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Sk. Samsher Alam v/s Sri Prasanta Gyan & Another


Company & Directors' Information:- ALAM & CO LTD [Strike Off] CIN = U60210WB1946PLC014227

Company & Directors' Information:- GYAN INDIA PRIVATE LIMITED [Strike Off] CIN = U80301AS1995PTC004550

Company & Directors' Information:- GYAN AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U45209DL1990PTC039654

    F.M.A.T.No. 873 of 2014 with C.A.N.Nos. 7734, 7735 & 10533 of 2014

    Decided On, 12 March 2015

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE JYOTIRMAY BHATTACHARYA & THE HONOURABLE MR. JUSTICE TAPASH MOOKHERJEE

    For the Appellant: Sk. Hasan Salhauddin Ahmed, Reshmi Rehman, Advocates. For the Respondents: R1, Ali Imam Shah, Advocate. For the Insurance Company: Rajesh Singh, Advocate.



Judgment Text

Re: CAN 7734 of 2014 (condonation of delay)

Jyotirmay Bhattacharya, J.

This first miscellaneous appeal was filed beyond the prescribed period of limitation. There was 457 days delay in filing this appeal.

Reason for the delay has been explained by the appellant/applicant in this application for condonation of delay. It is stated therein that though notice relating to the claimant’s application under Section 166 of the Motor Vehicles Act was served upon the appellant being the owner of one of the offending vehicles, but the appellant did neither appear in the said proceeding before the Tribunal nor contested the same under the impression that since his vehicle was insured under a policy of insurance issued by the insurer viz., Cholamandalam MS General Insurance Company Limited, the insurer will contest the said proceeding.

Fact remains that the insurer of the appellant’s vehicle was not made a party in the said proceeding before the Tribunal. No notice was served upon the Insurance Company. Under these circumstances, the said proceeding was decided on contest against the Managing Director, South Bengal State Transport Corporation and ex parte against the appellant herein. Immediately after the appellant herein came to know about the said ex parte award, he filed an application under Order 9 Rule 13 of the Code of Civil Procedure before the Learned Tribunal seeking setting aside the ex parte order. The said proceeding was ultimately rejected on contest on 2nd July, 2014. Immediately thereafter, the instant appeal was filed on 30th July, 2014 for challenging the award passed by the Learned Tribunal in the said proceeding which arose out of the claimant’s application under Section 166 of the Motor Vehicles Act. In this way delay was caused.

After hearing the learned advocates of the parties and after considering the explanation given by the appellant/applicant for such delay, we are of the view that the reason for the delay has been sufficiently explained by the appellant/applicant in this application for condonation of delay. Accordingly, delay in filing this appeal is condoned. Let the appeal now be registered.

The application for condonation of delay being CAN 7734 of 2014 is thus disposed of.

Re: CAN 10533 of 2014 (Addition of Party)

In connection with this appeal, an application for addition of party was filed by the appellant praying for addition of the Insurance Company viz., Cholamandalam MS General Insurance Company Limited as respondent no.3 in this appeal. It is stated in the said application that since the appellant’s vehicle was duly insured at the time when the accident occurred under a policy of insurance issued by the said Insurance Company, the said Insurance Company is a necessary party in this appeal as per the provision contained in Section 168 of the Motor Vehicles Act.

We find substance in such contention of the appellant as Section 168 of the Motor Vehicles Act provides that on receipt of an application under Section 166 of the Motor Vehicles Act, the Tribunal is required to serve notice upon the insurer about the filing of the said claim petition. As such, we allow the appellant’s prayer for addition of the said Insurance Company, viz., Cholamandalam MS General Insurance Company Limited, 'Dare House', 2nd Floor, N.S.C. Bose Road, Chennai-600 001 as respondent no.3 in this appeal.

The concerned department is thus directed to amend the cause title of the memorandum of appeal by impleading the said Insurance Company as respondent no.3 in this appeal.

The application for addition of party being CAN 10533 of 2014 is thus allowed.

Re: FMAT 873 of 2014

Immediately after the application for addition of party is allowed and the appeal is regularized, we are requested by the learned counsel appearing for the parties to consider the appeal on merit by dispensing with the requirement of filing paper book in this appeal. we are also informed by the learned counsel of the parties that the appeal is of such nature which can be decided on the materials available before this Court. Accordingly by consent of the parties, we have taken up the appeal itself for hearing by dispensing with the requirement of filing paper book in this appeal.

