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Judgment
Biswajit Palit, J
Heard Mr. Suman Bhattacharjee, Learned counsel appearing for the present appellants as well as Mr. T.K. Deb, Learned counsel appearing for the respondents No.1 to 4, Mr. S.D. Choudhury, Learned counsel appearing for the respondent No.5, Mr. S.B. Debnath, Learned counsel appearing for the respondent No.6 and Mr. G.S. Das, Learned counsel appearing for the respondent No.7.
In course of hearing, Mr. Suman Bhattacharjee, Learned counsel appearing for the appellants submitted that the present appellants have challenged the award dated 16.03.2018 passed by Learned Motor Accident Claims Tribunal No.2, West Tripura, Agartala in connection with Case No.T.S.(MAC)No.129 of 2010. By the said judgment/award, Learned Tribunal allowed the claim petition filed by the respondent-claimants imposing liability upon the owner of the offending vehicle Mini bus bearing registration No.TR01-A-1445 namely Sri Anil Chandra Debnath and also against Sri Sajal Deb, owner of the TATA Truck bearing registration No.TR-01-K-1747. But during pendency of the case before the tribunal, the predecessors of the appellants expired on 25.05.2015 but the claimant-respondents did not take any step for substitution of the legal heirs of OP No.1 and on that relevant point of time, the OP owner, Sri Anil Debnath had valid Insurance certificate of the offending vehicle. So, Learned counsel for the appellants submitted before the Court to allow the present appellants to adduce additional evidence remanding back the case to the Learned tribunal below.
Mr. T.K. Deb, Learned counsel appearing for the respondents No.1 to 4 has fairly submitted before the Court that those respondents have no objection if the appellants be allowed to adduce additional evidence.
Mr. S.D. Choudhury, Learned counsel appearing for the respondent No.5 i.e. United India Insurance Company Limited submitted that the Insurance Company Limited had no fault at any time and all the parties before the Learned tribunal were negligent and they did not take any step to prove the Insurance certificate to substantiate the case resulting which the Learned tribunal fastened the liability to the owners of the vehicle and urged before the Court to allow the prayer of the appellants by setting aside the judgment so that the appellants can produce the relevant documents and at the same time the Insurance Company also may take proper defence.
Mr. S.B. Debnath, Learned counsel appearing for the respondent No.6 submitted before the Court to pass appropriate order.
Mr. G.S. Das, Learned counsel appearing for the respondent No.7 submitted that the prayer of the appellants may be considered but in respect of respondent No.6, the owner of the TATA Truck bearing registration No.TR-01-K-1747, he submitted that since the tribunal has fastened the liability of the compensation with the owner of the said vehicle and he did not file any appeal challenging the award, so there is no scope to modify the judgment in respect of the owner Shri Sajal Deb and urged before the Court to upheld the judgment against the OP No.3, Shri Sajal Deb, owner of the TATA Truck bearing registration No.TR-01-K-1747.
Considered.
For the sake of convenience, I would like to refer herein below the operative portion of the judgment/award of the Learned tribunal dated 16.03.2018 in T.S.(MAC)No.129 of 2010 :
“25. In the result, therefore, the application under section 166 of the M.V. Act, 1988 filed by the claimants, namely Smt. Putul Shil, Shri Rohit Shil, Shri Rupam Shil and Shri Manti Shil, is allowed on contest.
A sum of Rs.10,78,000/-(rupees ten lacs seventy eight thousand) only is awarded to the claimants as compensation.
The O.P. No.1 Sri Anil Chandra Debnath, owner of the Mini bus bearing No.TR01-A-1445 and the O.P. No.3, Sri Sajal Deb, owner of the TATA truck bearing registration No.TR01-K-1747, shall pay the compensation awarded to the claimants in equal share within a period of 30(thirty) days from the date of award in terms of Section 168(3) of the Act. The amount of compensation shall carry interest @ 6% per annum from the date of presentation of the claim petition before the Tribunal on 18/03/2010 till realization.
The amount of compensation of Rs.40,000/-(rupees forty thousand) awarded as loss of consortium shall be treated as personal compensation of claimant No.1, the widow of the deceased and the rest amount shall be equally shared by all the claimants.
27 At the time of filing of the claim petition, claimants No.2, 3 & 4 were minor. By this time, claimants No.2 & 3 have either become major or nearly to become major. The claimant No.4 is still minor. Hence, the entire share of compensation of claimant No.4 be kept in fixed deposit till his attaining majority.
