NATIONAL INSURANCE COMPANY LIMITED Vs. MAMPI GOSWAMI

JUDGEMENT

(1.) The National Insurance Company being the appellant has preferred this appeal under Sec. 173 of M.V. Act challenging the award dtd. 6/4/2023 passed by Learned Member, Motor Accident Claims Tribunal, Court No.5, West Tripura, Agartala in connection with case No. T.S.(MAC) 199 of 2021. On the other side, the claimant-petitioners of the original claim petition have also preferred a cross-appeal under Order 41 Rule 22 of CPC for enhancement of the award dtd. 6/4/2023 passed by Learned Member, Motor Accident Claims Tribunal, Court No.5, Agartala, West Tripura in connection with the aforesaid case which was numbered as CO(FA) No.22 of 2023. Since, both the appeals have arisen out of a common judgment, so, by this judgment, both the appeals are taken up for disposal.

(2.) Heard Learned Senior Counsel, Mr. S. Kar Bhowmik assisted by Learned Counsel Mr. E. Darlong and Mr. N. Debnath for the appellant Insurance Company. Heard Learned Counsel, Mr. A. K. Pal appearing on behalf of the respondent-claimant Nos.1 to 3 and also heard Learned Counsel, Mr. H. K. Bhowmik, representing O.P. respondent Nos. 4 and 5, being the owner and rider/driver of the offending bike bearing No.TR-01-X-8678 in connection with case No. MAC App 56 of 2023 and also heard the same parties in the connected cross-appeal.

(3.) Before conclusion of the appeal, let us project the subject matter of the claim petition filed before the Claims Tribunal. The respondent-claimants filed one application under Sec. 166 of M.V. Act claiming compensation of Rs.64,53,000.00 due to the death of the deceased, Pallab Banerjee, who succumbed to his death by a road traffic accident on 16/4/2021 at about 13.45 hours at Drop Gate, Agartala under A.D. Nagar P.S. The case of the respondent-claimants before the Tribunal was that on the alleged day, the deceased Pallab Banerjee came out of his house with his auto-rickshaw and went to Drop Gate to a garage of one Guddu on 16/4/2021 at about 13.45 hours for the purpose of repairing which is situated near S.T. Pauls School and keeping the auto-rickshaw on the road side, in front of the said garage, the deceased wanted to restart the auto, that time suddenly one Sumit Das, respondent rider/driver, son of Parimal Das of Gajaria came with another person behind back seat of motor bike bearing No.TR-01-X-8678 rashly dashed the deceased victim who fell down on the hard road and sustained injuries and the local people and the pillion riders shifted the deceased in A.G.M.C and GBP Hospital where said Pallab Banerjee succumbed to his injury on 17/4/2021. Post-mortem examination was done over the dead body of the deceased and according to the claimant-petitioners, the accident occurred due to rash and negligent driving by the driver of the motor bike Sri Sumit Das. It was further submitted that the local witnesses, who were present to the P.O. also stated that the bike was actually driven by Sri Sumit Das, S/o of Parimal Das and in its back seat one Prasanta Das was taken his seat and to save the son of Parimal Das(owner of the bike) the name of one Prasanta was given as a driver, but said Prasanta Das did not ply the bike on that particular time of accident. But the Investigation Officer deliberately and intentionally concealed the name of actual driver Sumit Das and accordingly, laid charge sheet in the name of Prasanta Das against A.D. Nagar P.S. Case No. 2021/ADN/028 dtd. 17/4/2021 under Sec. 279/304A of IPC. It was further submitted that the deceased Pallab Banerjee was a young, energetic, fit and sound healthy person of 41 years age and he was the only bread earner of his family, who were entirely depending upon the income of the deceased and the deceased used to earn money by driving his auto rickshaw and also as rubber tapper and in total he used to earn Rs.40,000.0042,000/- per month. Hence, the respondent claimant-petitioners No.1 to 3 filed the claim petition. The claim was contested by the owner and the rider of the bike and they submitted that the claimant-petitioners are to prove their case and the accident was occurred not for any rash and negligent driving of the rider of the bike and it was further submitted that on that relevant point of time, the offending bike had all the valid documents including the driving licence of the rider of the bike. So, the owner and driver/rider by the W.S. prayed for dismissal of the claim-petition. The appellant, Insurance Company as OP No.3 contested the case by filing W.S. denying the claim of the claimants and submitted that the accident occurred not for rash and negligent driving of the bike bearing No.TR-01-X-8678 and it was also submitted that the claimants are to prove their case by producing all the relevant documents and Insurance Company was not liable to pay any compensation unless valid driving licence and other relevant documents are produced and proved. The Insurance Company also submitted that any breach of policy could disentitle the Insurance Company to pay any compensation. So, the Insurance Company also prayed for dismissal of the claim petition.