Crl.Pet./172/2020
2023 Latest Caselaw 2140 Gua

                                                                          Page No.# 1/9

GAHC010106802018




                     THE GAUHATI HIGH COURT AT GUWAHATI
         (The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)

                         PRINCIPAL SEAT AT GUWAHATI


                             MAC Appeal No. 557/2018




     NEW INDIA ASSURANCE COMPANY LIMITED

     HAVING ITS REGISTERED OFFICE AT NEW INDIA ASSURANCE BUILDING 87,
     MAHATMA GANDHI ROAD ,MUMBAI AND ONE OF THE REGIONAL OFFICE AT G.S .
     ROAD BHANGAGARH, GUWAHATI -781005

                                                      ...........APPELLANT.



          -VERSUS-



     SRI TARAK RAO

     S/O LATE MALLESWAR RAO ,

     S.B.I. BUILDING ,RESIDENT OF ADABARI ,PANDU PORT ROAD P.S. AND P.O.
     JALUKBARI ,DIST. KAMRUP, ASSAM -781012.

                                                .......RESPONDENT/CLAIMANT

Page No.# 2/9

2:MRS RATNA GOSWAMI

W/O DR. NANI GOPAL GOSWAMI ,

RESIDENT OF MIBUN X RAY CLINIC BARIPARA P.S. AND P.O. JALUKBARI,DIST. KAMRUP ASSAM 781012.

(OWNER OF THE VEHICLE BEARING NO. AS01-AD/9145, ESTEEM VXI)

3:SRI NANI GOPAL GOSWAMI

S/O D GOSWAMI

RESIDENT OF MIBUN X RAY CLINIC BARIPARA

P.S.AND P.O. JALUKBARI

DIST. KAMRUP

ASSAM 781012

(DRIVER OF THE VEHICLE BEARING NO. AS01-AD/9145, ESTEEM VXI)

............Respondents.

Advocates for the appellant    :     Mr K K Bhatta.


Advocate for the respondents   :     Mr K R Patgiri (R1)
                                     Mr J Payeng (R-2,3)




                                   BEFORE
                  HON'BLE MRS. JUSTICE MALASRI NANDI


Date of Hearing                :     30.03.2023


Date of Judgment               :     24.05.2023
                                                                                Page No.# 3/9

                            JUDGEMENT AND ORDER (CAV)

Heard Mr K K Bhatta, learned counsel appearing for the appellant/Insurance Company

and Mr K R Patgiri, learned counsel appearing on behalf of the respondent Nos. 1/claimant.

Also heard Mr J Payeng, learned counsel appearing on behalf of the respondent Nos. 2 and 3.

2. The Insurance Company has filed this appeal challenging the Judgment and Order dated

03.02.2018, passed by the learned Member, MACT No. 1, Kamrup, Guwahati, in MAC Case

No. 1066/2011, awarding compensation amounting to Rs. 1,94,000/- (Rupees One Lakh

Ninety Four Thousand) Only, in favour of the respondent No. 1/claimant.

3. The case of the claimant is that on 10.12.2010, at about 07:15 pm, while the claimant

was travelling in a motor vehicle bearing Registration No. AS-01/AD-9145, which was

proceeding from New Bongaigaon towards Guwahati and when reached near Dudhnoi,

Goalpara, it dashed against a standing vehicle, as a result of which, he sustained grievous

injuries on his person. The accident occurred due to rash and negligent driving of the said

vehicle, bearing Registration No. AS-01/AD-9145.

4. The Insurance Company in this case has challenged the factum of accident. According

to the learned counsel for the appellant, no such accident took place on 10.02.2010, as

alleged. It is submitted that the learned Member, MACT, has committed wrong for not taking

into account of evidence adduced by the appellant as DW-1, who categorically stated that the

accident in question was false and fabricated one and no such accident took place with the

aforesaid vehicle bearing Registration No. AS-01/AD-9145 (Esteem VXI), on the aforesaid

date and as such, the learned Tribunal was not justified in awarding compensation in favour

of the claimant/respondent No. 1.

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5. It is also submitted by the learned counsel for the appellant/Insurance Company that

DW-1, the witness of the appellant exhibited one document, vide Exhibit-D (which is an

information furnished under RTI Act, by the SP, Goalpara), in respect of Dudhnoi PS Case No.

