ANANDA RAM SAIKIA Vs. NURUL HAQUE

JUDGEMENT

(1.) THIS appeal arises out of an award passed by the learned Member, Motor Accidents Claims Tribunal, 'the Tribunal' for short, in Motor Accident Claim Case No. 7 of 1973. The learned Tribunal, Now-gong, on the claim application of respondent No. 1 awarded a compensation of Rs. 20,000/-in total with a further direction that the appellant shall pay a sum of Rs. 5,000/- and the balance amount of Rs. 15,000/- would be paid by the insurance company, the respondent No. 2. Sterling General Insurance-Co. Ltd., Now gong, Assam was the insurer of the vehicle. The said insurance company has been renamed as 'the Oriental Insurance Company Limited'. The original claim stood at Rs. 50,000/- but the learned Tribunal after considering the facts and circumstances of the case and on scrutiny of the evidence found that a sum of Rs. 20,000/- would be 'just compensation' and accordingly awarded the same. The owner has preferred this appeal being aggrieved by the direction of the learned Tribunal for saddling the liabilities with him to pay a sum of Rs. 5,000/- out of the award amount. The fact giving rise to the claim of the respondent No. 1 may briefly be put herein below:

(2.) ON 5-12-1972 the eldest son of the claimant who was a student of Class V and aged about 13 years met with an accident which was caused by public bus No. ASN 672 belonging to the appellant. The bus was coming, from north to south direction on the Rupahi Silghat P.W.D. road carrying: full passengers. The eldest son of the claimant-respondent No. 1 Abu Bakkar Siddique was standing by the eastern side of the road at Singimari. It was stated that the back door of the bus was open and it hit Abu Bakkar from behind causing severe head injuries. The boy was immediately removed to-Now gong Civil Hospital but he succumbed to his injuries on the next day. The doctor found three injuries which appeared to him to be major. According to the doctor there was a fracture on the humerus and it was narrated by the doctor as injury No. I. As per the opinion of the doctor injury Nos. 2 and 3 were sufficient to cause death apart from injury No. 1. However, non disputed the death of the boy due to the said accident The claimant (father of the boy) preferred the claim for payment of compensation before the Tribunal. The present appellant who was arrayed as opposite party No. I as well as respondent No. 2, insurance company, contested the claim by filing their separate written statements. There is no deniel that vehicle in question was insured and that the accident took place within the coverage period. The insurance company, respondent No. 2. submitted the written statement with limited grounds of contest. In paragraph 1 of the written statement the insurance company has stated that there was no cause of action for the claim against the insurance company. It was also denied in the written statement that there was any fault on the part of the vehicle in question resulting in the death of the boy. The present appellant, however, on various grounds contested the claim denying the liabilities for death. On the basis of the pleadings the learned Tribunal finally framed three issues as follows:

(3.) WITH reference to the claim application Mr. Bhuyan, learned Counsel for the insurance company has made his submission that the proviso to Section 110 A has not been complied with by the claimant and it being a legal defect in entertaining the claim application, the insurance company can take this legal plea in this appeal. Admittedly, this plea was not raised before the Tribunal nor there was any averment in the written statement to this effect. Consequently, no issue could be framed on this point. Therefore, no evidence could be led by the party in this regard.