Shriram General Insurance Co.Ltd v. Porinita Gogoi and 5 Ors

PageoNo.#o1/7 GAHC010207972022 ooooooo ooooooooooooooo ooooooooooooooooTHEoGAUHATIoHIGHoCOURTo (HIGHoCOURToOFoASSAM,oNAGALAND,oMIZORAMoANDoARUNACHALoPRADESH)o CaseoNo.o:oMACApp./758/2022o SHRIRAMoGENERALoINSURANCEoCO.LTD.o 1000oE/8,oRIICOoINDUSTRIALoAREA,oSITAPURA,oJAIPUR,oRAJASTHAN-o 302022oANDoHAVINGoAoBRANCHoOFFICEoAToB.R.oARCADE,o3RDoFLOOR,o21o JANAPATH,oULUBARI,oGUWAHATI-o781007. VERSUSo PORINITAoGOGOIoANDo5oORSo.o W/OoLATEoSANJIBoGOGOI,o R/OoVILL.oNO.1oEKARANIoGAON,o P.O.-oDIGHALIA,o P.S.-oTENGAKHAT,o DIST.-oDIBRUGARH,oASSAM,oPIN-o786103. 2:DRISTIMONIoGOGOI o(MINOR)oREP.oBYoLEGALoGUARDIANoMOTHERoTHAToISoRESPONDENToNO.o o D/OoLATEoSANJIBoGOGOI o R/OoVILL.oNO.1oEKARANIoGAON o P.O.-oDIGHALIA o P.S.-oTENGAKHAT o DIST.-oDIBRUGARH oASSAM oPIN-o786103. 3:CHAENIKAoGOGOI o(MINOR)oREP.oBYoLEGALoGUARDIANoMOTHERoTHAToISoRESPONDENToNO.o PageoNo.#o2/7 o D/OoLATEoSANJIBoGOGOI o R/OoVILL.oNO.1oEKARANIoGAON o P.O.-oDIGHALIA o P.S.-oTENGAKHAT o DIST.-oDIBRUGARH oASSAM oPIN-o786103. 4:JAYAoGOGOI oW/OoLATEoNITYANANDAoGOGOI o R/OoVILL.oNO.1oEKARANIoGAON o P.O.-oDIGHALIA o P.S.-oTENGAKHAT o DIST.-oDIBRUGARH oASSAM oPIN-o786103. 5:LAKHESWARoGOGOI oS/OoNoGOGOI o VILL.-oEKARANI o P.O.-oDIGHALIA o P.S.-oTENGAKHAT o PIN-o786103 o DIST.-oDIBRUGARH oASSAM. 6:BIJUoGOGOI oS/OoCHANDRAoGOGOI o VILL.-oKATHALANIoGAON o P.O.oANDoP.S.-oTENGAKHAT o Page No.# 3/7 DIST.- DIBRUGARH ASSAM PIN-786101 Advocate for the Petitioner : MS. M SAIKIA Advocate for the Respondent : Linked Case : I.A.(Civil)/3197/2022 SHRIRAM GENERAL INSURANCE CO.LTD. 1000 E/8 RIICO INDUSTRIAL AREA SITAPURA JAIPUR RAJASTHAN-302022 AND HAVING A BRANCH OFFICE AT B.R. ARCADE 3RD FLOOR 21 JANAPATH ULUBARI GUWAHATI-781007. VERSUS PORINITA GOGOI AND 5 ORS . W/O LATE SANJIB GOGOI R/O VILL. NO.1 EKARANI GAON P.O.- DIGHALIA P.S.- TENGAKHAT DIST.- DIBRUGARH ASSAM PIN-786103. 2:DRISTIMONI GOGOI (MINOR) REP. BY LEGAL GUARDIAN MOTHER THAT IS RESPONDENT NO. 1