298 of 2010 and from the report, it reveals that no such record has been available in the

Police Station in the General Diary dated 10.12.2010, as reported by the OC, Dudhnoi Police

Station.

6. Learned counsel for the appellant/Insurance Company also submitted that the vehicle

bearing Registration No. AS-01/AD-9145 (Esteem VXI) was not involved in the accident

causing injuries to the claimant/respondent No. 1, Tarak Rao, as such, the Investigating

Officer had not registered any Police Case against the driver of the said vehicle and hence,

fastening of liability upon the Insurance Company, ignoring the defence taken by the

appellant/Insurance Company is bad in law and the award of compensation allowed by the

learned Tribunal is liable to be set aside.

7. Learned counsel for the appellant has also pointed out that there was no reliable

evidence to show that the claimant had in fact, sustained injuries in the alleged accident or

that he was an occupant of the said private car bearing Registration No. AS-01/AD-9145

(Esteem VXI) and sustained injuries in the said accident, which occurred on 10.12.2021 and

in absence of any evidence along with the documents, the Judgment and Award passed by

the learned Tribunal cannot be sustainable in law.

8. It is also submitted by the learned counsel for the appellant that from the evidence on

record, it appears that the husband of the owner of the vehicle drove the vehicle at the

relevant time of accident, who did not have a valid and effective driving licence. Hence, the Page No.# 5/9

owner, i.e. the insured was guilty for allowing her husband to drive her vehicle without having

a driving licence and in that view of the matter also, the Award requires modification.

9. In support of his submission, the learned counsel for the appellant has relied upon the

following decisions:-

1) 2013 ACJ 1944; (S.Iyyapan vs- United India Insurance Co. Ltd. & Another.

2) 2018 ACJ 690; (Pappu & Ors. Vs. Vinod Kumar Lamba & Anr.)

10. On the other hand, learned counsel for the respondent No. 1/claimant, Mr K R Patgiri,

has vehemently opposed to the submission of the learned counsel for the appellant. He

submits that the accident occurred on 10.12.2010 and due to the alleged accident, the

claimant sustained injuries on his person. The claimant has submitted the accident

information report before the learned Tribunal, which was issued by OC, Dudhnoi Police

Station, vide Exhibit-1 and from Exhibit-1, it reveals that the accident occurred on 10.12.2010

and in the said accident, Tarak Rao had sustained injuries and the vehicle bearing No.

Registration No. AS-01/AD-9145 was shown to be the offending vehicle. There is no fraud

made by the claimant by filing a petition before the Tribunal claiming compensation,

regarding his injuries due to the alleged accident. Learned Tribunal has rightly delivered the

Judgment awarding compensation as aforesaid, in favour of the claimant No. 1/ respondent.

11. Learned counsel for the claimant/respondent No. 1 has relied upon the following

decision:-

(2019) 7 SCC 217 (Parminder Singh vs- New India Insurance Co. Ltd)

12. In this case, the claimant was examined as PW-1, who deposed in his evidence that on

10.12.2010, he was travelling in a vehicle bearing Registration No. AS-01/AD-9145 (Esteem Page No.# 6/9

VXI) from New Bongaigaon towards Guwahati. The vehicle was driven by the driver in a rash

and negligent manner and when the vehicle reached Dudhnoi, near Goalpara, at about 07:15

pm, it dashed against a standing vehicle. The driver could not see the parked vehicle as it

was dark at that time. The claimant also could not see the registration number of the parked

vehicle due to his serious injuries. He (PW-1) sustained injuries on his face and head. After

the accident, he was brought to the GNRC Hospital, Dispur, Guwahati, on the same day. He

was treated in the said hospital as an indoor patient. Operation was done on 13.12.2010. He

was discharged from GNRC on 16.12.2010. Thereafter, he went to Miot Hospital, Chennai, for

better treatment and admitted there on 21.01.2011 and undergone plastic surgery in that

hospital. He was discharged from Miot Hospital on 25.01.2011, with advice to revisit the

hospital after 1 month. PW-1 alleged that the accident had occurred due to rash and

negligent driving of the offending vehicle bearing Registration No. AS-01/AD-9145 (Esteem

VXI) and a Police case has been registered vide Dudhnoi PS Case No. 298/2010, under

Sections 279/338/427 IPC.

