Bijoli Baidya And ORS v. Bapi Saha And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] ...

CO/30/2023 Smt. Bijoli Baidya and Ors. ... Petitioners/Plaintiffs Vs.

Shri Bapi Saha and Ors. Opposite Parties/Respondents Mr. Ajoy Kumar Mandal ... for the Petitioners/Plaintiffs Mr. Sabith ...for the Respondent Nos.1 & 2 Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ...for the Administration July 19, 2023 [M.A.Mobin] Item No.8 The petitioners are the claimants in M.A.C.T Case filed under Section 166 of the M.V. Act, 1988. Mr. Mandal, learned Advocate representing the petitioners submits that the petitioners are the legal heirs of the deceased who had died in the motor accident. It is the petitioners' case that originally the proceedings were initiated before the learned Court of District Judge at Port Blair. The opposite parties had entered appearance in the matter and thereafter raised certain jurisdictional issues.

Although the Motor accident claims Tribunal had rejected such challenge yet since, such orders were tested before higher form, the proceedings got delayed.

learned Additional District Judge, North and Middle Andaman at Mayabunder for disposal.

According to the petitioners, the petitioners had taken all possible steps for disposal of the aforesaid claim case. They had duly appointed advocates to the represent themselves before the learned Tribunal. Affidavit-in-chief has also been filed on behalf of the claimants.

Unfortunately, by reasons of unforeseen events, inter alia, including the pandemic that the petitioners could not take appropriate steps in the matter. Incidentally, during the Covid period, the claimants could not arrange for an advocate to represent themselves. On 7th September 2021, although, the claimants advocate had sought for time on his personal ground the matter was dismissed.

Subsequently, however, the learned Tribunal was, inter alia, pleased to recall the said order and restore the claim petition. It is still further submitted that the advocate engaged by the petitioners by reasons of his appointment as a Law Officer of Andaman & Nicobar Administration, could not represent the petitioners/claimants any further. Although, the petitioners had engaged a new lawyer who had entered appearance in the matter on 5th December, 2022, by filing fresh Vakalatnama, unfortunately, the learned Tribunal did not grant any further adjournment and was pleased to close the evidence on behalf of the claimants/petitioners.

It is submitted that the aforesaid order prejudicially affects the petitioners. Unless the petitioners are in a position to adduce further evidence in the matter the petitioners shall not be in a position to prove their case and shall suffer irreparable loss and injury.

Mr.

Chakraborty, learned Advocate enters appearance on behalf of the Administration. Mr. Sabith, learned Advocate enters appearance on behalf of the respondent nos.1 and 2.

On a query by this Court Mr. Sabith submits that the respondents have till date not filed any affidavit-in- chief in the present proceedings and the matter has not progressed further.

I have heard the learned Advocates appearing for the respective parties and having considered the materials on record I find that the matter pertains to the year 2015. From the order sheet it would appear that by an order dated 16th December, 2019 the learned Sole member of the Motor Accident Claims Tribunal, North and Middle Andaman, Mayabunder, was pleased to settle and frame the issues.

Subsequently, on 2nd March, 2020 affidavit-in-chief was filed on behalf of the claimants. It appears that primarily, by reason of the lock down and also subsequently by reason of pandemic, the petitioners could not take effective steps in the matter. It is also noticed that on 7th September, 2021 the learned Tribunal was pleased to

dismiss the said case for non-prosecution, inter alia, on the ground that the claimants were not interested to proceed with the case. Subsequently, however, by an order dated 31st October, 2022 in view of the order passed in M.J. 09 of 2021, the claim case was restored to the original file and was fixed for further hearing. On the very next date that is 5th December, 2022 an application for adjournment was filed on behalf of the petitioners, when the learned Tribunal was, inter alia, pleased to reject the said petition for adjournment and to close the evidence of the petitioners/ claimants. From the order sheet it would further appear that 9th January, 2023, was fixed for evidence of the respondents' witness.

I have been able to ascertain from the learned Advocates appearing for the respective parties that the respondents have not filed their affidavit-in-chief till date and the matter has not progressed further.

Taking into consideration the fact that the petitioners had already filed their affidavit-in-chief and were otherwise prevented from appearing before the learned Tribunal during the pandemic and taking into consideration the fact that the petitioners' Advocate by reasons of being appointed as a Law Officer in Andaman & Nicobar Administration could not conduct the case any further and the newly appointed Advocate Mr. Sudip Sutradhar, was in the process of preparing himself and collecting the documents from the previous advocate, when the order dated 5th

December, 2022 was passed, I am of the view that interest of justice would be sub-served if one more opportunity is given to the claimants to adduce further evidence in the matter. The aforesaid opportunity is being granted in the peculiar facts of this case.

Having regard to the aforesaid, I direct the claimant witness Raj Laxmi Baidya to be present before the learned Tribunal on the next available date fixed, for being crossexamined. In the event the claimants' witness chooses not to appear, without any just cause on the date fixed by the learned Tribunal, the witness action in so far as the claimants' witness, who has already filed affidavit in chief shall stand closed. The petitioners, however, shall be at liberty to adduce further evidence and/or present any other witness, if so advised.

The order dated 5th December, 2022 is accordingly set aside.

With the aforesaid observation and/or direction the aforesaid application stands disposed of.

There shall be no order as to costs.

Urgent photostat certified copy of this order, if applied for be made available to the parties on compliance of all formalities.

(Raja Basu Chowdhury, J.)