Sri Birendra Debnath vs Smt. Sabitri Deb
2022 Latest Caselaw 987 Tri

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                       HIGH COURT OF TRIPURA
                          A_G_A_R_T_A_L_A
                          MAC. App. No.07 of 2021

1.    Sri Birendra Debnath, son of late Jogendra Debnath, resident of
      Kachucherra, P.O. Kachucherra, P.S. Kachucherra, District: Dhalai
      Tripura.
      [Owner of the motorcycle, bearing registration No.TR-04-5633]

                                                                   .....Appellant

                                  -V E R S U S-

1.    Smt. Sabitri Deb, wife of late Dijendra Deb, resident of West
      Baralutma, P.O. Salema, Kamalpur, District: Dhalai Tripura.
                                                   .....The claimant-respondent

2. The Oriental Insurance Company ltd, represented by the Divisional Manager, Kaman Chowmuhani, Agartala, P.S.West Agartala, District: West Tripura.

Now office at:

48 B, HGB Road, near Post Office Chowmuhani, P.S. West Agartala, District: West Tripura.

[Insurer of the motorcycle, bearing registration No.TR-04-5633]

..... Respondent O.P.

                         B_E_F_O_R_E
               HON'BLE THE CHIEF JUSTICE (ACTING)

For Appellant(s)              :      Mr. Dipak Deb, Advocate.
For Respondent(s)             :      Mr. Alik Das, Advocate.
                                     Mr. B. Majumder, Advocate.
Date of hearing & delivery of
judgment and order         :         28.11.2022
Whether fit for reporting :          NO


                       JUDGMENT & ORDER [ORAL]

Heard Dipak Deb, learned counsel appearing for the appellant. Also heard Mr. Alik Das and Mr. B. Majumder, learned counsel appearing for the respondents.

[2] This is an appeal filed under Section-173 of the Motor Vehicle Act, 1988 against the judgment and award dated 28.10.2009 passed by the

learned Motor Accident Claims Tribunal, North Tripura, Kamalpur, in case No. T.S. (MAC) 04 of 2008 implicating the O.P. No.1 appellant (owner of the vehicle) herein, in the said judgment and award in pursuance of the judgment and award passed by this Court dated 28.02.2019 in case No. IA. No.01 of 2018 in MAC (Appeal) No.121 of 2018, instituted by the claimant respondent No.1 herein.

[3] The learned Tribunal after hearing the parties and perusal of the material evidence on record has observed as under:

"Direct the respondent No.1 to pay the entire compensation as awarded to the claimant petitioner within two months from the date of receipt of order, the compensation will bear interest @6% p.a. from the date of filing of the petition i.e. 31.03.2008 till the date of payment. If the amount is not paid within two months it will bear penal interest @9%p.a. on the amount."

[4] Being aggrieved by and dissatisfied with the judgment and award passed by the learned Motor Accident Claims Tribunal, North Tripura, Kamalpur dated 28.10.2009 in case No. TS(MAC)04 of 2008, the O.P. No.1 Appellant has preferred the present appeal.

[5] The case of the appellant, in short, is that on 19.12.2007 while the predecessor in interest of the appellant was returning after purchasing some vegetables from the market to his residence, at that time the offending motor cycle dashed him from behind. As a result, he fell down on the road and sustained severe injuries. Thereafter, local people brought him to the Kamalpur Hospital. But, on the same day at night time he succumbed to the accidental injuries. The deceased was active and 55 years of old at the time of his death and earning Rs.5,000/- per month from cultivation.

[6] Mr. D. Deb, learned counsel appearing for the appellant has submitted that the judgment and award passed by the learned Motor Accident Claims Tribunal, North Tripura, Kamalpur is bad in law and not warranted b y the facts and circumstances of the case. He has submitted

that the learned Tribunal award in favour of the claimant petitioner- respondent awarding the amount of compensation being excessive where the claimant petitioner-respondent No.1 has failed to produce any evidence in support of the claim that her deceased husband was the cultivator and also earning the amount of Rs.5,000/- per month.

