National Insurance Co. Ltd vs Sarifa Khatoon And Anr

1) Heard Mr. S.S. Sharma, learned Senior counsel assisted by Mr. H. Buragohain, learned counsel for the appellant as well as Mr. N. Hoque, learned counsel for the respondent No.1 and Mr. S. Alim, learned counsel for the respondent No.2.

2) By this appeal under section 173 MVA, the appellant has challenged the judgment and award dated 19.01.2012 passed by the learned Member, MACT, Morigaon in MAC Case No.62/2007, directing the appellant-insurer to pay a sum of Rs.3,21,500/- together with 6% interest from the date of filing of the claim petition i.e. on 12.06.2007 till recovery.

3) The case projected by the claimant-respondent No.1 is that her husband Late Azizur Rahman was travelling in a motorcycle bearing registration No.AS-01-V-8527 on 10.06.2005 at 8:50 p.m. with the respondent No.2 who is the owner of the motorcycle as the pillion rider. It is claimed that the motorcycle collided with a bicycle which was being driven in a rash and negligent manner. As a result of the collusion, the husband of the respondent No.1 fell down and sustained grievous injuries and he died while being taken to the hospital at Nagaon. It was projected that the husband of the respondent No.1 had an income of Rs.8,000/- per month and accordingly, compensation of Rs.10,00,000/- was claimed.

4) The appellant entered appearance in the claim petition and filed the written statement. It was claimed that the policy number mentioned by the respondent No.1 belonged to one Jayanta Das in connection with vehicle No. AS-01-S-1140 valid upto 06.04.2006. Thereafter, the respondent No.1 had filed petition No.572 dated 06.06.2009 for amending the claim petition by stating that in the claim petition the policy number of the offending motorcycle was typed as 200110/ 31/ 05/ 620000070 instead of Policy No.200110/ 31/ 05/ 6200000700. The amendment was allowed by order dated 28.08.2009.

5) On the basis of the pleading the following issues were framed by the learned Tribunal:

1) Whether the bicycle was driven rashly and negligently?

2) Whether the claimant is entitled to get any compensation? If so, what quantum?

3) Who should be liable to pay compensation?

6) The respondent No.1 examined herself as PW-1. She had exhibited Police information report (Ext.1), Post-mortem report (Ext.2), Income certificate (Ext.3), Certificate of Ulubari Gaon Burha (Ext.4), Copy of GD entry (Ext.5) and Certificate from DTO, Morigaon dated 06.02.2009.

7) In respect of issues No.1, 2 and 3 it is seen that the accident occurred due to use of the offending vehicle and as the deceased was driving the motorcycle on the basis of a valid licence and, as such, the appellant was directed to pay compensation. In the absence of age proof, the learned Tribunal held that the deceased was aged between 45 to 50 years and by applying the multiplier of 13 and assessing the monthly income of Rs.3,000/-, by deducting 1/3 of his monthly income, the compensation was fixed at Rs.3,12,000/-. In addition to that Rs.2,000/- was awarded towards funeral expenses, Rs.5000/- for loss of consortium, Rs.2,500/-, for loss of estate. Thus total compensation of Rs.3,21,500/- was directed to be paid with 6% interest.

8) The learned Senior counsel for the appellant has submitted that the accident occurred when the offending motorcycle collided with the bicycle which proved that the motorcycle was driven by the deceased in a rash and negligent manner. Hence, it is submitted that as the deceased was driving the motorcycle in a rash and negligent manner, he was guilty of contributing negligence and, as such the entire compensation cannot have been made payable by the appellant.

9) The learned counsel for the respondents No.1 and 2 have made their submissions to sustain the impugned judgment and award dated 19.01.2012.

10) On a perusal of the materials available on record, it is seen that while the respondent No.1-claimant had examined 2 witnesses including herself and one Md. Jehirul Islam. The said witnesses were duly cross-examined the evidence to the effect by the learned counsel for the appellant and in course of cross-examination the evidence to the effect that the accident had taken place due to rash and negligence driving of the bicycle and that the accident did not occur on any fault on part of the deceased could not be demolished.

11) It is further seen that the appellant had not examined any witness to prove that the deceased was guilty of rash and negligent driving of the offending motorcycle. Therefore, this Court has no material to interfere with the impugned judgment and award on merit. However, there appears to be a procedural irregularity on part of the learned MACT, Morigaon in the conduct of trial of the MAC Case No.62/2007. Although the nature of the irregularity does not affect the nature of the claim or the merit of the order, but as the irregularities has come to the notice of this Court, it is the considered opinion of this Court that the trial Court records is required to be corrected.

12) From the trial Court records it appears that the driving licence of the deceased was lost. Accordingly, the respondent No.1 had made a prayer before the learned Tribunal for issuance of direction to the DTO, Morigaon to issue a certified true copy of the driving licence by order dated 27.01.2009. Accordingly, the date was fixed on 16.02.2009. On 16.02.2009, the learned Tribunal had re-fixed the case on 18.03.2009 for production of the driving licence of the deceased. On 18.03.2009, the learned Tribunal took cognizance of the letter from the DTO, Morigaon bearing No. DTMO/2846/09 dated 06.02.2009 by which it was certified that the driving licence bearing No.837/MG/Pvt/104 dated 26.10.2004 was valid from 26.10.2004 to 30.06.2023, authorizing the deceased, namely, Late Azizur Rahman to drive the motorcycle and light motor vehicle. The said certificate was issued in reference to the letter No.DJM/MAC/369 dated 04.02.2009 by the learned Member, MACT, Morigaon. It was further stated therein that no copy of the driving licence would be issued unless the applicant apply for duplicate driving licence with appropriate fees. The said document was kept with the record by order dated 18.03.2009, however, without any formal order from the learned Tribunal, the said certificate dated 06.02.2009 was written and/ or mentioned as Ext.6 in the evidence-on-affidavit which had been submitted on 15.12.2008. Therefore, Ext.6 was unauthorisedly inserted in the evidence-on-affidavit after the same was sworn and filed before the learned Tribunal on 15.12.2008. As a fallout of the unauthorized insertion of Ext.6 in the evidence- on-affidavit by respondent No.1, in para-7 of the judgment and award dated 19.01.2012, the learned Tribunal has referred to only 5 exhibits instead of 6 exhibits, as existed on 15.12.2008.

13) In para-10 of the said judgment, reference to Ext.6 is made. Therefore, it appears to this Court that the procedural lapse on part of the learned Member, MACT, Morigaon by allowing unauthorized correction of the evidence-on-affidavit by the respondent No.1 by inserting Ext.6 in the said evidence-on-affidavit before the learned Tribunal. Accordingly, the said procedural irregularity is required to be corrected by the learned Tribunal. Accordingly, the appellant as well as respondents No.1 and 2 are directed to appear before the learned Member, MACT, Morigaon on 30.07.2019, and obtain necessary instruction. On the said date, the respondent No.1 shall file a fresh set of evidence-on- affidavit. Accordingly, on receipt of the same the learned Member, MACT, Morigaon shall rectify the proceeding by accepting the additional evidence-on-affidavit and upon regularizing the proceeding, the MAC Case No.62/07 shall be disposed of.

14) As on merit, this Court is not inclined to interfere with the judgment and award dated 19.01.2012, this judgment would become operational upon regularization of the proceeding of MAC Case No.62/2007 before the learned MACT, Morigaon.

15) Let the LCR be expeditiously sent back, so that it can be put up before the learned MACT, Morigaon on 30.07.2019.

16) The parties are free to obtain a certified copy of this order and to produce the same before the learned jurisdictional Tribunal, if records are not received by the said Tribunal on 30.07.2019.