Arpita Ghosh v. Shiv Prasad And ANR.
IN THE HIGH COURT AT CALCUTTA
[ CIRCUIT BENCH AT PORT BLAIR ] ...
FMA/1/2020 Arpita Ghosh ... Appellant Vs.
Shri Shiv Prasad and Anr.
...Respondents
Mr. Lokesh Chezian ...for the Appellant Mr. Rakesh Pal Gobind ...for the Respondents no.1 December 13, 2022 [MAM] Item No.30 This is an appeal directed against the judgement passed by the Learned Judge, Motor Accident Claim Tribunal, Andaman & Nicobar Islands, Port Blair in connection with MACT Case No.08 of 2012.
The case arose out of one claim application filed on behalf of the minor girl of 13 years who met an accident on 20th January, 2012 while she was proceeding with her sister to attend her school at about 7.15 a.m. At that time she met an accident by the involvement of a Motor Cycle bearing Registration No. AN 01 G 1537 coming with high speed and in rash and negligent manner. As a result, she sustained injury on her right leg. She was taken to nearby Primary Health Centre wherefrom she was referred to G.B. Pant Hospital and admitted there for more or less 15 days. After the accident, Pahargaon Police Station Case No.24 of 2012 under Section 279/338 of IPC was started against the driver of the Motor Cycle and ultimately charge sheet was
submitted against the driver. The said Motor Cycle was duly insured with National Insurance Company Ltd. Owner of the vehicle contested the case by filing written statement denying all the material averments of the claim petition contending inter alia that there was no negligence on the part of the driver of the vehicle and the accident took place due to negligence on the part of the claimant herself.
On behalf of the claimant two witnesses were examined i.e. father of the claimant as PW1 and one Hari Narayan, Inspector of Police attached to P.S. Pahargaon as PW2. In course of their evidence Birth Certificate, Identity Card and Disability Certificate, Certified Copy of the FIR, Charge Sheet and injury report admitted as Exhibits 1 to 7. After considering the evidence on record learned Tribunal dismissed the claim application on two scores i.e. claimant was not examined in the case and father of the claimant deposed without power of attorney and he did not witness the accident. Learned Tribunal has further took assistance of Section 20 of the Evidence Act in this regard. Learned Tribunal relying on a decision of Vidhyadhar-Vs.- Manikrao 2(1999) 3 SCC 573 ignored the facts of minority of the claimant Arpita Ghosh and returned his finding that entire factum of the accident could not be substantiated by the claimant herself by adducing evidence.
On careful perusal of the entire evidence on record I find that accident alleged in this case took place on 20th January, 2012 and father of the claimant deposed before the Tribunal on 6th July, 2015 and during that period the claimant was minor. So father of the minor claimant deposed before the Tribunal in support of claim petition. It is a case under the beneficial legislation. Therefore, the rule of reference, I am of the humble view, has no role to play in respect of a claim petition filed by the minor claimant represented through her father. That apart at the time of deposition on 6.7.2015 the claimant was still minor. Considering all the aforementioned facts and circumstances I find it justified to give an opportunity to the claimant Arpita Ghosh already attended age of majority by lapse of time to depose before the Tribunal in support of her claim.
Accordingly, the judgement passed in MACT Case No.08 of 2012 stands set aside.
The claimant case is being remanded back to the learned Tribunal with a request to take evidence of the claimant Arpita Ghosh and dispose of the claim petition as early as possible preferably within three months from the date of receipt of the record.
Thus the instant appeal being FMA No.001 of 2020 stands disposed of.
No order as to costs.
Let a copy of this order along with the Tribunal record be transmitted back immediately.
(Bibhas Ranjan De, J.)