Page No.# 1/ vs Musstt Rahima Begum And 2 Ors
2025 Latest Caselaw 2898 Gua

Gauhati High Court

Page No.# 1/ vs Musstt Rahima Begum And 2 Ors on 6 February, 2025

                                                                        Page No.# 1/11

GAHC010210252015




                                                                  2025:GAU-AS:1189

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

                              Case No. : MACApp./51/2015

            SRI BHARGAV CHALIHA
            S/O SRI PURNA CHALIHA, R/O VILL. BAKORI DOLONI, P.S. GAHPUR, DIST.
            SONITPUR, ASSAM.



            VERSUS

            MUSSTT RAHIMA BEGUM and 2 ORS
            W/O LATE MOJIBUR RAHMAN, R/O VILL. NO. 1 GUDAMGHAT, P.O.
            GUDAMGHAT, P.S. RANGAPARA, DIST. SONITPUR, ASSAM.

            2:THE BRANCH MANAGER

             BAJAJ ALLIANZ GENERAL INSURANCE
             GUWAHATI BRANCH
             OPPOSITE BORA SERVICE STATION G.S. ROAD
             ULUBARI
             GUWAHATI 781007
             DIST. KAMRUP M
             ASSAM.

            3:MAHENDRA PRADHAN

             S/O SRI DAMBARU PRADHAN
             R/O VILL. PURUPBARI GATE
             P.O. and P.S. GOHPUR
             DIST. SONITPUR
             ASSAM

Advocate for the Petitioner   : MR.P K DEKA, MR.D HAZARIKA,MR.H DEKA,MR.R SHARMA

Advocate for the Respondent : MS.L SHARMAR-2, J K ROY (R-1),MR. R SARMA(R-1),MR. S

BIKASH(R-2),MR. R BAISHYA(R-2),MR. P M TALUKDAR (R-2),MR.B J MUKHERJEE(R-

Page No.# 2/11

2),MR.A SHARAN(R-2),MRM R ADHIKARI(R-1),MR.S S SHARMA(R-2),MR.P N SHARMA (R-

1),MS.N DAIMARI(R-1)

     Date of hearing                     : 05.12.2024.
     Date of Judgment                   : 06.02.2025.


                               BEFORE
                   HONOURABLE MR. JUSTICE BUDI HABUNG

                            :: Judgment and Order ::
                                     [CAV]

Heard Mr. R. Sharma, learned counsel for the appellant. Also heard Mr. R. Sarma, learned counsel for the respondent no. 1 and Mr. R. Baishya, learned counsel for the respondent no. 2.

2. This appeal has been filed under Section 173 of the Motor Vehicle Act, 1988 against the judgment and award dated 30.08.2014, passed by the Member, Motor Accident Claims Tribunal, Sonitpur, Tezpur in MAC case no. 383 /2008.

3. The case leading to the filing of this appeal is that the husband of the respondent no. 1/claimant, Mojibur Rahman met with a vehicular accident on 17.08.2008, following which he succumbed to his injuries on 19.08.2008 at Kanaklata Civil Hospital, Tezpur. The respondent no. 1/Claimant filed the claim application No. MAC case no. 383/2008, under Section 166 of the Motor Vehicle Act, 1988 (for short the MV Act) before the learned Member, MACT, Sonitpur, Tezpur, seeking a total compensation amount of Rs. 7,69,000/-. The claimant has impleaded the owner, the driver and the insurer of the offending vehicle as opposite party nos. 1, 2 and 3 respectively there.

4. The respondent/opposite party including the appellant Page No.# 3/11

contested the case by filing written statements. The opposite party No. 3, Insurance Company in its written statement contended that the offending vehicle had no valid road permit at the time of the accident. The learned counsel for the appellant submitted that appellant had a valid road permit at the time accident and the same was handed over to his Advocate for filing it before the learned Tribunal. However, the same was not placed and exhibited before the learned Tribunal during the trial of the case.

5. As a result, the learned Member, MACT, Tezpur after hearing the parties held that the vehicle involved in the accident did not have valid road permit at the time of accident. Accordingly, in view of the above findings, the learned Tribunal by its impugned judgement and award dated 30.08.2014, has absolved the Insurance Company respondent no. 2 from the liability, and directed the appellant (owner of the vehicle) to pay the awarded amount of Rs. 6,39,000/- (Rupees six lakhs thirty-nine thousand) within 1 (one) month from the date of the said order to the claimant with interest at the rate of 9% per annum from the date of institution of the case with cost.

6. Being aggrieved and dissatisfied with the impugned judgment and award, the appellant has preferred this appeal on the following grounds:

(i) that during the trial the respondent No.2/Insurance Company had examined one Sri Ajit Kumar Baruah, the District Transport Officer, Tezpur as DW-1 and exhibited the original Road Permit as Exhibit No.B, for the vehicles running under the Assam State Page No.# 4/11

Transport Corporation for the period of 04-01-2008 to 07-01-2009.

