NATIONAL INSURANCE CO. LTD. Vs. MUST. HASINA BEGUM AND ORS.
HIGH COURT OF GAUHATI
NATIONAL INSURANCE CO. LTD.
Must. Hasina Begum And Ors.
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(1.) Heard Ms. S. Roy, learned counsel for the appellant as well as Mr. G. Jalan, learned counsel appearing for the respondents No. 1 to 4 (i.e. claimants) and Ms. M. Choudhury, learned counsel appearing for the respondent No. 8. None appears on call for the other respondents, although notice was duly served. As the appeal is heard ex-parte against them.
(2.) This appeal under Section 173 of the Motor Vehicles Act, 1988 is preferred against the judgment and award dated 05.11.2009, passed by the learned Member, Motor Accident Claims Tribunal, Kamrup (M), Guwahati in MAC Case No. 928/2005.
(3.) The Respondent No.1/ claimant is the wife of Late Sahbuddin Ahmed, the deceased victim of the motor vehicle accident. The claim case in brief is that on 21.04.2005, while the deceased was riding his motorcycle bearing registration No. AS-12/B-6693 along with his wife i.e. the claimant and his minor daughter, the offending motorcycle bearing registration No. AS-12/C-4255, which was coming from the other side in a rash and negligent manner, hit their motorcycle and consequently the victim sustained grievous injury and died. The appellant, who was arrayed as Opposite Party No. 3 in the claim petition, filed their written statement as well as additional written statement. Apart from usual stereo-type defence, the appellant took a plea that the deceased, who was the owner of the motorcycle bearing registration No. AS-12/B-6693, was riding his motorcycle along with his wife and minor daughter as pillion riders and, as such, the deceased was carrying excess persons in his motorcycle in violation of the carrying capacity of the motorcycle. It was stated that due to imbalance as well as rash and negligent driving, the deceased had hit one cyclist, namely, Gobin Karmakar and as a result, the deceased along with his wife and daughter fell on the road and sustained injuries. After hitting the cyclist in the accident, it is projected that the deceased had slipped away from his own motorcycle and thereafter, the offending motorcycle, which was coming on the road from opposite direction had hit only the motorcycle of the deceased and in the process, the offending vehicle did not cause any injury to the deceased and therefore, the appellant insurer was not liable for paying any compensation in respect of the death of the victim. The respondent No. 8, i.e. The Regional Manager, New India Assurance Co. Ltd., who was arrayed as Opposite Party No. 5 in the claim petition had also filed their written statement and denied the claim. On the basis of the pleading, the learned Tribunal framed the following issues for adjudication:
(1) Whether the victim (claimant's husband) Sahbuddin Ahmed died out of the accident which occurred on 21.04.2005 involving vehicle No. AS-12/B-6693(M/Cycle) and AS-12/C-4255 (M/Cycle)?
(2) Whether the aforesaid accident occurred due to rash and negligent riding by the rider (Opposite Party No.) of the vehicle No. AS-12/C-4255 (M/Cycle)?
(3) Whether any relief/compensation is available to the claimant for the death caused to her husband in the above vehicular accident involving vehicle No. AS-12/C-4255 (M/Cycle) and AS-12/B- 6693(M/Cycle) insured with M/s. National Ins. Co. Ltd. and M/s. New India Assurance Co. Ltd., respectively, if so, what amount and from whom? ;
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