JUDGMENT

Date : 05-08-2022

1. Heard Mr. J. Kalita, learned counsel appearing for the appellants and Mr.

T. Kalita, learned counsel appearing for the respondents.

2. This appeal has been preferred by the appellant/claimant challenging the judgment and order dated 29/06/2018 passed by the Member MACT, Nalbari in MAC case No 20/2016.

3. The brief facts of the case is that the appellants/claimants have filed a claim case praying for compensation before the MACT, Nalbari on account of the death of the husband of appellant/claimant no 1 and father of appellants/claimants nos. 2, 3 and 4, arising out of a motor vehicle accident which occurred on 21/08/2013. It is stated in the claim petition that the deceased was working as a cleaner for different goods laden trucks plying on different routes and his one trip generally lasted for about 7 to 10 days. The appellants/claimants came to know about the accident only on 29/08/2013 i.e. after the dead body was disposed of by the police due to want of identification of the dead body. The appellant initially filed an application u/s 163 A of MV Act but subsequently they have filed a separate petition u/s 166 of the MV Act. Since the dead body was not identified by any person during post mortem examination and none has mentioned earlier that the deceased was a regular cleaner, the learned Tribunal without any basis has held that the deceased was a gratuitous passenger and the respondents no 2 and 3 i.e. the owner and the driver of the offending vehicle were directed to pay the awarded amount.

4. Being highly aggrieved and dissatisfied with the impugned judgment and order dated 29/06/2018 passed by the Member MACT, Nalbari, the appellant has preferred this appeal before this court.

5. Learned counsel for the appellant has argued that the Tribunal has erred in law as it held that the deceased was not a cleaner of the offending truck but he was a gratuitous passenger and without any application of judicious mind directed the respondent nos 2 and 3 i.e. the owner and driver of the offending truck to pay the awarded amount.

6. It is also the submission of the learned counsel for the appellant that the Tribunal did not consider the evidence of PW3, the investigating officer who conducted the investigation on the accident. According to him, the driver of the said offending vehicle disclosed before him that he picked up one person from Nalbari as there was no handyman in his vehicle. When the truck was overturned, the said person jumped from the offending vehicle. But despite the clear fact that the deceased boarded in the offending vehicle for unloading of its goods, the Tribunal had come to the conclusion that the deceased was a gratuitous passenger and wrongly directed the driver and owner of the offending vehicle to pay the awarded amount instead of directing the insurance company which is totally illegal and perverse and liable to be set aside.

7. On the other hand, learned counsel for the insurance company has contended that it was not proved by the claimant’s side that late Biren Bezbarauh died due to the alleged accident. The GD entry no 385 dated 21/08/2013 shows that an unidentified person was knocked down by a truck. It is also submitted that the insurance company denied the death of the deceased in the accident in question as the name of the deceased did not find place either in the charge sheet or in the post mortem examination report wherein the name of the deceased was written as unidentified. Learned counsel for the insurance company also referred the FIR lodged by the claimant wherein it is mentioned that his father was travelling in the truck and failed to mention the very important fact that his father was travelling as a cleaner in the said truck. Under such backdrop, Insurance Company is not liable to pay any compensation.

8. I have considered the submissions for the learned counsel for the parties. I have also perused the record of MAC case no 20/2016 and the documents available thereon.

9.