Page No.# 1/8 vs Kamala Konwar
2024 Latest Caselaw 3925 Gua

Gauhati High Court

Page No.# 1/8 vs Kamala Konwar on 4 June, 2024

                                                                    Page No.# 1/8

GAHC010135482017




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

                              Case No. : MACApp./379/2017

            SRI NIRAB HARPAL and ANR
            S/O SATYEN HARPAL, VILL. DHENU BASTI RONGKHELAN, P.O. DIPHU PIN
            782640, DIST. KARBI ANGONG, ASSAM.

            2: BIJU BAISHNAB
             S/O MOTILAL BAISHNAB
            VILL. PADUMONI
             P.S. SARUPATHAR
             DIST. GOLAGHAT
            ASSAM

            VERSUS

            KAMALA KONWAR
            W/O LATE KESHAB CH. BARUAH, R/O DHEKIALGAON, P.O. DHEKIAL,
            DIST. GOLAGHAT, ASSAM.



Advocate for the Petitioner   : MR.N NATH

Advocate for the Respondent : FOR CAVEATOR




                                   BEFORE
                     HONOURABLE MRS. JUSTICE MARLI VANKUNG

                                       JUDGMENT

Date : 04-06-2024

Heard Mr. U.J. Saikia, learned counsel for the appellants. Also heard Page No.# 2/8

Mr. M.H. Laskar, learned counsel for the respondent.

2. The instant appeal filed under Section 173(1) of the Motor Vehicle Act, 1988 is against the Judgment & Award dated 31.08.2016 passed by the learned Member, Motor Accident Claims Tribunal, Golaghat in MAC. Case No.77 of 2010.

3. Facts of the case in brief as narrated by the claimant is that on 05.04.2010, at about 11:30 A.M, while the deceased victim was proceeding from his house on the NH 37 on a Motorcycle bearing registration No.NL-07/E-1060, one Maruti Van bearing registration No.AS-01-K/5201, which was coming from the opposite direction in a rash and negligent manner dashed against the said Motorcycle causing extensive damage and grievous injuries to the deceased victim. The victim was taken to K.K. Civil Hospital, Golaghat and later shifted to Guwahati Medical College & Hospital, Guwahati, where he succumbs to his injury on o6.04.2010. A criminal case bearing No.22/2010 under section 279/304(A) /427 IPC was duly registered at the Borpathar Police Station (Shantipur) against the driver of the offending Maruti Van.

4. The learned Tribunal then observed that (quote) "On receipt of notices from this Tribunal, the opposite parties entered appearance. But later on, they failed to submit their written statements and to contest the case inspite of giving sufficient opportunities to them. Therefore it is decided to hear the claim petition against them ex-parte and accordingly, it is heard ex-parte on 24.07.2015.

The learned tribunal then framed following issues:

i. Whether the driver of vehicle. No.AS-01-K/5201 (Maruti Van) Page No.# 3/8

has driven the same in rash and negligently on 05.04.2010, at about 11 A.M., on NH-39, near Deopani Mandir and thereby, caused the accident?

ii. Whether Keshob Ch. Baruah (since deceased) sustained grievous injuries in the said accident and consequently succumbed to the same?

iii. Whether the claimant is entitled to any compensation? If so, what is the proper quantum and from whom?

iv. Any other reliefs?

5. The claimants in support of their claim, exhibited the accident information report - Ext-1, Death Certificate of the deceased as Ext-3, Discharged certificate from Golaghat Civil Hospital -Ext-4, Death certificate from the Hospital Ext-5.

6. The learned Tribunal after considering the evidence adduce by claimant witness No.1 and claimant witness No.2 and on perusal of the documents on record, held that the accident was due to the rash and negligent driving of the offending vehicle by the driver and the claimants were to be compensated. The learned Tribunal held that the deceased victim was aged 49 yrs from the post mortem report Ext.-2, his monthly income was taken as Rs.5000/- since he worked as an Agent of LIC. The learned tribunal calculated the compensation amount by relying on the decisions of the Apex court in Rajesh Vs. Rajbir Singh case (2009)9SCC 54 and Sarala Verma's case 2009 6 SCC 121 :

Sl.No.                HEADS                 CALCULATIONS
(i)       Income                         Rs.5,000
(ii)      30% be added as future         Rs.5,000/-+ Rs.1,500)
                                                                               Page No.# 4/8

prospects, (As per Rajesh Vs. =Rs.6,500/- per month Rajbir's case)

(iii) 1/3rd of be deducted as Rs.6,500- 2166/) personal for expenses of Rs.4334/ per month deceased(As per Sarala Verma's case)

(iv) multiplier 13 is applied(As per Rs.4334/ x12 x 13 Sarala Verma's case =Rs.6,76,104/

(v) Loss of love and affection(As per Rajesh Vs. Rajbir's case Rs.1,00,000

(vi) Loss of consortium((As per Rajesh Vs. Rajbir's case As Rs.1,00,000 per Rajesh Vs. Rajbir's case

(vii) Loss of care and guidance to the minor Rs.1,00,000

(viii) Funeral expenses(As per Rajesh Vs. Rajbir's case Rs.25,000

TOTAL AMOUNT OF COMPENSATION Rs.10,01,104/-

7. The learned tribunal founding no insurance coverage of the offending vehicle bearing registration No.AS-01-K/5201 (Maruti Van) at the relevant point of time, held, the O.P. No.1 and O.P. No.2, the owner and driver of the Maruti

Van No. No.AS-01-K/5201, jointly liable to pay the aforesaid amount of

Rs.10,01,104/-(Rupees Ten Lakhs, One Thousand, One Hundred and Four only) as compensation to the claimant along with interest @ 9% per annum from the date of filing of the claim petition till realization of the entire amount.

Aggrieved by the Judgment & Award, the instant appellant has filed the Page No.# 5/8

instant Appeal.

8. Mr. U.J. Saikia, learned counsel for the appellants submits that main grounds for filing an appeal was that the appellants were not given the opportunity to file their written statement of contest the claim of the claimants and that the learned Tribunal had erred in passing the Judgment & Award ex- parte.

9. The learned counsel submitted that the accident was not to due to any rash and negligent driving of the driver of the vehicle No.AS-01-K/5201 and has annexed the Final Report dated 31.07.2010 in the appeal memo. He further submits that the appellant No.1/O.P No.1 was a minor on the date of filing the claim petition and he was not represented by any guardian. The learned counsel submits that the appellant No.1, owner of the vehicle was only about 11 years of age and still student at the relevant time, but this aspect was not taken into consideration by the learned Tribunal at the time of passing the Judgment & Order dated 31.08.2016.

10. The learned counsel for the appellant further submitted that the learned counsel for the opposite party had appeared initially and had also sought for adjournment due to the illness of the advocate. He further submitted that the advocate, then engaged by the opposite parties, had informed them that the matter was settled and therefore, they did not appear before the court. That they got to know that the matter was disposed of only on 31/08/2016 when they received a copy of the impugned Judgment and award dated 31/08/2016.

11. The learned counsel for the appellants submit that the ex-parte Judgment Page No.# 6/8

and award dated 31/08/2016 is liable to be set aside since the accident was not due to the fault of the driver of the alleged offending vehicle Maruti Van bearing registration No.AS-01-K/5201. The learned counsel for the appellant thus prayed for setting aside the ex-parte Judgment and award dated 31/08/2016 and for the matter to be remanded back to the learned Tribunal for giving a chance to the appellants to adduce their evidence.

12. Mr. M.H. Laskar, learned counsel for the respondents/claimants on the other hand submits that no sufficient reason has been made out by the appellants to set aside the ex-parte order passed by the learned Tribunal. He submits that on the perusal of the order-sheet in the LCR, it shows that the O.P. parties were present before the Tribunal on 30.07.2010, thereafter, opposite parties were absent frequently and did not file their written statements. The learned trial court had fixed various dates, giving chance to the opposite parties to file their written statement and also contest the claim application, but the appellants/opposite parties failed to take any steps.

13. The earned counsel for the respondents/claimants submits that the learned Tribunal had given sufficient opportunities to the opposite parties to represent their case, wherein the matter was also adjourned many times for hearing. The claimant submitted their evidence on 19.07.2016 and on 31.08.2016 the learned Tribunal finally passed its ex-parte Judgment & Order. The learned counsel for the respondent submits that it is clear that the opposite parties/appellants were not interested to contest the claim application since they failed to even file their written statement.

14. Having heard submissions made by the learned counsels for both the Page No.# 7/8

parties, this court find that though the learned counsel for the appellant has submitted that the opposite party no.1 was a minor at the time the matter was considered by the learned Tribunal, this court finds that no documents are annexed to substantiate the instant claim, further, a perusal of the order sheet of the LCR also does not reflect that the learned Tribunal was informed that the owner of the vehicle was a minor.

15. This court also finds that though the instant appeal is filed under section 173 of the Motor Vehicle Act, 1988 however the main ground for filing the instant appeal is for the setting aside of an ex-parte Judgment and award dated 31.08.2016 and for the remand of the matter back to the learned tribunal. The instant appeal is not against the awards per se but for setting aside an ex-parte award since the respondents were not given the opportunity to oppose the claim application before the learned Tribunal.

16. This court thus finds that since the instant appeal is actually for setting aside an ex parte order/award, the appropriate forum would be to approach the learned Tribunal who had passed the ex-parte Judgment as per law.

Section 169 of the MV Act provides as under :

(quote) "Procedure and powers of Claims Tribunals.--(1) In holding any inquiry under section 168, the Claims Tribunal may, subject to any rules that may be made in this behalf, follow such summary procedure as it thinks fit. (2) The Claims Tribunal shall have all the powers of a Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and of compelling the discovery and production Page No.# 8/8

of documents and material objects and for such other purposes as may be prescribed."

This court finds that since the Tribunal is having all the powers of a Civil Court as held above, there is no bar in exercising its power under Order 9 Rule 13 of the Civil Procedure Code, 1908 to entertain an application for setting aside an ex-parte award which is found to be the case in the instant appeal.

17. Thus, this court is of the considered view that it would not be appropriate to consider the prayer for setting aside an ex-parte Judgments under section 173(1) of the Motor Vehicle Act, 1988 or consider the grounds stated by the appellants/opposite parties, for their non appearance or whether to give the opportunity to the appellants to adduce their evidence before the learned Tribunal to prove that the accident was not due to the fault of the driver/ opposite party no.2.

18. Accordingly the instant appeal stands dismissed with a permission for the parties to approach the appropriate forum for setting aside an ex-parte decree as per law, if so advised.

19. MAC.App 379 of 2017 stands dismissed and disposed of as above.

JUDGE

Comparing Assistant