[7] The learned Tribunal without considering the written objection of the respondent No.2, the insurance company wherein, no specific denial made by the insurance company as to the insurance of the motorcycle of the O.P. No.1 appellant during the period of the accident and thereby very wrongly and illegally imposed the entire liability of payment of compensation upon the OP No.1, the appellant herein.

[8] He has further submitted that the insurance company, the respondent No.2 denied the claim of the claimant respondent No.1 and also contended that no such accident occurred as no information of accident was with the insurance company and also stated that, the claimant respondent No.1 though stated that the motorcycle was insured but did not disclose the policy particulars etc., but, did not deny that the vehicle was not insured with the said insurance company and as such it ought to have considered that the insurance company willfully avoided to disclose the fact of issuance of the insurance policy of the said vehicle and the same was valid during the accident as all the copy of the FIR of Salema P.S. Case No.44 of 2007 under Sections-279/304A of IPC and the certified copy of the seizure list inclusive of insurance certificate valid up to 17.01.2008, which had been produced by the claimant respondent No.1 in the said motor accident claim case. But, the learned tribunal most arbitrarily decided that the insurance policy being not produced and has been proved the owner of the bike i.e. the O.P. No.1, the appellant was liable to pay the awarded amount of compensation, which is absolutely wrong and cannot be sustained in law.

[9] The learned Tribunal has failed to consider and appreciate the various decision of the Apex Court that while the insurance policy is not filed by the owner of the vehicle involved in the accident and if the owner of the vehicle even violates the condition of policy and also failed to renew the said policy then, also the liability of payment of the awarded amount of compensation ought to have been imposed on the concerning insurance company to make the payment of compensation.

[10] The learned Tribunal ought to have considered that the certificate of issuance disclosing the date of making the insurance of the vehicle and the date of validity covering the date and time of accident itself is the sufficient document of valid insurance of the vehicle involved in the accident. Hence, the learned Tribunal ought to have passed the judgment and award imposing the liability of payment of compensation on the insurance company, the respondent No.2 herein.

[11] The alleged accident occurred due to negligence on the part of the deceased husband of the claimant respondent No.1 and as such the award of compensation passed by the learned Tribunal decided the negligence in driving the bike on the O.P. No.1, the appellant herein, is illegal and not justified.

[12] The learned Tribunal has failed to go through the seizure list submitted by the concerned P.S. Salema along with the copy of the FIR submitted by the respondent by collecting from GR case No.257 of 2007 wherein the copy of the insurance policy certificate was there and exhibited by this learned Court and thereby very illegally imposed the liability of payment of the awarded amount of compensation upon the appellant.

[13] Mr. Deb, learned counsel appearing for the appellant has submitted that at the time of alleged accident, the motorcycle was insured

with the respondent No.2. The letter of authentication dated 03.02.2020 issued by the Divisional Manager, Oriental Insurance Company Ltd., to the appellant and the copy of the policy dated 18.01.2007 being certified by the concerned officer of the insurance company on placing the photocopy of the original policy as was holding by the O.P. No.1, the appellant are also annexed in this appeal as Annexure-7.

[14] True it is, that the learned tribunal had not considered the fact that the vehicle was insured with the said insurance company and in view of the above discussion it is crystal clear that at the time of alleged accident, the motorcycle was insured with the insurance company and the letter of authentication dated 03.02.2020 also issued by the Divisional Manager, Oriental Insurance Company Ltd., to the appellant along with the copy of the policy dated 18.01.2007 being certified by the concerned officer of the insurance company. Thus, the insurance company i.e. Oriental Insurance Company Limited, is liable to pay the total amount as awarded by the Tribunal below in favour of the claimant-respondent No.1 within a period of 2[two] months from the date of receipt of the copy of this judgment.

[15] In view of above discussion and observation, the present appeal stands allowed and disposed of.

CHIEF JUSTICE (ACTING)

A.Ghosh