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IN THE GAUHATI HIGH COURT (THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
MALASRI NANDI, J.
Panapati Devi – Appellant
Versus
Md. Abidur Rahman And 2 Ors. – Respondents
MAC App. 245 of 2010, 87 of 2011, 233 of 2012
Decided on : 02-02-2022
Constitution of India, 1950 – Article 142 – Motor Vehicle Act – Section 166 – Motor Vehicle accident – Claim Compensation - Case are that original MAC Case filed by Claimant on account of death of her son, who died in an accident which occurred police station and MAC was filed by the claimant on account of death of her husband, who died in same accident - Deceased hired vehicle bearing registration to bring vegetables, in which both the deceased were travelling. It is alleged that vehicle being driven by driver in a rash and negligent manner and dashed against a standing truck on its back as a result of which the said truck again hit backside of another vehicle - Due to the alleged accident, husband of the claimant and son of another claimant died on the spot - Whether in peculiar facts of this case a direction could be issued to Insurance Company to first satisfy the awarded amount in favor of claimant and recover the same from owner of vehicle.
Finding of the Court:
MAC Case show that the Insurance Company has examined one witness then Branch Manager of National Insurance Co. who exhibited policy of vehicle (Mini Truck) - He deposed in his evidence that alleged vehicle was insured as goods carrying vehicle, which is not meant for carrying passengers - It is also stated that as alleged vehicle was goods carrying vehicle and as such no passengers should be allowed to travel therein, as per existing provisions of law - Furthermore, no premium has also been paid for such passengers but he had admitted that at relevant time of accident, alleged offending vehicle was duly insured with National Insurance Company Ltd. vide policy issued under Insurance Policy Act and existing provisions of law - Similar question came up for consideration in National Insurance Company Limited Vs. Bommithi Subbhayamma, 2005(4) RCR(Civ) 829 (SC),wherein, it was held that where passenger is travelling in a lorry as a gratuitous passenger, Insurance Company is not liable for payment of any compensation for death of gratuitous passenger travelling in the goods vehicle - It is also clear that the power vested under Article 142 of Constitution is an extra ordinary jurisdiction which is not exercisable by this Court or the MACT and therefore, it can be said that exercise made under Article 142 of the Constitution cannot be considered as a ratio as decided in several cases of Apex Court - So the prayer for pay and recovery cannot be considered in this case.
Result: Appeals are allowed
JUDGMENT :
1. Heard Mr. S. Khanikar, learned counsel for the appellants/claimants as well as Mr. R.K. Bhatra, learned counsel for the respondents in MACApp. 87/2011 and MACApp. 245/2010. Also heard Mr. S. Dutta, learned Senior Counsel appearing for the respondent no. 9 and Ms. P. Borthakur, learned counsel for the respondent no. 6 in MACApp. 233/2012 and MACApp. 115/2013.
2. This order shall dispose of MACApp. No. 87/2011 (Panapati Devi Vs. Md. Abidur Rahman and 2 Ors.), MACApp. No. 245/2010 (Smt. Romawati Divi Vs. Md. Abidur Rahman and 2 Ors), MACApp. No. 233/2012 (National Insurance Co. LTD. Vs Smti. Panapati Devi and Ors.), MACApp. No. 115/2013 (National Insurance Co. LTD. Vs Smti. Romawati Devi and 8 Ors.). All the four appeals arise out of the common award dated 07.04.2010 passed by learned Member, MACT Sivasagar in MAC Case No. 25/2006 and MAC Case No. 26/2006.
3. MACApp. No. 87/2011 has been filed by the claimant Panapati Devi seeking award of compensation under Section 166 of the M.V. Act on account of death of her husband Seuji Mahato and MACApp. No. 245/2010 was filed by the claimant Romawati Devi on account of death of her son Chandra Bhusan Prasad and MACApp. No. 233/2012 and MACApp. No. 115/2013 have been filed by the National Insurance Co. Limited challenging its liability to pay compensation awarded in favour of the claimants by the learned Tribunal.
4. Brief facts necessary for adjudication of the case are that original MAC Case No. 25/2006 was filed by the Claimant Romawati Devi on account of death of her son Chandra Bhusan Prasad, who died in an accident which occurred on 16.03.2006 at Tamulipathar under Kamargaon police station at Golaghat district and MAC Case No. 26/2006 was filed by the claimant Panapati Devi on account of death of her husband Seuji Mahato, who died in the same accident.
5. On 16.03.2006, the deceased Seuji Mahato (husband of the claimant Panapati Devi) hired the vehicle bearing registration no. AS-04/E-2147 to bring vegetables from Bisumari Chikonmati of Darrang district, in which both the deceased Seuji Mahato and Chandra Bhusan Prasad were travelling. It is alleged that the vehicle being driven by the driver in a rash and negligent manner and dashed against a standing truck bearing registration no. AS-25B/9511 on its back as a result of which the said truck again hit backside of another vehicle bearing no. AS03/7278. Due to the alleged accident, husband of the claimant Panapati Devi and son of another claimant Romawati Devi died on the spot.
6. I have gone through the record of MAC Case No. 25/2006 and MAC Case No. 26/2006 and the Judgment of the learned Tribunal. Elaborate discussion was rendered by the Tribunal and hold that the vehicle in which both the deceased were travelling bearing no. AS-04E-2147 (Mini Truck) was responsible for the alleged accident due to rash and negligent driving by the driver of the said vehicle.
7. The judgment of the learned Tribunal in MAC Case No.26/2006 be reproduced as follows:-
“18. The claimant in her claim application (para-22) has stated that on 16.03.2006, the deceased hired the vehicle bearing registration No. AS-04/E-2147 (Mini Truck), which was involved in an accident at about 12 midnight on National Highway 37 at Tamulipathar under Kamargaon Police Station of Golaghat district. This vehicle dashed against a standing vehicle (Truck), number being AS-25B/9511 from its back side. The claimant did not allege in her original petition about the involvement of vehicle No. AS-03/7278 in the alleged accident. But in her amended application, the claimant has stated that the truck No. AS-25/B-9511 had also hit the Truck No. AS-03/7278 from its back.
19. “ The opposite party Nos. 1,3,4,6 and 9 have categorically admitted the involvement of the Truck No. AS-25/B-9511 in the said accident. Opposite party Nos. 6 and 9 in their written statement have stated that
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