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Judgment
C.A.N. 832 of 2018 is an application for withdrawal of compensation awarded by the learned Judge, Motor Accident Claims Tribunal, Durgapur since
secured by the appellant/insurer in terms of a previous order passed by a coordinate Bench. While hearing the application for withdrawal, we have
heard the appeal on its merits with the consent of the parties treating the same as on day’s list. We propose to dispose of the application for
withdrawal and the appeal by this common judgment and order.
The tribunal awarded Rs.11,16,724/- as compensation together with interest @ 6% per annum by recording a finding that the claimants before it were
entitled to such compensation on the accidental death of Tapan Krishna Ray (hereafter the victim) in a motor vehicular accident. The victim
incidentally was the husband of the claimant no. 1, father of the claimant nos. 2 & 3 and son of the claimant no. 4. Such award is the subject matter of
challenge in the appeal being F.M.A. 2248 of 2013 at the instance of an insurer which was found liable to bear the compensation payable to the
claimants.
The only ground of challenge raised by Mr. Pahari, learned advocate for the appellant/insurer is that the truck bearing registration no. WB-39/7409
was not involved in the accident and it was a truck bearing registration no. WB37/4661 that caused the accident resulting in the death of the victim;
hence, as the insurer of the truck bearing registration no. WB-39/7409, the appellant/insurer is not liable to bear compensation.
This being the only point raised by Mr. Pahari, we have looked into the evidence that was adduced before the tribunal. On the basis of our
appreciation of the evidence that was adduced, we are convinced that the point raised in this appeal is without merit and the appeal is liable to be
dismissed. Immediately after the accident that took away the life of the victim, his elder son (claimant no. 2) lodged a written complaint dated 14th
October, 2008 with the Officer-in- Charge, Coke-Oven Police Station, Durgapur alleging that while the victim was driving a motor cycle on that very
day, he was knocked down from behind by a truck bearing registration no. WB-37/4661. Based on such complaint, Coke-Oven Police Station F.I.R.
No. 92/2008 under Sections 279/338/304A/427 of the Indian Penal Code against the driver of the truck bearing registration no. WB-37/4661 was
registered. Investigation of the F.I.R., however, revealed that the truck bearing registration no. WB-39/7409 was involved in the accident and not the
truck bearing registration no. WB-37/4661.
We have looked into the police report under Section 173 of the Code of Criminal Procedure (chargesheet) which was an exhibit before the tribunal. It
appears therefrom that the complainant was not an eye witness of the accident. He had received information on telephone about the accident and had
visited the spot, where he found a stationary truck bearing registration no. WB-37/4661. In view thereof, he had perceived that the said truck was
involved in the accident and lodged the complaint with the police mentioning its registration number. However, later on, from the people who were
there at the accident spot, he came to learn that the truck bearing registration no. WB-39/7409 was the offending vehicle and this was duly informed
to the police.
We have also considered the oral evidence of P.W.2, the eye witness. In course of investigation by the police, he had informed the investigating
officer of the truck bearing registration no. WB-39/7409 being the offending vehicle and not the truck bearing registration no. WB-37/4661. In course
of trial before the tribunal, the complainant as P.W.1 and the P.W.2 stuck to their earlier version. We have checked up their cross-examination,
conducted at the instance of the appellant and do not find any effort worth the name on the part of the appellant to prove their essential and material
case to establish that the truck bearing registration no. WB-39/7409 was not involved and that it was the truck bearing registration no. WB-37/4661
which caused the accident.
The effect of omission on the part of a party to place its relevant and essential case in course of cross-examination of a witness supporting the claim
of the plaintiff came up for consideration before a co-ordinate Bench of this Court in the decision reported in AIR 1961 CALCUTTA 359 (A.E.G.
Carapiet Vs. A.Y. Derderian). We can do no better than quote paragraph 10 of the decision. It reads as follows :-
“10. The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in
cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a
technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the
other side of the actual case that is going to be made when the turn of the party on whose behalf the cross-examination is being made comes to give
and lead evidence by producing witnesses.
It has been stated on high authority of the House of Lords that this much a counsel is bound to do when cross-examining that he must put to each of
his opponent’s witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks
no question with regard to this, then he must be taken to accept the plaintiff’s account in its entirety. Such failure leads to miscarriage of justice,
first by springing surprise upon the party when he has finished the evidence of his witnesses and when he has no further chance to meet the new case
made which was never put and secondly, because such subsequent testimony has no chance of being tested and corroborated.â€
In view of the absence of an effective cross-examination of P.W.1 and P.W.2, we are of the considered opinion that the appellant utterly failed in its
effort to discredit them and the tribunal was right in relying on their versions to hold that the truck bearing registration no. WB-39/7409 was involved
and not the truck bearing registration no. WB37/4661. For the reasons aforesaid, we dismiss the appeal. There shall, however, be no order as to costs.
The appellant is directed to compute the sum payable on account of interest @ 6% per annum on the compensation awarded, as directed by the
tribunal, and credit the bank account of the respondents/claimants by National Electronic Fund Transfer (NEFT) within a month from date of service a
copy of this judgment and order. The respondents/claimants shall, within a week from date, inform the appellant/insurer the particulars of the bank
account in which the interest is to be credited.
The amount of compensation that has been deposited by the appellant with the Registrar General together with accrued interest shall be released in
favour of the respondents/claimants in accordance with law, as early as possible but preferably within 8 (eight) weeks from date of an approach being
made in this behalf. Needless to observe, since the mother of the victim has passed away during the pendency of the appeal and her heirs are already
on record, the compensation will be shared equally amongst the widow of the victim and her two sons. The application for withdrawal stands disposed
of. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.