Through the said witness (DW-1) the Insurance Company/respondent No.2 exhibited the relevant page of Exhibit-B, Register as Exhibit-B(1) showing the issuance of route permit against the vehicle No AS-12-E- 0380. In the examination in chief, the said DW-1 stated that the road permit of the vehicle was issued on 24-10-2008, in the name of the appellant/owner against money receipt No. 8265160 dated 24-10- 2008, and the same was valid since 24-10-2008 till 23-10-2011 to ply between Bakori Dolonigaon, Lakhimpur to Tezpur and back. During the cross examination by the claimant/respondent No. 1, the DW-1 stated that the road permit of the vehicle was renewed on 24-10-2011 till 23- 10-2014. Based on the said evidence the learned Member, MACT held that on the date of accident on 17-08-2008, the vehicle had no valid route permit and accordingly the respondent No.2/Insurance Company was absolved from its liability, and held that the appellant/owner is liable to pay the awarded amount to the claimant/respondent No. 1. This finding is totally incorrect inasmuch as the DW-1, the District Transport Officer, Tezpur suppressed the vital material fact that the offending vehicle was operating under the A.S.T.C. on a temporary permit prior to issuance of the permanent permit, as such, the finding in Issue No.3 is liable to be set-aside.

(ii) That the Secretary, State Transport Authority issued Route Permit No. 12/6/07/STA against the Vehicle No. 12-E-0380 on 28-06- 2007 as per Form No.14 (P. Co. P.) of Schedule-I, of the Assam Motor Vehicle Rules' 2003 till 27.10.07. The Route/Area of the said permit was issued to ply between Bakori Dolonigaon, Lakhimpur to Tezpur and Page No.# 5/11

back. The said permit issued for the period of 28-06-07 till 27-10-07 was renewed by the Secretary, State Transport Authority on 26-10-07 till 27-02-08. Thereafter the permit was renewed up to 27-06-08, which was subsequently renewed on 27-06-08 till 27-10-08 by the Secretary, State Transport Authority as per Rule 45(2)(f) of the Assam Motor Vehicle Rules' 2003. However, the DW-1, the DTO, Tezpur, while adducing evidence from record suppressed the aforesaid material fact. Therefore, the finding in issue no. 3 is bad in law and liable to be set aside.

(iii) The appellant furnished all documents and his instructions his counsel during the trial of MAC Case No. 383/2008, but unfortunately the Route Permit, the M.V.I. Report dated 18-08-2008, and money receipt dated 26-06-08 were only relied on by his learned counsel. Under the circumstances, this is a fit case to remand the appeal with a direction to the learned Member, M.A.C.T, Tezpur to try the issues afresh and allow the appellant to adduce fresh evidence in M.A.C. Case No. 383/2008.

(iv) From the record, it is apparent that no cross examination was done on behalf of the appellant so far as the DW-1, the DT.O., Tezpur is concerned. Moreover, as apparent from the judgment, no advocate represented the appellant at the time of argument. And, unless the same is allowed to bring on record, the appellant would be prejudiced. It is therefore, submitted that the appellant should not be made to suffer for a wrong committed by his engaged counsel.

(v) The appellant ran his vehicle prior to issuance of the permanent route permit on a temporary route permit issued by the Page No.# 6/11

State Transport Authority under Section 87 of the M.V. Act, 1988. It was renewed three times under Rule 45(2)(f) of the Assam Motor Vehicles Rules, 2003. The above facts are not disputed. However, the same was not brought before the learned Tribunal during trial. From the evidence of DW-1, the D.TO, Tezpur, it is apparent that the route permit issued effective from 24-10-08 to 23-10-2014 was a permanent permit. But prior to it, the offending vehicle was running under temporary route permit had not been brought on record by calling the officials of the State Transport Authority, as such, apparently there were laches on the part of the counsel for which the appellant should not made to suffer. Further the report of the M.V.I., which was issued immediately on the next date of the accident supports the fact that there was a valid temporary route permit under which the offending vehicle was running, under such circumstances, this is a fit case to remand with a leave to the appellant to adduce evidence before the Member, M.A.C.T.

(vi) The respondent No.2 wilfully suppressed the material fact regarding the temporary permit issued to the appellant in order to benefit out of illegal gain with an intention to shift the liability to the appellant. And, although the advocate was instructed and show the documents regarding the temporary route permit but it was intentionally suppressed.

7. For the grounds stated above, the learned counsel for the appellant prays for setting aside the impugned judgement and award dated 30.08.2014, passed in MAC case no. 383/2008 by the learned Member, MACT, Tezpur and to remand the matter back for fresh trial.

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8. In support of his submission, the learned counsel for the appellant relied on the following decisions of the Hon'ble Supreme Court:

(i) Mohan Kumar Vs. State of Madhya Pradesh reported in (2017) 4 SCC 92.

(ii) Rafiq and Anr Vs. Munshilal and Anr reported in (1981) 2 SCC 788.

