NIRUPMA DUTTA Vs. TEK BAHADUR CHETRI

JUDGEMENT

(1.) This is an appeal so preferred by Smti. Nirupama Dutta, W/O Shri Satya Ranjan Dutta against the Judgment and Award dated 31.5.93 passed by the learned Member, MACT, Kamrup at Guwahati in MACT Case No. 340(K)/90 directing the sole appellant (owner of vehicle No. ASE-8666 Ambassador Car) who figured in the said MACT case to be opposite party No. 1 as to pay the award amount to the claimant to the tune of Rs. 1,12,000/- with the interest at the usual rate of 12 per cent per annum from the date of filing of the said claim petition to the date of realisation to be paid to the claimant Shri Tek Bahadur Chetri figuring in this appeal as respondent No. 1.

(2.) In nut shell, the claimant's case is that on 25.1.90 in the morning hours while he (Tek Bahadur Chetri) was having a morning walk alongwith Sri Sanjoy Das (PW2), near Hostel No. 4 of the Assam Engineering Institute, the Ambassador Car in question knocked him from the back for which he sustained injuries in the nature of permanent disablement. The owner of the said vehicle, according to the claimant was Smti. Nirupama Dutta, the present appellant and the claim petition the name of the Driver was shown by the claimant to be Shri Kamal Deo Roy, who figures as respondent No.2 in this appeal. Respondent No. 3 is the Divisional Manager of M/s. Oriental Insurance Co. Ltd., Khanapara, Guwahati. Shri Tek Bahadur Chetri had claimed an award of Rs.2,85,000/- under different heads as detailed in his claim application. The opposite parties in the said claim case filed their WS and contested the proceeding and the WS so filed by the owner of the vehicle, the present appellant is dated 3rd May, 1991. The WS so filed by the Driver Sri Kamal Deo Roy, is dated 1.11.91 with that the WS filed by opposite party No. 3 the Oriental Insurance Co. Ltd. is dated 4th March, 1991. The issues were so framed in the said claim case and the learned Member, MACT was also pleased as to record the evidence of 4 of the PWs and 5 of the DWs. PW4 is the claimant himself, PW1 is the Medical Officer examining claimant's injury, PW2 Sri Sanjoy Das is the person said to have been walking with the claimant on the said morning when accident took place and PW3 is Shri Uma Kanta Bora, A.S.I., who had investigated the matter when FIR was also lodged in connection with this accident U/S 304(A) of the IPC. Out of the DWs examined, DW1 is the Driver Kamal Deo Roy, DW1 A is Shri Pabitra Kumar Tamuly retired Principal of Girls' Polytechnic School, DW2 is Shri Ananda Chandra Mishra, a Lecturer of Assam Engineering Institute, DW3 is Shri Satya Ranjan Dutta, DW4 is Shri S.K. Deb Choudhury, Senior Divisional Manager, M/ s. Oriental Insurance Co. Ltd. In the course of proceeding before the learned Member, MACT in the instant case, it has come in evidence that at the time of the accident taking place when the said vehicle was in use, the occupants were the husband of the owner of the vehicle Shri Satya Ranjan Dutta, Shri Kamal Deo Roy and daughter of the owner Smti. Nirupama Dutta. Evidence was adduced also on this point that after the accident, DW3 Shri Satya Ranjan Dutta paid Rs. 11,000/- to Shri Tek Bahadur Chetri for meeting expenses relating to his treatment which is said to have been given by way of loan and on this point also some of the witnesses are particularly examined and they are: DW3 - Shri Satya Ranjan Dutta DW2 - Shri Ananda Chandra Mishra and DW1 - Shri Pabitra Kumar Tamuly. It is, in this light, that the learned Member, MACT in the impugned Judgment although held the claimant liable for payment of Rs. 1,23,000/ - but deducted the amount of Rs. 11,000/- paid and directed the owner of the car as to pay Rs. 1,12,000/- only with interest as detailed above. This finding was arrived at by the learned Court below holding that at the time of occurrence the car in question was being driven by DW3 Shri Satya Ranjan Dutta, the husband of the owner of the vehicle having no driving licence and, therefore, though the said vehicle was insured at the relevant period, the insurer would not be liable for giving compensation.

(3.) Heard Mr. A.K. Bhattacharyya, the learned seni or counsel for the appellant owner Smti. Nirupama Dutta, Mr. J. Sarma, the learned counsel for respondent No. 1 Tek Bahadur Chetri, Shri R.P.Singh, the learned counsel for the respondent No. 2 (Kamal Deo Roy) Driver and Shri S.K. Barkataki, the learned counsel for the respondent No. 3, the Divisional Manager, M/s. Oriental Insurance Co. Ltd. Mr. A.K, Bhattacharyya, the learned counsel for the appellant has submitted that the learned Member, MACT has erred in arriving at a conclusion directing the owner of the vehicle i.e. the appdllant as to pay the award amount to the claimant Shri Tek Bahadur Chetri. It is emphatically argued that at the relevant time the said vehicle was being driven by Shri Kamal Deb Roy was having a valid driving licence and in that light, when the said vehicle was insured and the Insurance Policy was very much valid on the date of occurrence, in no way the respondent No. 3, the Oriental Insurance Company Ltd. being represented by its Divisional Manager could have been exonerated from his liability as to pay the amount awarded as compensation to the claimant for his permanent disability. By referring to the relevant portion of the evidence of the witnesses so examined before the MACT Court it is further pointed out that PW2 and PW4 are very specific in detaining with regarding their having an occasion to see Kamal Deb Roy driving the vehicle at that time and as far as PW4, the claimant is concerned, he can be said to be the most competent witness on this point, so, is the case with PW2 Sanjoy Das havingmorning walk on that morning with Tek Bahadur Chetri. It is further pointed out that Shri Satya Ranjan Dutta as DW3 has also given clear pidure with regard to the said vehicle being driven by Kamal Deb Roy at that time and also by referring the evidence of DW2 Shri Ananda Chandra Mishra, it is pointed out that his quarter was adjacent to the quarter to the house of Smti. Mirupama Dutta and he had an occasion to see on the morning on 25.1.90 Sri Kamal Deb Roy taking out the vehicle from her quarter and driving it away. Mr. Bhattacharyya, the learned counsel submits that this also goes to show that the owner of the vehicle Smti. Nirupama Dutta had thus on that morning given the vehicle in question in the hands of a person i.e. Kamal Deb Roy being the Driver of the department of her husband having valid licence and flat being the position, on no account it can be said that by the owner, the vehicle was given to be driven by a person having no valid licence. It is further submitted that in the instant case it can safely be said that the owner of the vehicle i.e. the appellant had given the car to Kamal Deb Roy who was driving for the purpose of the owner having valid licence and was hence her agent. In support of his this contention, he has referred to a reported case (1995 (2) GLT45S) 1996(2) GLR Page 159, Kalicharan Book Sellers - Vs- Manmath Choudhury & Ors. Attention is drawn to para 6 of the above-mentioned reported case.