Gauhati High Court
MACApp./233/2020 on 25 February, 2025
Page 1 of 17
GAHC010124662020
2025:GAU-AS:2086
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
MAC APPNo. 233/2020
1. The United India Insurance Company
Limited Having its registered Office at
24 Whites Road, Chennai-600014 and
Regional Office at Chibber House, G.S.
Road, Guwahati-5, represented by its
Regional Manager, Regional Office,
Guwahati. (Insurer of the Vehicle No.
AS-01-BF-5374(Motor Cycle).
.....Appellant
Versus-
1. Sarwar Khan @Abdul Sarwar Khan,
S/o-Jalil Khan,Resident of Village-Batorhat,
P.S.Palashbari,District- Kamrup, Assam.
2. Nazma Begum,
W/o- Sarwar Khan @Abdul Sarwar Khan,
Resident of Village-Batorhat, P.S. Palashbari,
District- Kamrup, Assam.
3. Md. Islam Ali,
S/o- Late Hafij Ali,
Village-DeharKala Kuchi,
P.S. Mukalmua, District-Nalbari, Assam,
MACApp. No. 233 of 2020
WITH
MACApp. No. 45 of 2021 Page1
Page 2 of 17
Pin-781335(Driver of Vehicle No. AS-01-BF-
5374(Motor Cycle).
.....Respondents
For Appellant 1. Mr. M. Dutta, Advocate.
For Respondent(s) 1. Mr. K.K. Dutta, Advocate.
WITH
1. Sarwar Khan @Abdul Sarwar Khan,
S/o-Jalil Khan, Injured Person.
2. Nazma Begum,
Aged About 62 Years,
W/o- Sarwar Khan @Abdul Sarwar Khan,
Resident of Village-Batorhat, P.S. Palashbari,
District- Kamrup, Assam,
Injured Person is being represented by his wife.
Versus-
1. M/s United India Insurance Company Limited,
Having its regional Office at Christian Basti,
G.S. Road, Guwahati, Assam, Pin-781032(Insurer
of Vehicle No. As-01/BF-5374).
2. Md. Jakir Hussain,
S/o- Md. Mahim Ali,
Resident of C/o-Bibekananda Sarma,
Lachit Nagar,P.S. Bhangagarh,Guwahati,
District- Kamrup(M),Assam. Pin-781007. (Owner
of Vehicle No. AS-01-BF-5374.
3. Md. Islam Ali,
S/o- Late Hafij Ali,
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MACApp. No. 45 of 2021 Page2
Village-Dehar Kala Kuchi,
P.S. Mukalmua,
District- Nalbari,Assam.
(Driver of Vehicle No. AS-01-BF-5374.
For Appellant(s) 1. Mr. K.K. Dutta, Advocate.
For Respondent(s) 1. Mr. M. Dutta, Advocate.
Date of judgment : 25.02.2025.
BEFORE
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT & ORDER (CAV)
1. Heard Mr. M. Dutta, the learned counsel for the appellant in MAC
Appeal No. 233/2020, as well as the learned counsel for the
respondents in MAC Appeal No. 45/2021. Also heard Mr. K.K.
Dutta, the learned counsel for the respondents in MAC Appeal
No. 233/2020, as well as the learned counsel for the appellants
in MAC Appeal No. 45/2021.
2. By this common judgment, this Court proposes to dispose of two
MAC Appeals, namely, MAC Appeal No. 233/2020, as well as
MAC Appeal No. 45/2021, as both the appeals are directed
against a common judgment, i.e., the judgment and award
dated 18.06.2020, passed by the learned Member, Motor
Accident Claims Tribunal No. 3, Kamrup (Metro) at Guwahati, in
MAC Case No. 939/2018.
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MACApp. No. 45 of 2021 Page3
3. By the impugned judgment and award, the claimants, i.e., the
appellants of MAC Appeal No. 45/2021, as well as the
respondent Nos. 1 and 2 of MAC Appeal No. 233/2020, were
awarded a compensation amount of Rs. 7,12,486/- (Rupees
Seven Lakhs Twelve Thousand and Four Hundred Eighty Six
only) along with an interest @ 7.5% per annum from the date of
filing of the claim petition till the date of realization.
4. The MAC Appeal No. 45/2021, has been filed by the
appellants/claimants, being aggrieved with the quantum of the
compensation, wherein, a prayer for enhancement of the
quantum of the compensation has been made.Whereas, the MAC
Appeal No. 233/2020 has been filed by the appellant/Insurance
Company, praying for setting aside of the impugned judgment
and award.
