of the appellant that already an amount of Rs.
80,000/- has been paid is rejected.
14. So far coming to the composite negligence, this Court is in total agreement
with the argument of Mr. R. C. Paul, learned counsel for the respondent No. 6,
that the motor cycle was dashed from behind. The materials available on record
including the deposition of the witnesses clearly establishes that the offending
Bus was driven in rash and negligent manner and it dashed the motor cycle
from behind and there was no fault on the rider of the motor cycle. Therefore,
this Court is of the considered opinion that this is not a case of any composite
negligence and the learned Tribunal below has rightly passed the award.
15. This Court also do not find the amount of compensation awarded to be not
just compensation inasmuch as in case of death of a minor, though the income
may not be ascertained, however, the other considerations such as pain and
shock of the parents, frustration, deprivation of love of the deceased children
are relevant and in that view of the matter, this Court is of the considered
opinion that the compensation awarded by the Tribunal below is equitable, fair
and reasonable and the amount determined by the learned Tribunal below
cannot be said to be a windfall or bonanza to the claimant.
16. Accordingly, this Court finds no merit in the present appeal and same is
dismissed.
17. Parties to bear their own cost. LCR be sent back forthwith to the learned
Tribunal below.
JUDGE
Comparing Assistant
