ORIENTAL FIRE AND GENERAL INSURANCE CO. LTD. Vs. NANI CHOUDHURY AND ORS.
LAWS(GAU)-1973-9-3
HIGH COURT OF GAUHATI
Decided on September 06,1973

ORIENTAL FIRE AND GENERAL INSURANCE CO. LTD. Appellant
VERSUS
Nani Choudhury Respondents

JUDGEMENT

R.S. Bindra, J. - (1.) THIS appeal by Messrs Oriental Fire and General Insurance Company Ltd., hereinafter called the Company, is directed against the award dated 29.03.70 of the Motor Accident Claims Tribunal, Dibrugarh, awarding a sum of Rs. 15000/ - by way of compensation to Probodh Chandra Ghosh, a minor. The claim petition had been presented to the Tribunal in connection with the death of Subodh Chandra Ghosh, the father of the claimant, who had died as a result of car accident on 02.10.65 near the Circuit House at Dibrugarh. The claimant had pleaded that his father was killed when he was proceeding on his cycle with the claimant sitting on the bar of that cycle, to witness the Durga Puja festival and was hit by an Ambassador car No. ASE -248 owned by Ram Gopal Sarma of Longsoal Tea Estate. That car, it was pleaded further, had been insured with Messrs Hanover Insurance Company Ltd., of which the present Appellant is the successor -in -interest. Subodh Chandra Ghosh was aged about 35 years at the time of his death and he was employed in those days with Messrs Art Gallery, Dibrugarh, as a photographer. It was Nani Choudhury who was the proprietor of the said Art Gallery and it is in his capacity as next friend that Nani Choudhury lodged the claim for compensation on behalf of Probodh Chandra Ghosh.
(2.) NOTICE of the proceedings was served on Messrs Hanover Insurance Company. This Company and Ramgopal Sarma contested the claim on grounds inter alia that the accident had been caused for the reason of negligence of the deceased himself, the contention being that the deceased was driving the cycle rashly, being drunk, and dashed against the car which had been parked on the left side of the road running close the Circuit House for the purpose of replacing a tyre. The contesting Respondents also denied that the monthly income of the deceased, as alleged in the claim petition, was Rs. 250/ - per month. Ramgopal Sarma, it may be mentioned, admitted that the car belonged to him. The Tribunal negatived the contention of the contesting Respondents that the deceased was either drunk to an extent that he could lose control over the cycle or that he had dashed against the car when it was parked. The Tribunal was rather critical of the fact that neither the owner of the car nor the insurer had taken the precaution of examining the driver of that car. The Tribunal took note of the fact that Ramgopal Sarma failed to turn up after having filed the objections against the claim. Practically speaking, therefore, it was the Hanover Insurance Company which fought out the claim for compensation.
(3.) THE Appellant has challenged the award on various grounds including that the claimant had failed to establish that the driver of the car was responsible for the mishap, that the Tribunal having not passed any judgment against the insured it had no right or authority in determining the liability of the insurer, and that the amount of compensation was excessive.;


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