High Court · 2012

2. I have heard Mr. M Singh, learned Senior counsel assisted by Mr. S Das, learned counsel appearing for the appellant. None appeared on behalf of the resp ondents today also, though the vakalatnamas have been filed on behalf of respond ent Nos.1 and 3. None appeared on behalf of respondent No.2 despite notice publi shed in two news papers. The case of the appellant is that on 5.9.1995, at about 8-30 PM, the app 3. ellant/claimant was waiting in the Green Valley campus at Paltanbazar to go to D ergaon Police Training Centre, while one Omni bus bearing No.AS-01-B-8316 knocke d down the claimant and he sustained grievous injuries on his person. The accide nt took place due to rash and negligent driving of the driver of the bus. The cl aimant was immediately admitted into the Mahendra Mohan Choudhury Hospital (’MMC Hospital’ for short), Panbazar, Guwahati. The appellant, therefore, filed a cla im petition before the Tribunal praying for compensation of Rs.1,50,000/- (Rupee s one lakh fifty thousand) only.

4. The notices being issued by the learned Tribunal on the alleged owner an d driver as well as the Insurance Company, the alleged owner and the driver choo se not to contest the proceedings. The Insurance Company, however, on receipt of the notice, entered appearance and filed the written statement denying the aver ments made in the claim petition, such denial, however, was not specific.

5. The claimant, in support of his claim, examined three witnesses, namely, (1) Pradip Dutta, ASI, Paltanbazar Police Station, who sent the claimant to the hospital, seized the offending bus and arrested the driver of the bus, (2) Dr. Satyendra Nath Choudhury, Sr. Medical and Health Officer-I, MMC Hospital, who ha d treated the injuries of the claimant and (3) Paramananda Thakuria, i.e. the cl aimant himself. The learned Tribunal in its judgment and order dated 4.4.2001 observed,

6. inter alia, the following: - a. that there was nothing on record to show that the opposite parties are the ow ner, driver and insurance company of the offending vehicle, b. that the claimant had not provided the Accident Information report or police report as provided under the law, c. that the connection of the (cid:28)opposite party (cid:29) with the vehicle No. AS-01-B-8316 has not been shown. d. that the FIR did not disclose that the OP No. 1, M/s Hiran Transport is the o wner of the vehicle and it was insured with the OP No. 3. Thus, the learned Tribunal held the claim-petition to be not maintainable and di smissed the same on contest.

7. esaid judgment and order dated 04.04.2001 of the learned Tribunal. The appellant/claimant has preferred the instant appeal against the afor

8. In the appeal also, the appellant had impleaded (cid:28)M/s Hiran Transport (cid:29) as the respondent No. 1. However, the claimant filed a Misc. Case on 21.09.2010 b eing Misc. Case No. 3092/2010 in the instant appeal. Paragraph Nos. 2 and 3 of t he said miscellaneous application being of relevance in the context of the insta nt appeal, are produced verbatim hereunder: - (cid:28)2. That inadvertently the appellant mentioned the name of the owner of vehicle No. AS-01-B-8316 was M/S Hiran Transport as respondent No. 1 in the M.A.C. case No. 70.(K)/96 as well as in this appeal which knocked down the petitioner/appell ant on 5.9.1995 and fractured his left hand and closed. 3. That the applicant begs to state that it has been detected that the owne r of the vehicle No. AS-01-B-8316 was M/S Kiran Transport, Silphukhuri, Guwahati -3 (cid:29) Misc. Case No. 3092/2010 was allowed by this Court on 30.11.2010 with, i

9. nter alia, the following observation: - (cid:28)By this application the applicant seeks an amendment in the name of the 1st res pondent from M/s. Hiran Transport, Silpukhuri, Guwahati. Mr. Das apprises this C ourt that meanwhile Mr. A.K. Choudhury, learned Advocate has entered appearance on behalf of M/s Kiran Transport, Silpukhuri, Guwahati. As a matter of fact his name is reflected in the cause list. (cid:29) It is quite interesting to note that till the prayer for amendment was a 10. llowed by this Court on 30.11.2010, the name of the respondent No. 1 on file was M/S Hiran Transport and no entity called as M/S Kiran Transport was a party to the proceedings. Nevertheless counsels for M/s Kiran Transport had entered appea rance by filing their vakalatnama on 30.04.2004 itself on behalf of respondent N o. 1.