5. The facts relevant for consideration of both the above-mentioned
appeals are that:-
i. On 16.04.2018, at about 5:45 PM, when the
claimant No. 1 was proceeding from Kamalpur
towards Baihata Chariali on a motorcycle bearing
Registration No. AS-01-BF-5374 as a pillion rider,
when the motorcycle reached near Daibya Sakti
parking on National Highway No. 31, the said
motorcycle met with an accident owing to rash
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MACApp. No. 45 of 2021 Page4
and negligence of the driver of the motorcycle. As
a result of the said accident, the claimant No.1
sustained grievous injuries and which also caused
compound fracture of both bones of right leg as
well as fracture on ribs.
ii. It is pertinent to mention herein that in this regard
a police case was also registered as Baihata
Chariali P.S. Case No. 100/2018 under Section
279/338 of the Indian Penal Code. The motorcycle
involved in the incident was insured with the
United India Insurance Company Limited, i.e., the
appellant of MAC Appeal No. 233/2020.
iii. Thereafter, the claimant No.1 Abdul Sarwar Khan
@ Sarwar Khan and his wife Nazma Begum filed a
claim case under Section 166 of the Motor Vehicles
Act, 1988 claiming compensation on account of
injury sustained by the claimant No.1 in the motor
vehicle accident.
iv. After the filing of the aforesaid case, notices were
duly served to all the opposite parties, including
the respondent Nos. 3 and 4, i.e., the owner and
driver of the offending motorcycle, who did not
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MACApp. No. 45 of 2021 Page5
appear before the Tribunal and contest the case.
Accordingly, the claim case proceeded ex-parte
against the owner as well as the driver of the
offending vehicle. The insurance Company
contested the case by filing written statement.
v. In support of their claim, the claimants examined
1(one) PW, i.e., the claimant No. 1 himself.
Though the respondent/ insurance company also
adduced the evidence of 1(one) DW, namely,
Rabin Kr. Das, who was the Assistant Manager
from the regional office of the appellant/insurance
company, however, as the said witness did not
appear for his cross-examination, hence, the
evidence (Examination-in-Chief) of DW-1 was
expunged.
vi. Ultimately, after considering the materials on
record and after hearing the learned counsel for
both the sides, a compensation amount of Rs.
7,12,486/- (Rupees Seven Lakhs Twelve Thousand
and Four Hundred Eighty Six only), along with an
interest @ 7.5 % per annum from the date of
filing of the claim petition, i.e., 11.05.2018, till
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MACApp. No. 45 of 2021 Page6
realization was directed by the Motor Accident
Claims Tribunal.
6. In MAC Appeal No. 233/2020, the appellant/insurance company
has assailed the impugned judgment and award dated
18.06.2020, mainly on the ground that the learned Motor
Accident Claims Tribunal erred in awarding compensation to the
claimants by ignoring the contradictions in the evidence adduced
by the claimants.
7. It is submitted by the learned counsel for the appellant in MAC
Appeal No. 233/2020 that the identity of the claimant was itself
doubtful, as in some of the documents exhibited by the claimant
side, his name was shown as Sarwar Khan and in some
documents, it was shown as Md. Abdul Sarwar Khan, and there
is nothing on record to show that both the names are of one and
the same person. He submits that the Motor Accident Claims
Tribunal erroneously awarded compensation to the claimants
ignoring the aforesaid discrepancy.
8. The learned counsel for the appellant in MAC Appeal No.
233/2020, Mr. M. Dutta has submitted that in Exhibit-7, 9, 11 &
16 the name of the injured was stated as 'Sarwar Khan' whereas,
in Exhibit-8, 13, & 15, it is mentioned as 'Abdul Sarwar Khan.' He
has further submitted that different addresses of the injured
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MACApp. No. 45 of 2021 Page7
were shown in different documents exhibited by the claimants.
The learned counsel for the appellant of MAC Appeal No.
233/2020 has also submitted that even the age of the claimant
No. 1 has been given differently in different documents, which
itself raises a doubt regarding the genuineness of the documents
relied upon by the claimant's side.
9. The learned counsel for the appellant in MAC Appeal No.
233/2020 also submitted that, as regarding the injury sustained
by the claimant No.1, a doubt was raised as in some of the
documents like Exhibit-8 and Exhibit-7, the injury sustained by
the claimant No. 1 was shown on his right leg, i.e., fracture of
both the tibia and fibula of the right leg. However, in Exhibit No.
15, it was mentioned that the injury sustained by the claimant
No. 1 was on his left leg.
10. The learned counsel for the insurance company has, therefore,
submitted that the documents relied upon and exhibited by the
claimants in support of their claim before the claims Tribunal
were contradictory and no relief ought to have been granted to
them on the basis of such inconsistent documents.
11. The learned counsel for the appellant/insurance company further
submitted that the claimant had also exhibited certain
documents in the claim case, which did not pertain to the
claimant himself. For example, he mentions about Exhibit-254,
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MACApp. No. 45 of 2021 Page8
which was a cash memo for Rs. 679/- (Rupees Six Hundred
Seventy-Nine only) issued against a patient named 'Rekha Das.'