13. In his cross-examination, PW-1 replied that the driver with whom he was travelling in

the vehicle bearing Registration No. AS-01/AD-9145 (Esteem VXI) was his friend. The vehicle

was a private vehicle. The vehicle in which he was travelling had dashed against a stationery

vehicle. He could not say the number of the said vehicle. No parking light was on. He

sustained injury on his face. An FIR was lodged.

14. One witness was examined from the appellant's side, as DW-1. DW-1, Jayanta

Mahanta, was appointed by the appellant Insurance Company to investigate the alleged MAC

case. He deposed in his evidence that on 23.02.2016, he wrote a letter under the RTI Act,

2005 to the SP, Goalpara seeking the extract copies of all the GD Entries in connection with Page No.# 7/9

Dudhnoi PS Case No. 298/2010. It is reported that no record has been found at Dudhnoi

Police Station in General Diary dated 10.12.2010.

15. In his cross-examination, DW-1 replied that the issuing signatory of Exhibit - D is not

present to prove the same. He has not visited Dudhnoi PS for investigating Dudhnoi PS Case

No. 298 of 2010.

16. I have perused the record of MAC Case and the documents available in record.

17. It is seen that except Exhibit- 1, i.e., the accident information report, no any document

has been submitted by the claimant to prove the accident. It appears from the evidence on

record that the claimant was travelling along with the driver who was his friend, but he was

not examined in the case to prove the accident. Though the claimant stated in his deposition

that he lodged the FIR, but the copy of the FIR is not available in the record and which was

also not exhibited before the Tribunal. According to DW-1, he received a letter from SP,

Goalpara who is also the Public Information Officer, as per the RTI reply, as sought for by him

regarding Dudhnoi PS Case No. 298 of 2010. As per letter of SP, Goalpara, vide Exhibit - D,

no record has been found in the Dudhnoi police station in General Diary dated 10.12.2010 as

reported by the OC, Dudhnoi PS. As the copy of the FIR is not available in the record, it

cannot be ascertained, whether any case was registered on the basis of the FIR, lodged by

the claimant, in connection with the accident. The claimant only mentioned in the copy of

claim petition that the accident occurred in connection with Dudhnoi PS Case No. 298 of

2010, under Sections 279/338/427 IPC. In accident information report, vide Exhibit- 1 only

PS case is mentioned as Dudhnoi PS Case No. 298 of 2010. As it appears from the evidence

of DW-1 that no any GD Entry was recorded on 10.12.2010 at Dudhnoi PS, the claimant is Page No.# 8/9

duty bound to prove its case by exhibiting document that an accident occurred by involving a

vehicle, bearing No. AS-01-AD-9145 (Esteem VXI). As the claimant has not exhibited the FIR

before the Tribunal, it is a million dollar question whether an accident took place on the

alleged date of accident i.e., 10.12.2010, involving the vehicle bearing Registration No. AS-

01/AD-9145 (Esteem VXI). It was not explained by the claimant how the case was registered

without filing of FIR or recording of GD Entry in connection with the accident which occurred

on 10.12.2010. The Police Officer, who investigated the accident case was also not examined

to prove the fact that one such accident took place on 10.12.2010, by involving the vehicle

bearing Registration No. AS-01/AD-9145 (Esteem VXI), in which the claimant sustained

injuries on his person. The Police Officer, i.e., OC, Dudhnoi Police Station who issued accident

information report was also not examined to prove the factum of accident.

18. No doubt lodging of FIR is not a pre-requisite for claiming compensation, but the facts

of each case have to be examined to find out whether there is any truth. The statement of

the claimant cannot be accepted on the face of it and there had to be some material to

support the statement

19. In view of the above discussions, I am of the opinion that the claimant has not come

with clean hands. In the result, the appeal is allowed. The Judgment and Order dated

03.02.2018, passed by the learned Member, MACT No. 1, Kamrup, Guwahati, in MAC Case

No. 1066 of 2011, is set aside. The Insurance Company is at liberty to recover the amount of

compensation, if paid earlier before the Tribunal, by following the existing process of

recovery, as per the provisions of law.

20. Statutory amount in deposit, if any, be refunded to the appellant/Insurance Company.

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21. With the aforesaid directions, this appeal stands disposed of.

22. Send down the LCR.

JUDGE

Comparing Assistant