Gauhati High Court
Page No.# 1/5 vs Syed Jakir Dewan And Anr on 26 August, 2025
Page No.# 1/5
GAHC010004372017
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp./276/2018
MRS MINA DAS and 2 ORS
W/O LATE UTTAM KR. DAS
2: SHRI UDIPTA DAS
S/O LATE UTTAM KR . DAS
3: SHRI AJAY KR. DAS (MINOR )
S/O LATE UTTAM KR .DAS
THE CLAIMANT NO.1 BEING THE MOTHER AND NATURAL GUARDIAN OF
CLAIMANT NO.2 AND 3 ARE REPRESENTED BY HER AND THEY ARE THE
RESIDENTS OF BORKACHULA
P.O. AND P.S.- GORESWAR (RANGIA)
DIST KAMRUP (R) ASSAM
PIN -781366
VERSUS
SYED JAKIR DEWAN and ANR
S/O . LATE KHORAN ALI
R/O VILL BAIHATA CHARIALI
P.S. KAMALPUR , DIST. KAMRUP (R) ASSAM
PIN. 781381.(OWNER AND DRIVER OF VEHICLE NO. AS -01- G/ 5808 LML
VESPA )
2:UNITED INDIA INSURANCE COMPANY LIMITED .REGIONAL OFFICE
GUWAHATI 05
REPRESENTED BY THE REGIONAL MANAGER (INSURER OF THE
VEHICLE )
Advocate for the Petitioner : MR. B CHETRI, MR. K K PARASAR
Advocate for the Respondent : MR. A J SAIKIA (R2), MR. B KASHYAP (R2),MR. B KAKATI
(R2),MR. U DAS (R1),MR. N UPADHAYAY
Page No.# 2/5
Linked Case : I.A.(Civil)/2282/2020
MINA DAS AND 2 ORS.
W/O. LATE UTTAM KUMAR DAS
2: UDIPTA DAS
S/O. LATE UTTAM KUMAR DAS
3: AJAY KUMAR DAS (MINOR )
S/O. LATE UTTAM KUMAR DAS
APPLICANT NO.1 BEING AUTHORISED REPRESENTING APPLICANT NO.2
AND 3
ALL ARE R/O. BORKACHULA
P.O. AND P.S.- GORESWAR (RANGIA)
DIST KAMRUP (R) ASSAM
PIN -781366 .
VERSUS
SYED JAKIR DEWAN AND ANR.
S/O. LATE KHORAN ALI
R/O. VILL. BAIHATA CHARIALI
P.S. KAMALPUR
DIST. KAMRUP (R) ASSAM PIN. 781381.(OWNER AND DRIVER OF VEHICLE
NO. AS -01- G/ 5808 LML VESPA)
2:UNITED INDIA INSURANCE COMPANY LIMITED
REGIONAL OFFICE
GUWAHATI 05
REP. BY THE REGIONAL MANAGER (INSURER OF THE VEHICLE AS-01-
G/5808 LML VESPA)
------------
Advocate for : MR. B CHETRI
Advocate for : MR. A J SAIKIA appearing for SYED JAKIR DEWAN AND ANR.
Page No.# 3/5
BEFORE
HONOURABLE MR. JUSTICE BUDI HABUNG
ORDER
26.08.2025
Heard Mr. B. Chetri, learned counsel for the appellants/applicants. Also
heard Mr. A. J. Saikia, learned counsel for the respondent No.2/Insurance
Company.
2. The present appeal has been preferred under Section 173 of the Motor
Vehicles Act, 1988, read with Article 227 of the Constitution of India, challenging
the impugned judgment dated 16.08.2017 passed by the learned Motor
Accident Claims Tribunal No.1, Kamrup, Guwahati, in MAC Case No. 861/06
(187/07), whereby the claim petition filed by the appellants/applicants was
dismissed.
3. The case of the appellants/applicants/claimants before the learned Tribunal
was that on 24.12.2005, the deceased was driving as a pillion rider in vehicle
No. AS-01-G-5808 (LML Vespa), traveling from Goreswar town to Barkashula.
When the scooter reached a bamboo bridge, the owner-cum-driver of the
vehicle, i.e., respondent No.1, lost control due to the broken condition of the
bridge, and the vehicle went off the road. As a result, the deceased sustained
grievous injuries and died on the spot. In this regard, an FIR was duly
registered.
4. However, the learned Tribunal dismissed the claims of the appellants,
holding that the deceased himself was driving the vehicle and, as such, was not
a third party. Therefore, no claim could be maintained under Section 166 of the
M.V. Act.
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5. The grievance of the appellants in this appeal is that the finding of the
learned Tribunal is perverse inasmuch as respondent No.1, who is the owner of
the scooter, had specifically admitted in his written statement filed before the
learned Tribunal that he was driving the vehicle in the evening of the incident. It
is further contended that the deceased did not know how to drive and did not
possess a driving licence. This aspect, however, was ignored by the learned
Tribunal.
6. A further contention of the appellants/applicants is that the Investigating
Officer, who submitted the final report stating that the deceased was riding the
scooter, was never examined to prove the correctness of the contents made
therein. Even the defence witnesses, including the Officer-in-Charge who
appeared to prove the final report, admitted that they had not witnessed the
accident. Despite these facts, the learned Tribunal wrongly concluded that the
deceased was driving the scooter at the time of the accident.
7. The appellants/applicants therefore filed the interlocutory application being
I.A. (C) No. 2282/2020 under Order 41 Rule 27 of the Code of Civil Procedure in
connection with instant appeal (MAC Appeal Case No. 276/2018), with a limited
prayer to permit them to examine respondent No.1 (owner-cum-driver of the
scooter) as well as the Investigating Officer, with a liberty to cross-examine
them, and for remanding the case to the learned Tribunal for a fresh decision.
8. The learned counsel for respondent No.2/Insurance Company raised
objections to such prayer. However, considering the fact that the owner of the
vehicle had himself admitted in his written statement that he was driving the
scooter at the time of the accident; that the IO had not been examined to prove
the final report; and that the learned Tribunal recorded findings without proper
evidence on this vital aspect, this Court is of the opinion that the
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appellants/applicants deserve an opportunity to adduce such evidence in the
interest of justice.
9. In view of the above, the impugned judgment dated 16.08.2017 passed by
the learned Motor Accident Claims Tribunal No.1, Kamrup, Guwahati, in MAC
Case No. 861/06 (187/07) is hereby set aside. The matter is remanded back to
the learned Tribunal for retrial from the stage of evidence of respondent No.1
(owner-cum-driver) and the Investigating Officer.
10. The Tribunal shall permit the examination and cross-examination of the
said witnesses by both sides and thereafter, decide the case afresh on merits in
accordance with law.
11. The parties are directed to appear before the learned Tribunal on
26.09.2025 without further notice. The learned Tribunal shall make an
endeavor to dispose of the case as early as possible, preferably within 6 (six)
months from the date of appearance of the parties.
12. The appeal, being MAC Appeal Case No. 276/2018, as well as the
interlocutory application, being I.A. (C) Case No. 2282/2020, accordingly stand
disposed of.
13. Send back the record immediately.
JUDGE
Comparing Assistant
