A.K.M. Hasanuzzaman Vs. Abdur Rab Chowdhury and others, 2010

 

Supreme Court

Appellate Division

(Civil)

Present:

Mohammad Fazlul Karim CJ

Md. Abdul Matin J

ABM Khairul Haque J

Md. Muzammel Hossain J

Surendra Kumar Sinha J

 A. K.M. Hasanuzzaman………….Petitioner

Vs.

Mr. Abdur Rab Chowdhury and others…….. Respondents

Judgment

February 14, 2010.

Lawyers Involved:

Mahbubey Alam, Senior Advocate, instructed by ASM Khaliquzzaman, Advocate-on-Record-For the Petitioner.

Abdur Rob Chowdhury, Senior Advocate, instructed by Md. Zahirul Islam, Advocate-on-Record-For Respondent No. 1.

Not Represented-Respondent Nos. 2-12.

Civil Petition for Leave to Appeal No. 1681 of 2009.

(From the Judgment and order dated 04.03.2009 passed by the High Court Division in First Miscellaneous Appeal No.33 of 2006)

 Judgment

ABM Khairul Haque J. – This is an application for leave to appeal.

2. The facts of the case leading to the fil­ing of this petition, in brief, are that on 03.10.2001 the private motor car of the respondent No.1 was hit by a bus owned by the petitioner, on Dhaka-Comilla high­way at about 8.30 in the morning. The driver of the motor car and one of the pas­sengers succumbed to their injuries subse­quently and all the other passengers were also seriously injured. Besides, the motor car was severely damaged.

3.The respondent No. 1, in due course, filed a claim case for Tk. 30,50,000/- being Claim Case No. 30 of 2002 before the Claims Tribunal and District Judge, Comilla, under the provisions of Section 128 of the Motor Vehicles Ordinance, 1983 (Ordinance No. LV of 1983), on the allega­tion, inter alia, that the accident occurred due to reckless driving of the driver of the bus, causing death and injury to the pas­sengers of the motor car and also in respect of the damage to the car.

4. The said claim case being renumbered as the Claim Miscellaneous Case No. 27 of 2003 was transferred to the Claims Tribunal and the Court of Special District Judge, Comilla. After taking evidence adduced on behalf of both the parties, the miscellaneous case was allowed in part by the Claims Tribunal and held the respondent Nos.1 and 2 vicariously liable for the negligence of the driver of the bus, as such, they were direct­ed to pay various amounts of compensation with interest at the rate of 12% per annum till realization of the entire amount.

5. On appeal before the High Court Division, being First Miscellaneous Appeal No.33 of 2006, the Court affirmed the findings of the Claims Tribunal and dismissed the appeal but reduced the rate of interest on the amount of compensation from 12% to 5%.

6. Mr. Mahbubey Alam, the learned Advocate, appearing on behalf of the peti­tioner, mainly submits that since the insur­ance company with which the bus was insured, was not impleaded in the claims case, the case ought to have been dis­missed. But it was pointed out that it is on evidence that the claimant asked for the name of the insurer from the owner of the bus but without any response, and that the name of the insurance company was not even mentioned in the written objection filed in the claims case. Mr. Alam further submits that the claims case, under Sections 130 and 131of the Motor Vehicles  Ordinance, 1983,  envisages an enquiry into the claims of the claimant after due notice to the insurer of the motor vehicle and that having not been done, the judgment and order passed by the Claims Tribunal was without any lawful authority.

7. It is true that the claims of compensa­tion, under the provisions of Sections 128, 130 and 131 of the Motor Vehicles Ordinance, 1983, envisage an enquiry into the claims of compensation with notice to the insurer of the concerned motor vehi­cle. But in the instant case, no particulars of insurance company of the bus was given in the written objection, as such, the question of issuing a notice to them did not arise. So far the question of enquiry is concerned; the Claims Tribunal examined the witnesses and considered other evidence on record before assessing the quantum of compensation. As such, this requirement was also adequately addressed to by the High Court Division in the first miscellaneous appeal.

Under such circumstances, this petition does not merit consideration.

Accordingly, the petition is dismissed.

Ed.

Source : VII ADC (2010) 437

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