Out of total amount of compensation, a sum of Rs.50,000/- (rupees fifty thousand) each be released to the claimants No.1, 2 & 3. The amount (Rupees fifty thousand) payable to each of the claimants No.2 & 3 be released on their attaining majority and remaining amount be kept in fixed deposits in phased manner equally in three fixed deposit schemes with UCO Bank, District Court Branch, Agartala for a period of three years, five years and seven years under the following terms and conditions :
i) The interest on the fixed deposits be paid monthly to the claimants.
ii) The monthly interest be credited automatically in the Savings Accounts of the claimants.
(iii) Original fixed deposit receipts be retained in the Bank in safe custody. However, a pass book of FDRS be given to the claimants along with the photocopy of the FDR. At the time of maturity, the fixed deposit amount shall be automatically credited in the Savings Bank account of the claimants.
iv) No cheque book be issued to the claimants without permission of the Tribunal. However, a photo identity card be issued to the claimants and the withdrawal be permitted upon production of the identity card.
v) No loan or advance or withdrawal be granted on the strength of the FDRs without permission of the Tribunal.
vi) The Bank shall not permit any joint name(s) to be added in the Saving Bank account or fixed deposit accounts of the claimants.
viii) Half yearly statement of accounts be filed by the Bank in the Tribunal.
Any amount of compensation if received by the claimants under “no fault liability count” as contemplated under Section 140 of the Act shall be adjusted to the compensation so finally awarded.
Supply copy of the judgment/award to the claimants and the Ops No.1 and 3 free of cost.”
After hearing detailed arguments of the Learned counsel for the parties appeared therein it appears that there is no dispute on record that the predecessors of the present appellants expired on 25.05.2015 but their legal heirs were not substituted by the present appellants resulting which the Learned tribunal below in absence of proper documents fastened the liability of payment of compensation of the award to the owners of both the vehicles in equal share but as per law a judgment and decree cannot sustain against a dead person.
The alleged incident took place on 28.01.2010 at about 10:15 a.m. at Baskobra near Madhabbari under Jirania Police Station. From the record further it appears that the case was proceeded ex-parte against the owner of the TATA Truck bearing registration No.TR-01-K-1747 as he did not contest the case before the tribunal inspite of receipt of notice by order dated 10.03.2017. It is also on record that challenging the award the said OP No.3 did not file any appeal before any forum. Today also in course of hearing, Learned counsel for the OP owner i.e. the respondent No.6 herein also did not submit anything save and except urging for passing appropriate order. So, I find force on the submission of Learned counsel, Mr. G.S. Das representing the respondent No.7.
From the judgment of the tribunal further it appears that by the said judgment/award Learned tribunal passed an order for interest @ 6% p.a. from the date of presentation of the claim petition before the tribunal on 18.03.2010 to till realization.
Learned counsel for the respondent No.5 fairly submitted before this Court that since the Insurance Company had no fault at any point of time, so he has urged for striking out the interest against the said respondent No.5 @ 6% p.a. from the date of filing the claim petition on 18.03.2010 and to impose interest from the date of passing of the judgment by the High Court to save the Insurance Company from the burden of huge amount of interest for no fault in the event of passing fresh award.
So, after hearing the Learned counsel for the parties at length it appears that it would be prudent if the award dated 16.03.2018 is partly modified with a direction to the Learned tribunal to take evidence of the present appellants afresh allowing the contesting Ops’ to cross-examine the witnesses of the present appellants and also to adduce any witness in support of defence, if any, for the sake of justice.
In the result, the appeal filed by the present appellants is partly allowed. The judgment and award dated 16.03.2018 passed by Motor Accident Claims Tribunal No.2, West Tripura, Agartala in respect of original OP No.1, Anil Chandra Debnath being the owner of Mini bus bearing registration No.TR01-A-1445 is hereby set aside. But the judgment of the tribunal in respect of OP owner, Sri Sajal Deb being the owner of the TATA Truck bearing registration No.TR-01-K-1747 is hereby upheld and accordingly it is affirmed. The Learned tribunal is asked to take evidence of the present appellants allowing opportunities to the other contesting Ops’ to cross examine the witnesses of the present appellants and to allow the OP, Insurance Company to adduce witness, if any, in support of their defence within a period of four months from today i.e. from the date of passing the judgment of this Court. The Learned tribunal shall further determine the amount of interest in respect of the owner of the offending Mini bus bearing registration No.TR01-A-1445 (since dead) or the Insurance Company as the case may be from the date of passing judgment of this Court. The Learned tribunal shall within the stipulated period dispose of the case and pass appropriate orders in accordance with law.
With this observation, the case is disposed of on contest.
A copy of this order/judgment be supplied free of cost to the Learned counsels of the parties.
Send down the LCR along with the copy of the judgment.