The National Insurance Co. Ltd vs Sir Ganesh Datta
2022 Latest Caselaw 1082 Tri

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                HIGH COURT OF TRIPURA
                      AGARTALA
                MAC APP NO.51 OF 2021

The National Insurance Co. Ltd.,
Represented by its Divisional Manager,
Agartala Divisional Office,
42- Akhaura Road, P.S.- West Agartala,
District- West Tripura.
(Insurer of private car Maruti Wagonr bearing No.TR-03-A-
0688).

                                  ......... Appellant(s)

                Vs.

1. Sir Ganesh Datta,
S/o- Sri Shiba Datta, of Dhajanagar,
Netaji Pally, P.O. & P.S.- R.K. Pur,
Udaipur, Gomati District- Tripura.

2. Sri Samar Debnath,
S/o- Sri Sunil Debnath,
R/o- Chandan(Near Youth Club),
P.O & P.S.- R.K. Pur,
Gomati District- Tripura.
(Owner of the vehicle canter truck bearing No.TR-03-A-
1536).

3. Md. Abdul Kadir,
S/o- Md. Abdul Mutalab,
Of Salgarh, Lachubagan,
P.S.- R.K. Pur, Gomati Tripura,
(Driver of vehicle bearing no TR-03-A-1536)

4. Legal heirs of Sridham Debnath,
(Owner of TR-03-H-0688, Maruti Wagoner).

4(a). Smt. Dipali Debnath,
W/o- Late Sridam Debnath,

4(b). Sri Litan Debnath,
S/o- Lt. Sridham Debnath,

4(c) Sri Bijoy Debnath,
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      S/o Late Sridham Debnath,

      4(d). Smt. Pinki Debnath,
      D/o- Lt. Sridhaam Debnath.

      All of Gokulpur, R/F Tilla
      (Near Assam Rifle Camp)
      P.S.- R.K. Pur, Udaipur,
      Gomati Tripura, Tripura.

      5. Md. Akash Islam,
      S/o. Ratan Islam,
      Of Dhajanagar, Goual Gaow,
      P.O. & P.S. - R.K Pur,
      Udaipur, Gomati District, Tripura.
      (Driver of vehicle bearing No.TR-03-H-0688(Maruti Wagonr)


                                           ....... Respondent(s)

For the Appellant(s) : Mr. S. Debnath, Advocate.

For the Respondent(s) : Mr. R.G. Chakraborty, Advocate.

Date of hearing and delivery of Judgment & Order : 16.12.2022.

Whether fit for reporting : YES/NO.

HON'BLE THE CHIEF JUSTICE(ACTING)

JUDGMENT AND ORDER(ORAL)

This present appeal has been filed under Section

173 of the Motor Vehicles Act, 1988, against the impugned

judgment and award dated 06.02.2019 passed by the learned

Motor Accident Tribunal(Court No.1), Gomati Tripura, Udaipur,

in case No.T.S.(MAC) No.47 of 2016.

2. The fact in brief resulting to this instant appeal is that

at about 11 a.m. the claimant-respondent along with other

passengers were traveling towards Agartala from Udaipur

boarding vehicle no. TR-03-H-0688 (Maruti Wagoner). On the

way, when they reached Tepania, near Eco Park turning,

another vehicle no. TR-03-A-1536 (Canter Truck) coming from

the opposite direction collided with the vehicle of the

claimant-respondent and caused an accident. As a result, the

claimant-respondent sustained grievous injuries to his person.

Soon after the accident, the local people shifted the claimant-

respondent to District Hospital, Udaipur wherefrom

considering the gravity of the injury, the claimant-respondent

was referred to AGMC & GBP Hospital, Agartala. At GBP

Hospital, the claimant-respondent was treated as an indoor

patient w.e.f. 25.03.2015 to 27.03.2015. After discharge from

the hospital, he took treatment privately at Ortho Care &

Related Centre, Agartala. The claimant-respondent thereafter

also continued his treatment by attending the private chamber

of doctors. It is alleged that the accident took place due to

rash and negligent driving of the drivers of both the vehicles

bearings nos.TR-03-A-1536 (Canter Truck) and TR-03-H-

0688 (Maruti Wagoner).

3. Thereafter, a claim petition was filed claiming

compensation of Rs.50,00,000/- due to the injuries sustained

by the claimant-respondent.

4. The owner and the driver of the canter truck

bearing No.TR-03-A-1536 though appeared through their

learned counsel but did not file a written statement. Vide

order dated 23.05.2017, the case proceeded exparte against

them.