11. Be that as it may, let us now analyze findings of the learned Tribunal w ith the facts that were actually present before him by the parties. In the claim petition before the learned Tribunal, the owner of the offending vehicle was sh own as (cid:28)M/S Hiran Transport (cid:29). But paragraphs 2 and 3 of Misc. Case No. 3092/201 0 (Supra) clearly show that no entity called (cid:28)M/S Hiran Transport (cid:29) was involved in the present case. Therefore, the learned Tribunal was quite correct in conclu ding that there was no connection between the offending vehicle No. AS-01-B-8316 with the opposite party. The offending vehicle was not owned by M/S. Hiran Tran sport, as the appellant/claimant had himself admitted in the Misc. Case No. 3092 /2010, rather the appellant has claimed that it belonged to M/S Kiran Transport. As such, it cannot be said that the learned Tribunal had committed an error in dismissing the claim-petition when the name of the owner was itself wrongly give n in the said petition. On the other hand, in this appeal, M/S Kiran Transport has chosen to rep 12. resent itself as respondent No.1 not only after the amendment of names had been done following order dated 30.11.2010 passed by this Court in Misc. Case No. 309 2/2010, but even prior to this date despite the fact that their name had actuall y not appeared in the appeal or the claim-petition. Even after the Misc. Case No . 3092/2010 had been filed, M/s Kiran Transport had not made any objection to it s being impleaded as respondent No.1 in the appeal. Therefore, a presumption ari ses that the offending vehicle No. AS-01-B-8316 is indeed owned by M/S Kiran Tra nsport.

13. Therefore, keeping all the above factors in mind, the Court deems it fit to remand the case to the learned Tribunal. However, the name of the opposite p arty No.1 shall be substituted from M/S Hiran Transport to M/S Kiran Transport i n the learned Tribunal. After the learned Tribunal receives the records, it is d irected to issue summons to M/S Kiran Transport in the name and address as shown in Misc. Case No. 3092/2010 of this appeal i.e. (cid:28)M/s Kiran Transport, Silpukhur i, Guwahati-3 (cid:29) to appear and file written statement, if any. The proceedings sha ll continue from this stage before the learned Tribunal. The Tribunal is also di rected to take fresh evidence, if necessary. Further, it is made clear that if t he claimant intends to rely on the record of previous evidence, then he will hav e to produce the witnesses for cross-examination of the respondent No.1. The Court deems this approach to be the fittest one because the actions 14. of M/s Kiran Transport, as set out in paragraph 10 of the appeal creates a stron g presumption that the offending vehicle is owned by them and if that is the cas e, then the appellant/claimant should not be deprived of any compensation for a genuine accident that befell him. On the other hand, this shall also give M/s Ki ran Transport the opportunity to appear before the learned Tribunal and set out its own case and defend itself. In the event M/s Kiran Transport fails to appear before the learned Tribunal and the learned Tribunal is forced to proceed ex-pa rte against it, then there are adequate safeguards under the law for the insuran ce company also.

15. The presumption that M/s Kiran Transport is the owner of the offending v ehicle can be rebutted by the respondent/opposite parties in the proceedings bef ore the learned Tribunal, should they wish to do so.

16. Finally, the learned counsel for the appellant had stated that this is a very old matter requiring early disposal. But in view of the appellant’s own cu lpability in filing the Misc. Case No. 3092/2010 seeking amendment of name after a long gap of 9 years from the filing of the appeal (and 14 years if the period is to be calculated from the date of filing of the claim petition in 1996), the Court hesitates to lay down a specific time frame within which the learned Trib unal is to dispose of the matter. However, it is expected that the learned Tribu nal shall deal with this matter with utmost expedition.

17. The judgment and order dated 04.04.2001 passed by the learned Tribunal i n MAC Case No.70/1996 is hereby set aside. The matter is remanded back to the le arned Tribunal with the observations made above.

19. The appeal is accordingly allowed. No costs. Send down the lower court records forthwith.