9. Mr. R. Sarma, the learned counsel for the respondent/ Insurance Company, submitted that as per the Assam Motor Vehicle Rule, 2003, under Clause 45(2) (a) and (f) a renewal can be done only three times. Upon verification of the documents annexed by the appellant, in all his fairness, he submitted that in the instant case, the appellant has done the first renewal on 28-06-2007, for the period of 28-06-07 till 27-10-07, the second renewal was done effective from 28-10-07 till 27-02-08, and the third renewal was done on 27-06-08 for the period from 28-06-08 till 27-10-08; the accident took place on 17-08-2008, which shows that the road permit of the appellant was valid at the time of the accident. Mr. R. Baishya, learned counsel for the respondent No.2 also conceded with the submission of the learned counsel for the appellant that the appellant had a valid permit at the time of the accident which has a strong support of the learned counsel for the respondent Insurance company.

10. In view of the above, the learned counsel for the respondent Insurance Company and the respondent No.2, fairly submitted that they have no objection, if the matter is remanded Page No.# 8/11

back to the learned Tribunal for re-decision on the issue no. 3.

11. I have heard the learned counsel for the parties and also perused the record. The factum of the case is not disputed. The only dispute in the present appeal is regarding the decision of issue No.3 of the judgment and award dated 30.08.2014, passed by the learned Member, Motor Accident Claims Tribunal, Sonitpur, Tezpur in MAC case no. 383 /2008.

12. From the record and the submission made by the learned counsel for the parties, it appears that the accident took place on 17.08.2008, and at the time of the accident, the road permit of the vehicle No. AS-12-E-0380 was having permit No. 12/6/07/STA, issued by the Secretary, State Transport Authority to ply between Bakori Dolonigaon, Lakhimpur to Tezpur and back. The same was valid upto 27.08.2008, and the Insurance Certificate No. OG-09-2405-1812- 00000013, was valid upto 29-04-09 of Bajaj Allianz General Ins. Co. Ltd. However, the said record was not placed and exhibited before the Tribunal during trial, due to which the learned Tribunal has absolved the Insurance Company from its liability, and directed the owner of the vehicle appellant/opposite party no. 1 to pay the compensation amount of Rs. 6,39,000/- (Rupees six lakhs thirty nine thousand) to the claimant.

13. In the case of Mohan Kumar Vs. State of Madhya Pradesh (supra) the Hon'ble Supreme Court while allowing the appeal has held that an opportunity be given to the appellant to prove his case by allowing him to adduce proper evidence in support of his case. The Hon'ble Supreme Court also observed that the High Page No.# 9/11

Court should have remanded the case to the Trial Court for retrial of the suit. The relevant paragraph is reproduced below:

"20. In our considered opinion, assuming that the High Court was right in its view, it should have given an opportunity to the appellant to prove his title by allowing him to adduce proper evidence in support of his case and for that, the High Court should have remanded the case to the Trial Court for retrial of the suit. It was more so because we find that the appellant suffered more damage to his case in prosecuting his own appeal. In the absence of any challenge laid by the defendants to the part of the decree passed in plaintiff's favour by the Trial Court, the appellate Court virtually passed the order in respondents' (defendants) favour in appellant's appeal.

21. In other words, the High Court having held that the plaintiff was not able to prove his title to the land in the suit due to non- examination of his vendor, all that the High Court, in such circumstances, should have done was to remand the case to the Trial Court by affording an opportunity to the appellant to prove his case (title to the land) and adduce proper evidence in addition to what he had already adduced. This, the High Court could do by taking recourse to powers under Order 41, Rule 23A of the CPC."

14. In Rafiq and Anr Vs. Munshilal and Anr (supra) the Hon'ble Supreme Court observed that a party should not suffer for the inaction, deliberate omission, or misdemeanour of his agent. The relevant paragraph is reproduced below:

"3. ...if we reject this appeal, as Mr. A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The Page No.# 10/11

answer obviously is in the negative. Maybe that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law. If there is a stay of dispossession it will continue till the disposal of the matter by the High Court. There remains the question as to who shall pay the costs of the respondent here. As we feel that the party is not responsible because he has done whatever was possible and was in his power to do, the costs amounting to Rs. 200/-should be recovered from the advocate who absented himself. The right to execute that order is reserved with the party represented by Mr. A.K. Sanghi."

15. Upon consideration of the facts and circumstances of the case, and in light of the Hon'ble Supreme Court's decision, it is noted that due to non-presentation and exhibition of the relevant documentby the appellant's Advocate before the trial court-specifically, the road permit, which was valid at the time of the accident- I am of the opinion that the parties should not suffer due to the Advocate's oversight. Therefore, I am of the opinion that the matter can be remanded under Order 41 Rule 23A of the CPC to the learned Tribunal for reconsideration of issue No. 3. Accordingly, the same is set aside and quashed. The matter is remanded to the learned Tribunal to retry the claim petition, particularly issue no. 3, on its merit, by affording an opportunity for the parties to present Page No.# 11/11

additional evidence in support of their case. The claimant and the opposite parties are granted the liberty to submit additional evidence. The learned Tribunal shall then pass judgment in accordance with the law.

16. The parties are directed to appear before the learned Tribunal on 11.03.2025, to enable the Tribunal to conclude the proceeding at the earliest, preferably within 6 (six) months from the date of their appearance.

17. With the above, this appeal stands disposed of.

JUDGE

Comparing Assistant