HINDUSTAN GENERAL INS. SOCIETY LTD. Vs. SATISH CHANDRA PAUL AND ORS.
HIGH COURT OF GAUHATI
Hindustan General Ins. Society Ltd.
Satish Chandra Paul And Ors.
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K.V. Rathnam, A.J.C. -
(1.) THIS appeal by Hindustan General Insurance Society Ltd. is directed against the decree and judgment of Claims Tribunal Tripura, in motor accident case No. 2 of 1962.
(2.) THE facts leading to the filing of this appeal may briefly be stated thus:? On 17 -11 -61 one Satish Chandra Paul, the 1st Respondent herein a vegetable vendor by profession along with other passengers was proceeding to Teliamura on a Jeep bearing No. T.R.T. 46 for purchasing vegetables. The jeep covered a distance of 17 miles from Agartala and at Baramura a lorry bearing No. T.R.L. 215 coming in the opposite direction in a down gradient dashed the jeep as a result the hood of the jeep was broken and an iron rod of the hood hit the head of the cleaner of the jeep resulting in his, instantaneous death. Another iron rod pierced through the leg of Satish Chandra Paul, the 1st Respondent with the result that he was unable to move about. Immediately he was carried to the hospital and was admitted as an in -Patient. He sustained a compound and comminuted fracture of both right tibia and fibula resulting in chronic osteomvelitis. His leg was put in plaster. Though he was discharged from the hospital on 22 -2 -62 he was advised to continue treatment as an out patient and on 8 -5 -62 the plaster was removed but as there was an infection of the wound he was put under plaster again on 19 -6 -62. The plaster was ultimately removed on 2 -8 -62 but as the wound did not heel up he was advised to continue the treatment. On 27 -10 -62 Satish Chandra Paul obtained a medical certificate Ext. P -l and on 16 -11 -62 he filed the application before the Tribunal under Section 110 -D of the Motor Vehicles Act claiming Rs. 30,000/ - towards damages and compensation. The driver of the Jeep and the widow of the owner of the jeep were impleaded as Respondents Nos. 1 and2. The driver of the lorry and the Tripura Transport Out Agency, the owner of the lorry were impleaded as 3rd and 4th Respondents. The 5th Respondent is Hindustan General Insurance Society Ltd. in which the lorry in question was insured. To establish his claim for damages and compensation the Petitioner including himself has examined 4 witnesses P.W. 1 is the Petitioner while P.Ws. 3 and 4 Manmohan and Thakurdas Dutta are the persons who were also travelling in the jeep at the time of the occurrence. P.W. 2 is Dr. Biswas who treated the Petitioner. Respondents Nos. 1 and 2 the driver and the owner of the jeep having filed statement have not contested the application. The owner of the lorry and the Insurance Company filed statements contending inter alia that the jeep was heavily over loaded with passengers that when the lorry was coming on the down gradient the driver of the jeep became nervous lost control of the jeep and dashed against the lorry and though the driver of the lorry tried to avoid the accident the jeep fell upon the lorry and hence it was only the jeep driver that was responsible for the accident. The owner of the lorry pleaded that the Hindustan General Insurance Society in which the lorry was insured has to pay damages. So far as the quantum of damages and compensation is concerned it is alleged that the Petitioner's monthly income was only Rs. 150/ - that he is still running his shop getting Rs. 150/ - a month and hence by reason of the injury sustained by him he cannot claim more than Rs. 150/ - a month. The Insurance Company further contended that the Petitioner's remedy is only against the driver of the lorry for his rash and negligent driving and that the company cannot be made liable. The Insurance Company has also taken the plea that the application is barred by limitation and that no notice was issued to it before condoning the delay under Section 5 of the Limitation Act. On the pleadings the claims Tribunal has settled the following issues for trial:?
(1) Is the opposite party No. 5 a necessary party in the case?
(2) Is the case bad for not impleading the insurer of jeep car No. 46?
(3) Is the case barred by limitation?
(4) Is the Petitioner entitled to get any compensation if so, what amount and against which of the O.Ps.?
(5) Has this Tribunal jurisdiction to try this case?
(6) To what relief, if any the Petitioner is entitled.
(3.) THE Tribunal finding that the Petitioner was prevented from making the application within 60 days of the occurrence of the accident due to sufficient cause condoned the delay and entertained the application. So far as the occurrence is concerned relying on the independent and disinterested evidence of P.Ws. 3 and 4 it found that the collision between the lorry and the jeep was as a result of the fault of the driver of the lorry who while bringing the lorry down the gradient dashed against the jeep as a result of which the hood of the jeep broke down and an iron rod of the hood struck the head of the cleaner of the jeep resulting in his instantaneous death while another iron rod of the hood of the jeep pierced through the leg of the Petitioner consequently the Tribunal held that the Petitioner is entitled to claim compensation.;
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