D/O LATE SANJIB GOGOI

R/O VILL. NO.1 EKARANI GAON

P.O.- DIGHALIA

P.S.- TENGAKHAT PageoNo.#o4/7 o DIST.-oDIBRUGARH oASSAM oPIN-o786103. o3:CHAENIKAoGOGOI (MINOR)oREP.oBYoLEGALoGUARDIANoMOTHERoTHAToISoRESPONDENToNO.o1 o D/OoLATEoSANJIBoGOGOI o R/OoVILL.oNO.1oEKARANIoGAON o P.O.-oDIGHALIA o P.S.-oTENGAKHAT o DIST.-oDIBRUGARH oASSAM oPIN-o786103. o4:JAYAoGOGOI W/OoLATEoNITYANANDAoGOGOI o R/OoVILL.oNO.1oEKARANIoGAON o P.O.-oDIGHALIA o P.S.-oTENGAKHAT o DIST.-oDIBRUGARH oASSAM oPIN-o786103. o5:LAKHESWARoGOGOI S/OoNoGOGOI o VILL.-oEKARANI o P.O.-oDIGHALIA o P.S.-oTENGAKHAT o PIN-o786103 o DIST.-oDIBRUGARH oASSAM. o6:BIJUoGOGOI S/OoCHANDRAoGOGOI o VILL.-oKATHALANIoGAON o Page No.# 5/7 P.O. AND P.S.- TENGAKHAT

DIST.- DIBRUGARH ASSAM PIN-786101. ------------ Advocate for : MR. R GOSWAMI Advocate for : appearing for PORINITA GOGOI AND 5 ORS .

BEFORE HON'BLE MR. JUSTICE DEVASHIS BARUAH

18.01.2023 Heard Mr. R. Goswami, the learned counsel for the appellant. This appeal is filed under Section 173 of the Motor Vehicles Act, 1988 challenging the judgment and award dated 18.07.2022 passed by the learned Member, MACT No.3, Kamrup in MAC Case No.1316/2017 filed under Section 166 of the Motor Vehicles Act, 1988, It appears from the perusal of the judgment impugned in the instant proceedings that the Tribunal below had allowed the claim petition on contest and an amount of Rs.16,20,347/- was awarded as the just and fair compensation to the claimants. By the said award, the appellant herein who was the insurer of the offending vehicle was directed to pay the compensation amount to the claimants within 30 (thirty) days along with interest at the rate of 7.5% per annum from the date of filing of the evidence on affidavit of claimant No.1, i.e. from 07.11.2019 till its realization. The instant appeal has been filed primarily on the ground that the learned court below did not appreciate the evidence in proper perspective Page No.# 6/7 in as much as Exhibit-B, pen drive was not taken into consideration. Mr. R. Goswami, the learned counsel for the appellant submits that if the Exhibit-B would have been taken into consideration, the decision rendered in the impugned award would have been different. I have heard the learned counsel for the appellant. On a specific query made to the learned counsel for the appellant as to whether the Exhibit-B, pen drive which was put under objection before the Tribunal below was supported by a certificate as was required under Section 65B

(4) of the Indian Evidence Act, 1872, Mr. R. Goswami, the learned counsel for the appellant with all fairness submitted that no certificate as required under Section 65B (4) of the Indian Evidence Act, 1872 was given in support of Exhibit-B. On a further specific query as to whether the Exhibit-B was a secondary evidence or the primary evidence, the learned counsel for the appellant has submitted that the Exhibit-B was a secondary evidence and not the primary evidence. Taking into account that the only case made out in the instant appeal by the appellant is on the ground of perversity for not taking into consideration the Exhibit-B and in view of the law laid down by the Supreme Court in the case of Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal and Others, reported in (2020) 7 SCC 1, this Court is of the opinion that the learned Tribunal below had rightly rejected the Exhibit-B on its admissibility sans the certificate under Section 65B (4) of the Indian Evidence Act, 1872. Under such circumstances as there is no other grounds in the instant appeal, the instant appeal stands dismissed. Page No.# 7/7 Mr. R. Goswami, the learned counsel for the appellant submits that as the appeal has been dismissed in limine, the appellant Insurance Company may be refunded the statutory deposit. In view of the said submission, this Court is also inclined to direct the Registry to refund the statutory deposit of Rs.25,000/- subject to the Insurance Company depositing the awarded amount before the Tribunal, (if not already deposited) within a period of 45 (forty five) days from today.

JUDGE Comparing Assistant