5. The Owner-respondent of the vehicle bearing No.TR-

03-H-0688 (Maruti Wagoner) died and his legal heirs

contested the case by filing a written statement. They

contended that the said accident did not take place due to the

rash and negligent driving of the driver of vehicle bearing No.

TR-03-H-0688(Maruti Wagner). They further contended that

their vehicle was driven by a driver having a valid driving

license and the said vehicle was insured with the appellant-

National Insurance Co. ltd. at the time of the accident and if

any compensation is awarded, that is to be borne by the

appellant-Insurance Co. ltd. The appellant-Insurance

Company also contested the case by filing a written

statement.

6. Learned Tribunal framed the following issues for

adjudication:-

"1) Whether the suit is maintainable in its present form?

2) Whether the petitioner Sri Ganesh Datta suffered injuries due to motor vehicle accident on 25.03.2015 in which the vehicle bearing Nos.TR-03-H-0688(Maruti Wagoner) an TR-03-A-1536(Canter truck) collided with each other and the petitioner suffered injury?

3) Whether the accident occurred due to the rash and negligent driving by the driver of the aforesaid vehicles?

4) Whether the petitioner is entitled to get compensation and if so, what would be the amount?

5) To what reliefs are the parties entitled?"

7. Learned Tribunal after hearing both sides fastened the

entire liability of the compensation of Rs.1,44,910/- to the

legal heirs of the owner of the vehicle bearing No.TR-03-H-

0668 (Maruti Wagoner).

8. Thereafter being aggrieved by and dissatisfied

with the aforesaid impugned judgment and award dated

06.02.2019, the legal heirs of the owner-respondent of the

vehicle bearing No.TR-03-H-0688(Maruti wagoner) preferred a

review petition under Order XL VII Rule 1 read with Section

151 of C.P.C. which was registered as Civil Misc. (review)112

of 2019 praying for review of the judgment and award dated

06.02.2019 passed in T.S.(MAC)47 of 2016.

9. The learned Tribunal on hearing the parties and after

examination of one Smt. Dipali Das, one of the legal heirs of

the owner of the vehicle bearing No. TR-03-H-0688, by order

dated 11.02.2021 shifted the liability of paying the said

compensation upon the appellant-Insurance Company.

10. Being aggrieved and dissatisfied with the

aforesaid impugned judgment and awarded dated 06.02.0219,

passed by the learned Motor Accident Tribunal, Gomati

District, Udaipur, Case No. T.S.(MAC)47 of 2016 and

subsequent order dated 11.02.2021 passed in Civil

Misc(review)112 of 2019, the appellant-Insurance Company

has preferred this instant appeal.

11. Heard Mr. S. Debnath, learned counsel appearing

for the appellant-Insurance Company, and Mr. R.G.

Chakraborty, learned counsel appearing for respondent No.2.

12. Mr. S. Debnath, learned counsel appearing for

the appellant-Insurance Company submitted that the learned

Tribunal committed a grave error of law in awarding the

compensation against the appellant-Insurance Company

without considering that the said Maruti Wagoner bearing

No.TR-03-H-0688 is a private car and the policy in question is

a liability policy only and no premium was taken by the

appellant-Insurance Company to cover the risk of death or

injury of any passenger/occupants. The insured i.e. owner of

the vehicle did not pay any premium to cover any risk in the

private car of any passenger or occupants. As such, liability

ought to have been fastened upon the owner of the private

car i.e. the said Maruti Wagoner for violation of the terms of

the policy. Stating thus, learned counsel appearing for the

appellant-Insurance Company urged this Court to fasten the

liability of paying the said compensation to the legal heirs of

the owner of the Maruti Wagoner(No.TR-03-H-0688).

13. Heard both sides and perused the evidence on

record.

14. The specific issue as contended by the learned

counsel appearing for the appellant-Insurance Company has

not been framed before the learned Tribunal below, and

further the appellant-Insurance Company has not taken any

steps in this regard before the learned Tribunal below. So, it is

now not open for the appellant-Insurance Company for raising

this new issue which was not before the learned Tribunal

below. This Court is not inclined to go into the said aspect.

15. As such this instant appeal stands dismissed.

Accordingly, the impugned judgment and award dated

06.02.2019 passed in T.S.(MAC) No.47 of 2016, and the

subsequent order dated 11.02.2021 passed in Misc(review)

No.112 of 2019 stands confirmed.

16. Consequently, this instant appeal is allowed.

Pending application(s), if any also stand closed.

CHIEF JUSTICE (ACTING)

suhanjit