Sabita Devi And ORS. v. The Manager And ANR.

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] ...

FMAT /3/2019 Sabita Devi and others ... Petitioners Vs.

The Manager and another ... Respondents Mr. KMB Jayapal ...for the Petitioner Mrs. Anitha Hegde ...for the Respondents December 14, 2022 [MAM] Item No.30 This appeal is directed against the judgement passed by learned Judge Motor Accident Claim Tribunal in connection with MACT Case No. 55 of 2008 passed on 30 July, 2019 whereby the learned Tribunal dismissed the claim petition on the ground as follows:- "Under section 163 A and 166 of MV Act, there is an impediment that a claim can be laid by victim against the owner of driver of insurance company, but no where the act enables the owner/insured to maintain a claim against his insurer under section 147 of the Act."

The claim petition arose out of an application under Section 166 of the Motor Vehicles Act, 1988 on account of death of one Ganesh Bahadur by the involvement of the Motor Cycle bearing registration No. AN 01 C 9303 which was being driven by the deceased himself with one pillion rider, on 08.03.2008 at about 2230 hours. The said Motor Cycle skidded near Halder clinic and the victim fell down and sustained severe injury and he succumbed to the said injury. Deceased was an employee engaged in Cost Guard having monthly income of Rs. 12,188/- per month. At the

time of death he was 40 years of age. Accordingly, claim petition was filed with a prayer for compensation to the tune of Rs. 15,60,064/-. The Motor Cycle was duly insured with the United India Insurance Company Limited. Insurance company contested the claim petition by filing written statement denying all material averments of the claim petition claiming, inter alia, that the vehicle was not involved in the accident which was occurred due to negligent act on the part of the deceased.

To prove the case claimants who being legal heirs of the deceased adduced two witnesses namely claimant No. 1, the wife of the deceased as PW 1 and the pillion rider namely Prasana Kumari Minj as PW 2. In course of their evidence 12 documents were admitted in evidence as Exhibit 1 to 12 including certified copy of FIR, Charge sheet, seizure list, insurance policy, Post Mortem Report and salary certificate etc.

After considering all evidence on record learned Tribunal only took maintainability issue on the ground applicability of provision of Section 147 of the Motor Vehicles Act 1988 and dismissed the claim petition without adjudicating the other issues including the nature of the insurance policy (Exhibit 10).

In this circumstance I find it necessary to set aside the judgement dated 30th July, 2019 passed by the learned Judge Motor Accident Claim Tribunal with a request to dispose of the claim petition afresh on all issues in terms of

evidence adduce in the case including the documents thereon.

With the aforesaid observation the appeal being FMAT/3/2019 stands disposed of.

Considering long pendency of this case since 2008 I request the learned Tribunal to dispose of the case on merit on all issues as expeditiously as possible.

Let a copy of this order be communicated to the learned Judge Motor Accident Claim Tribunal for compliance.

(Bibhas Ranjan De, J.)