Since Mr. Singh, learned advocate is appearing on behalf of the Insurance Company viz. Cholamandalam MS General Insurance Company Limited, service of notice of appeal upon the said Insurance Company is dispensed with on the undertaking given by Mr. Singh for filing Vakalatnama on behalf of his client in course of this day.

Let us now consider the merit of this appeal in the facts of the instant case.

This first miscellaneous appeal is directed against the judgment and/or award dated 29th January, 2013 passed by the Learned Judge, Fifth Motor Accident Claims Tribunal, Burdwan in M.A.C. Case No. 44 of 2010/238 of 2010.

The application under Section 166 of the Motor Vehicles Act was filed by the claimants claiming compensation as he sustained injury due to an accident in which two motor vehicles were involved. One of such motor vehicles was owned by South Bengal State Transport Corporation. The said vehicle was not insured and as such the Managing Director, South Bengal State Transport Corporation was impleaded as opposite party no.1. The owner of the other offending vehicle being WB-41C/1500 was impleaded as opposite party no.2 therein. Though the said vehicle was insured on the relevant date of the accident under a policy of insurance issued by Cholamandalam MS General Insurance Company Limited, but the said insurer was not impleaded as a party in the said proceeding. One of the hands of the claimant had to be amputed and the doctor certified the extent of his disability as 80%. He thus claimed compensation amounting to Rs.4.5 lac as he lost one of his hands due to rash and negligent driving of both those offending vehicles.

The Learned Tribunal after examining the materials on record including the pleadings and evidence of the parties came to a finding that involvement of both the vehicles in the accident and rash and negligent driving of both the vehicles causing such accident have been proved by the claimant. The Learned Tribunal held that the victim at the time of the said accident was aged about 27 years and as per the schedule prescribed under the Workman’s Compensation Act, the extent of his injury and/or the extent of loss of his earning capacity was 70%. The Learned Tribunal also held that having regard to the fact that the victim was a graduate, he could have earned Rs.2000/- per month by imparting tuition to the students. On the basis of such findings, the Learned Tribunal assessed the compensation payable to the claimant at Rs.3,32,400/-.

Since both the vehicles were responsible for the said accident, the Learned Tribunal directed both the opposite party no.1 and the opposite party no.2 to pay the said compensation amount together with interest @7% per annum from the date of filing of the claim petition till realisation thereof in equal share.

The opposite party no.2 viz. the owner of one of the offending vehicles being WB-41C/1500 is aggrieved by the award passed by the Tribunal. It is contended by the appellant that since his vehicle was duly insured on the date of the accident under a policy of insurance issued by the Insurance Company viz., Cholamandalam MS General Insurance Company Limited, the Tribunal ought not to have disposed of the said proceeding without serving notice relating to the said claim petition upon the insurer of his vehicle inasmuch as Section 168 of the Motor Vehicles Act casts a duty upon the Tribunal to serve a notice upon the insurer before deciding the claim petition.

We find substance in such contention of the appellant and accordingly we set aside the impugned award and send the claim petition to the Learned Tribunal on remand for retrial afresh after adding the insurer of the vehicle of the opposite party no.2 as opposite party in the said proceeding, provided however the claimant/respondent no.1 herein files appropriate application for adding the insurer of the vehicle of the appellant herein as opposite party in the said proceeding within four weeks from date.

Needless to mention here that if the insurer of the vehicle of the appellant is added as a party in the said proceeding, the Insurance Company should be given an opportunity to contest the said proceeding in accordance with law.

We are informed by the learned advocate appearing for the appellant that the entire awarded compensation which was payable by his client with interest has already been deposited by him wi

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th the Learned Registrar General of this Court in pursuance of an order passed by the other Division Bench of this Court on 28th August, 2014. We thus make it clear that the appellant is permitted to withdraw the said amount upon compliance of necessary formalities in this regard. In view of the fact that the award has been set aside and the claim petition has been remanded back to the Learned Tribunal for retrial, the appellant is at liberty to seek appropriate relief regarding release of his security before the Learned Executing Court. The appeal is thus disposed of. Re: CAN 7735 of 2014 (Stay) In view of disposal of the appeal in the manner as aforesaid, no further order need be passed on the stay application. The said application being CAN 7735 of 2014 is thus deemed to be disposed of. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.
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