National Insurance Company ... vs Musst Hazira Begum And 6 Ors
2022 Latest Caselaw 1193 Gua

                                                                Page No.# 1/4

GAHC010234082017




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                         Case No. : MACApp./152/2017

         NATIONAL INSURANCE COMPANY LIMITED
         A COMPANY REGISTERED AND INCORPORATED UNDER THE COMPANIES
         ACT, 1956 HAVING ITS REGISTERED OFFICE AT 3, MIDDLETON STREET,
         KOLKATA AND ONE OF ITS REGIONAL OFFICE AT G.S. ROAD,
         BHANGAGARH, GUWAHATI, REPRESENTED BY ITS REGIONAL
         MANAGER, GUWAHATIASSAM



         VERSUS

         MUSST HAZIRA BEGUM and 6 ORS
         W/O- LATE ALTAF @ ALTAB UDDIN

         2:MD. MAZIB AHMED


         3:MD. SHAMIN AHMED


         4:MISS SABINA BEGUM
          NOS. 2 TO 4 ARE THE SONS AND DAUGHTER OF LATE ALTAF @ ALTAB
         UDDIN
         ALL ARE THE R/O VILL. BAGER SANGAM
          P.O. KANAI BAZAR
          P.S. PATHERKANDI
          DIST. KARIMGANJ
         ASSAM.

         5:TINKU GHOSH

          S/O LATE NANDALAL GHOSH
          SALAPARA ROAD
          P.O. GUWAHATI-8
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             DIST. KAMRUP
             ASSAM.

            6:NIBASH CH. GHOSH

             S/O SRI NARESH CH. GHOSH
             R/O BRIDHYANAGAR
             P.S. RANI BAZAR
             DIST.WEST TRIPURA
             TIRPUR

Advocate for the Petitioner   : MS.S ROY

Advocate for the Respondent : MS.N MODI




                                      BEFORE
                     HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

                                            ORDER

Date : 04.04.2022.

Heard Mr. S. Roy, learned counsel for the applicant. Also heard Mr. S. Dutta, learned counsel for the respondent Nos. 1 to 4.

This is an appeal filed under Section 173 of the Motor Vehicles At, 1988, challenging the impugned judgment and award dated 21.10.2014 passed by the learned MACT, Cachar, Silchar in MAC case No. 1411/2012.

The MAC case No. 1411/2012 arose out of a motor accident which took place on 09.08.2012. In MAC appeal No. 226/2014 arising out of the same accident, this Court passed an order on 02.11.2021. The paragraph No.6 of the said order is quoted as under:-

"6. A conjoint reading of the paragraphs quoted here-in-above and taking into consideration the facts of the instant case, as admittedly the ill-fated vehicle was insured covering 38 passengers including the driver, the liability of the insurance company would only be confined to 38 occupants, notwithstanding the fact, that there Page No.# 3/4

were 55 occupants on board. The excess number of persons beyond 38 occupants would have to be treated as third parties, but since no premium has been paid to the insurance company, for that the insurance company would not be liable for payment of the compensation as far as they are concerned. However, as the liability of the insurance company to make payment even in respect to persons not covered by the insurance policy continues under the provisions of sub-section (1) of Section 149 of the Motor Vehicles Act, 1988, as it would be entitled to recover the same, if it could prove that one of the conditions has been breached by the owner of the vehicle. In the instant case, the record shows that the owner of the vehicle neither filed their written statement nor adduced any evidence. Ext. B and Ext. B(1) clearly shows that there were 55 occupants on board the ill fated vehicle. Under such circumstances, I hold that the insurance company would be liable to make payment for the entire 55 occupants, but in respect to the occupants beyond 38, the insurance company would be entitled to claim the said amount from the owner of the vehicle, as he had neither pleaded nor proved that he had not breached the terms of the agreement."

The learned counsels for both sides jointly submitted that the observation made by this Court in the aforesaid paragraph is applicable in the present case and in the light of the said observation, the present appeal may also disposed of.

After going through the materials available in the record, it is hereby directed that the observation made by this Court in paragraph 6 of the aforesaid judgment, shall also applicable in the present case.

The insurance company shall be liable to pay compensation to the 55 occupants, but in respect to the occupants beyond 38, the insurance company would be entitled to recover the said amount from the owner of the offending vehicle.

It has been submitted that 50% of awarded amount has already been deposited before the Registry of this Court by the insurance company. Therefore, the remaining 50% along with 6% interest as Page No.# 4/4

directed in the aforesaid judgment shall be deposited before the MACT, Cachar, Silchar within 6(six) weeks.

The statutory deposit shall be returned to the insurance company. With the above observation, the appeal stands disposed of.

JUDGE

Comparing Assistant