KALICHARAN BOOK SELLERS Vs. MANMATH CHOUDHURY

JUDGEMENT

(1.) This is an appeal against the judgment and award dated 6.1.86 of the Member, Motor Accidents Claims Tribunal, Kamrup, Gauhati in Motor Accident Claim Case No. l(K)/79.

(2.) The brief facts are that the respondent No. 1 filed the aforesaid Motor Accident Claims Case before the Motor Accident Claims Tribunal, Kamrup, Gauhati, claiming compensation of Rs, 1,50,000/- from the appellant for an accident that took place on 14-7-78 between Jeep No. WBB 748 owned by the appellant and the Motor Cycle No. OSU 9400 driven by the respondent Nol. The aforesaid claim of the respondent No. 1 was contested by the appellant who in his written statement filed before the Motor Accidents Claims Tribunal, Kamrup, Gauhati pleaded, inter-alia, that the vehicle of the appellant involved in the accident was off the road for the purpose of repairs and was not used by the appellant and one Shri Pradip Chandra Kalita who was not an employee of the appellant and was not permitted by the appellant to drive the said vehicle, took away the vehicle from the garage on the date of the accident and for such act of a person who -was not an employee of the appellant, the appellant is not liable. It was furthar pleaded in the written statement that the vehicle was duly insured under Mctor Vehicles Act, 1939 with the New India Assurance Company Limited, Gauhati Branch, and as such, liability for compensation, if any would be borne by the said insurer and not by the appellant. On the basis of the pleadings between two parties, the Tribunal framed five issues, examined witnesses on behalf of the respondent No. 1 and the appellant and by the impugned judgment and award dated 6-1-86" awarded a compensation of Rs. 50,000 in favour of the respondent No. 1

(3.) At the hearing of the appeal, Mr. D.K. Talukdar, learned counsel for the appellant, submitted since in the written statements filed by the appellant before the Tribunal a specific plea was taken that the vehicle was insured with the New India Assurance Company Limited, the said insurer should have been impleaded as party by the Tribunal but since this has not been done by the tribunal, the impugned judgment and award should be set aside and the case be remanded to the Tribunal with a direction to implead the insurer and decide the matter afresh. In my opinion, this course of action suggested by Mr. Talukdar will delay the final adjudication of the claim of the respondent No. 1 unnecessarily and as the New India Assurance Company Limited has been impleaded as respondent No. 2 in this appeal, the question as to whether the vehicle was insured with the insurer and the said insurer was liable for the compensation to be paid to the respondent No. 1 cam be decided in this appeal, if necessary, by taking additional evidence. Mr. Talukdar submitted that the vehicle was, in fact, insured on the date when the accident took place and the insurance cover relating to the vehicle was seized by the police during the investigation of the accident and it for this reason that the appellant could not produce the insurance cover before the Tribunal. He further submitted that the fact that the insurance cover was seized by the police alongwith other papers relating to the vehicle has been stated by Shri G. Patowary, the police officer who investigated into the accident case, who was examined as DW-1 on behalf of the appellant before the Tribunal. On a reading of the statement of DW-1, however, I find that without referring to any records of the investigation, and purely on the basis of his memory, he has made the following statement in course of his examination-in- chief: