Gauhati High Court

Page No.# 1/12 vs Kabita Deka And 2 Ors on 11 February, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                  Page No.# 1/12

GAHC010162122021




                                                            2025:GAU-AS:1369

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

                       Case No. : MACApp./342/2021

         UNITED INDIA INSURANCE CO. LTD.
         HAVING ITS REGISTERED OFFICE AT 24, WHITES ROAD, CHENNAI-600014
         AND REGIONAL OFFICE AT GUWAHATI-5, REPRESENTED BY THE
         REGIONAL MANAGER



         VERSUS

         KABITA DEKA AND 2 ORS.
         W/O LATE DHARMESWAR DEKA, VILL-OJAGAON, P.O.-CHENGAPATHAR,
         MOUZA-KALAIGAON, P.S.-KALAIGAON, DIST- UDALGURI, BTAD (ASSAM),
         PIN-784525, P/R/A C/O SRI DEBEN KALITA, S/O LT. PAYALU KALITA, R/O
         VILL-KHARKHOWAPARA, P.O.-DEOMORNOI, P.S.-MANGALDAI, MOUZA-
         SARABARI, DIST- DARRANG (ASSAM), PIN-784147

         2:M/S B.L AGARWALLA
          R/O GAR ALI
          JORHAT P.S.-JORHAT
          DIST-JORHAT
          PIN-785001

         3:DHONIRAM ENGTI
          S/O SRI LONKI ENGTI
         VILL-SILGURI P.S.-BOKAKHAT
          DIST-GOLAGHAT
          PIN-78561
Advocate for the Appellant     : Ms. M. Choudhury, Advocate

Advocate for the Respondents : Mr. S. Dutta, Sr. Advocate
                               Ms. K. Borah, Advocate
                               Mr. G. Jalan, Advocate
                                                        Page No.# 2/12




                           BEFORE
     HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                    Date of Hearing    : 11.02.2025

                    Date of Judgment    : 11.02.2025
                 JUDGMENT AND ORDER (ORAL)

Heard Ms. M. Choudhury, the learned counsel appearing on behalf of the appellant and Mr. S. Dutta, the learned senior counsel assisted by Ms. K. Borah, the learned counsel appearing on behalf of the respondent No.1 as well as Mr. G. Jalan, the learned counsel appearing on behalf of the respondent No.2.

2. The appellant Insurance Company being aggrieved by the judgment and award dated 02.03.2021 passed in MAC Case No. (D)275/2013 by Court of the Additional District Judge (FTC)- cum- Member, MACT, Darrang, Mangaldai has approached this Court by filing the instant Appeal.

3. Ms. M. Choudhury, the learned counsel appearing on behalf of the appellant submitted that the instant Appeal is directed primarily on the non-consideration of the materials on record while adjudicating the Issue No.II by the learned Tribunal below. The learned counsel for the appellant submitted that during the proceedings there were various orders being passed by the Page No.# 3/12

learned Tribunal for the appearance of the District Transport Office (DTO), Tuensung, Nagaland in respect to the veracity of the driving license of the driver of the offending vehicle. The DTO concerned did not appear, however, submitted documents to the effect that the driving license of the driver of the offending vehicle was a fake driving license. The learned counsel for the appellant therefore submitted that the learned Tribunal ought to have taken into consideration the said aspect of the matter, rather, the learned Tribunal went into an aspect while adjudicating the Issue No.II which was never the case of the appellant Insurance Company. The learned counsel for the appellant therefore submitted that appellant Insurance Company is not adverse to making payment of the amount subject to appropriate observation that the Appellant Insurance Company can recover the same from the respondent No.2.

4. Mr. G. Jalan, the learned counsel appearing on behalf of the respondent No.2 submitted that the Appellant Insurance Company did not adduce any evidence. Under such circumstances, it does not lie in the mouth of the Appellant Insurance Company to make a submission to the effect as regards the Issue No.II.

5. Mr. S. Dutta, the learned senior counsel appearing on behalf of the respondent No.1 submitted that on account of a tussle Page No.# 4/12

between the appellant Insurance Company and the owner of the offending vehicle, the claimant is suffering taking into account that the accident occurred on 10.11.2012 and there was a valid insurance policy as would be seen from the impugned judgment and award during the period when the accident occurred. The learned senior counsel for the respondent No.1 therefore submitted that the claimant should not be put to further distress on account of the dispute between the appellate Insurance Company and the owner of the offending vehicle.

6. Taking into account the limited point on which this Court is required to adjudicate the instant Appeal, the facts which led to the filing of the instant Appeal is narrated infra.

7. The respondent No.1 who is the claimant herein was the wife of one Dharmeswar Deka (since deceased). Late Dharmeswar Deka who was a constable of Assam Police (ABC No.134) and at that relevant point of time, he was serving as a PSO of one Mr. Rajib Loson Pegu, Minister of Flood Control, Assam. The husband of the claimant on 10.11.2012 was proceeding along with Sri Rajib Loson Pegu as PSO in the pilot car bearing registration AS-30-3738 which was coming from Dibrugarh to Guwahati and nearby Rangamati Tiniali on NH37, the offending vehicle bearing registration AS-03/C-6372 which was coming from Dibrugarh towards Guwahati in a rash and Page No.# 5/12

negligent manner crossed over the said Government pilot vehicle and thereafter suddenly stopped in the midst of the road as a result of which the vehicle bearing registration No.AS-30-3738 was knocked down and was damaged. The husband of the claimant suffered grievous injury for which he was immediately shifted to Jorhat Medical College and Hospital. Taking into account that further treatment was required, the husband of the claimant was then brought to Sanjevani Hospital, Dibrugarh on 11.11.2012. But, unfortunately he succumbed to his injury on 31.12.2012. On the basis of the above facts, the claim petition was filed claiming an amount of Rs.80,00,000/-.

8. Upon the filing of the said claim petition which was registered and numbered as MAC Case No.(D)275/2013, notices were issued to the Insurance Company as well as the owner of the offending vehicle. The owner of the offending vehicle submitted his written statement and stated therein that the vehicle in question had a valid insurance with the appellant Insurance Company under policy bearing No.130400/31/11/02/00009321 valid from 17.02.2012 to 16.02.2013. It was further mentioned that the offending vehicle bearing the registration No.AS-03/C-6372 was driven by the driver who had a valid license renewed up to 22.04.2013 being license No.23729/T/TV/10 issued by the District Transport Office, Page No.# 6/12

Tuensang, Nagaland. It was further stated that there was no rash and negligent driving.

9. The Appellant Insurance Company also filed the written statement taking various grounds of objection. It was mentioned that the husband of the claimant did not expire in any Road Traffic Accident and the vehicle bearing registration No.AS-03/- 6372 was not involved in the alleged accident. It was further mentioned that the claim so made was excessive and imaginary, that too without any supporting documents. On the basis of the above pleasings, four issues were framed which being relevant are reproduced herein under:-

(a) Whether the deceased died in a Road Traffic Accident due to rash and negligent driving of the involving vehicle No.AS-03/C-6372 (Tipper)?

(b) Whether the offending vehicle was duly covered under the policy of Insurance at the relevant time of accident?

(c) Whether the claimant is entitled to compensation, as prayed for?

(d) To what relief/relieves, if any, the parties are entitled to?

10. It is relevant to take note of that on behalf of the claimant, evidence of three witnesses were adduced and the claimant further exhibited some documents. The appellant Insurance Page No.# 7/12

Company though cross-examined the witnesses of the claimant but did not adduce any evidence.

11. This Court further takes note of the records of the MAC proceedings, and more particularly, the orders dated 08.11.2019; 20.12.2019; 18.02.2020 and 19.02.2020. These orders would go to show that the appellant Insurance Company filed application for issuance of summons to the DTO, Tuensang, Nagaland to prove the veracity of the driving license number No.23729/T/TV/10. It is further pertinent to mention that on 17.02.2020, a communication was sent by the DTO, Tuensang, Nagaland along with certain relevant documents to the Sheristadar of the learned Tribunal. This aspect of the matter is apparent from the records as well as the order dated 19.02.2020 of the learned Tribunal. The documents which were submitted before the learned Tribunal were:

(a) A communication issued on 17.02.20220 by the DTO, Tuensang, Nagaland;

(b) An affidavit executed by the DTO, Tuensang, Nagaland declaring that the driving license No.23729/T/TV/10 was not issued by the Office of the District Transport Officer, Tuensang, Nagaland and that the Office had no records of the said driving license. It was further mentioned that the Page No.# 8/12

driving license can be treated as fake/false/bogus. These documents were made part of the records of MAC Case No. (D)275/2013.

12. Be that as it may, after 19.02.2020 on account of the COVID-19 pandemic, there was certain disruption in the said proceedings and it was only on 30.01.2021, the arguments were heard. On 02.03.2021, the impugned judgment and award was passed. It is under such circumstances, the instant Appeal has been filed on the limited question as mentioned herein above.

13. This Court, having taken note of the submissions made by the learned counsels for the Parties, is of the opinion that as the Appeal is argued on a limited point which does not touch on the adjudication of the Issue Nos.I, III & IV, this Court would restrict the present adjudication on the Issue No.II.

14. The Issue No.II pertains to whether the offending vehicle was duly covered under the policy of insurance at the relevant time of the accident? It is seen that the learned Tribunal had only made observations as regards whether the offending vehicle in question had a valid insurance, but did not take into consideration as to whether the appellant Insurance Company would have been liable if the driving license in question was a fake/bogus license, more so, taking into account the orders Page No.# 9/12

dated 08.11.2019; 20.12.2019; 08.02.2020 and 19.02.2020, coupled with the communication dated 17.02.2020 and the affidavit filed by the DTO, Kuensang, Nagaland dated 31.10.2009. It is very pertinent to mention that the liability of the Insurance Company to indemnify the insured is only when the terms and conditions of the insurance policy is adhered to. If the vehicle in question was driven by a person who did not have a license or had a fake or a bogus license, the Insurance Company cannot be saddled with the liability. Additionally, it is also well settled that the liability cannot be saddled upon the Insurane Company when the accident occurred to a vehicle driven by a driver who had no/fake/fraudulent license and the accident was not on account of a mechanical error.

15. The aforesaid principles were not taken into consideration by the learned Tribunal while deciding the Issue No.II and further saddling liability on the Appellant Insurance Company. For deciding the above aspect, it would be in the interest of justice that both the Appellant Insurance Company as well as the Respondent No.2 should be given due opportunity to lead evidence.

16. In the backdrop of the above, this Court also finds it apt to observe that the Motor Vehicles Act, 1988 deals with adjudication pertaining to claims on account of accidents caused by the motor Page No.# 10/12

vehicles. The Legislature had chosen a separate forum for the claimants for the purpose of a speedy disposal of the claims. This Court further taking note of that the Issue Nos.I, III and IV does not call for any interference save and except saddling the liability entirely on the Appellant Insurance Company and further taking into account that there was a valid insurance policy at the time when the accident occurred, it is of opinion of this Court that the appellant Insurance Company is required to make payment of the compensation as awarded by the learned Tribunal vide the judgment and award dated 02.03.2021 to the Claimant/Respondent No.1 herein. The reason behind the decision is that delay in making payment to the Claimant/Respondent No.1 herein would not duly cause further distress to the claimant but would also result in accruing further interest which would not be in the interest of the Appellant Insurance Company or the owner who may ultimately be liable.

17. This Court interferes with the decision in Issue No.II and grants liberty to both the Appellant Insurance Company and the Respondent No.2 to agitate the issue before the learned Tribunal.

18. Accordingly, the instant Appeal stands disposed of with the following observations and directions:-

(i) It was submitted by Ms. M. Choudhury, the learned Page No.# 11/12

counsel for the appellant that the appellant Insurance Company had already deposited 80% of the amount before the Registry of this Court and the claimant had received the said amount. The remaining amount of 20% be deposited before the learned Tribunal below within 6 (six) weeks from today along with the interest at the rate of 8% as mentioned in paragraph No.38 of the judgment and award dated 02.03.2021.

(ii) This Court interferes with the observations made in the impugned judgment and award dated 02.03.2021 in so far as the Issue No.II and further directs the learned Tribunal, i.e. the Additional District Judge (FTC)-cum- Member, MACT, Darrang, Mangaldai to initiate a proceedings on an application being filed by the Appellant Insurance Company as to whether the Appellant would be liable to the payment of the awarded compensation or the Appellant Insurance Company can recover the said amount from the respondent No.2 herein who is the owner of the offending vehicle in question and for further consequential steps.

(iii) The statutory deposit of Rs.25,000/- be refunded by the Registry to the Appellant Insurance Company upon deposit of the remaining amount as directed herein above and producing the order from the learned Tribunal as regards Page No.# 12/12

the said deposit before the Registry of this Court.