As this exhibit did not relate to claimant No. 1, it ought not to
have been taken into consideration by the claims Tribunal. He
further submits that similarly, Exhibit-182, exhibited by the
claimant in the claims case, pertains to a person named, Mr. B.
Khan, and it has nothing to do with the claimant of the case.
12. The learned counsel for the appellant/insurance company also
submits that Exhibit-8 also shows that the patient, i.e., Abdul
Sarwar Khan, was found to be under the influence of alcohol,
and therefore, it is indicative of the fact that it may be the
claimant himself who was responsible for the accident, as he was
in an inebriated state.
13. The learned counsel for the appellant/insurance company
therefore submits that due to such discrepancies, the
genuineness of the documents relied upon by the claimant
becomes doubtful, and it creates doubt regarding the bona fide
of the claimant, and suggests that the claim case was filed by
the claimant mainly for unlawful gain.
14. On the other hand, Mr. K.K. Dutta, the learned counsel for the
claimants, and the respondent Nos. 1 and 2 in MAC Appeal No.
233/2020, and the appellants in MAC Appeal No. 45/2021, has
submitted that in the evidence-on-affidavit submitted by the
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MACApp. No. 45 of 2021 Page9
claimants, the claimants have stated that Abdul Sarwar Khan
and Sarwar Khan are the names of one and the same persons,
and he further submits that on the date of the accident, i.e.,
16.04.2018, the claimant was taken to the hospital by the
persons, who found him in an injured condition, and on that day,
while recording his name in the hospital at the time of
admission, the full name might not have been given by the
persons who took him to the hospital, and this in itself may not
be a ground for disbelieving the testimony of the claimant as
well as the documents relied by him.
15. He submits that in this regard, the wife of the claimant also
lodged an FIR, and a G.D. Entry No. 466 dated 16.04.2018 was
also made at Baihata Chariali Police Station. He also submits that
the claimant No.1 sustained injuries mainly on his right leg, and
the mention of left leg in Exhibit-15 may be a mistake which has
been rightly ignored by the Claims Tribunal.
16. The learned counsel for the respondent Nos. 1 and 2 of MAC
Appeal No. 233/2020 has further submitted that the total bills
and vouchers submitted by the claimants were of Rs. 7,00,000/-
(Rupees Seven Lakhs only). However, after meticulous scrutiny
of the bill, the Claims Tribunal found that the claimant had
incurred expenses to the tune of Rs. 6,34,456/-(Rupees Six
Lakhs Thirty-Four Thousand and Four Hundred Fifty Six only).
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MACApp. No. 45 of 2021 Page10
17. The learned counsel for the claimants further submitted that the
MAC Tribunal erred in computing the compensation to which the
claimants are entitled. The learned Tribunal assessed the loss of
income of claimant No. 1 for only two months, whereas he was
undergoing treatment for about ten months. Furthermore, he
submits that although claimant No. 1 claimed to have been
earning an income of Rs. 15,000/- (Rupees Fifteen Thousand
only) per month, his earnings were erroneously assessed at Rs.
4,000/- (Rupees Four Thousand only).
18. Further, as regards the pain and suffering sustained by the
claimant, the Tribunal has awarded only Rs. 30,000/-(Rupees
Thirty Thousand only), whereas, the learned counsel for the
claimant has submitted that the award should be more under
this head, i.e., minimum of 2 lakhs should have been awarded.
In support of his submission, he has cited a ruling of the Apex
Court in the case of "Sandeep Khanuja v. Atul Dande," reported
in"(2017) 3 SCC 351."
19. On the other hand, the learned counsel for the insurance
company has submitted that the compensation was correctly
awarded and due to the inconsistencies in the document relied
upon by the claimants; no enhancement should be made to the
compensation which has already been awarded.
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MACApp. No. 45 of 2021 Page11
20. I have considered the submissions made by the learned counsel
for both sides in both the appeals and have perused the
materials available on record, including the records of the MAC
Case No. 939/2018 which was requisitioned in connection with
the present appeals.
21. It is pertinent to mention herein that the appellant of MAC
Appeal No. 233/2020 also filed an interlocutory application under
Order 41, Rule 27 of the Code of Civil Procedure, 1908, praying
for allowing the appellant to adduce additional evidence in this
appeal. However, by order dated 24.09.2024, passed in
I.A.(Civil)Case No. 1661/2020, the said prayer was rejected. The
appellant has not preferred any appeal against the said order
before any higher forum.
22. It appears that the appellant of MAC Appeal No. 233/2020, i.e.,
the insurance company has assailed the impugned order mainly
on the ground of discrepancies in the name of the claimant No.
1. However, when we peruse the records, it appears that even in
the application filed under Section 166 of the Motor Vehicles Act,
1988, the name of claimant No. 1 has been mentioned as Sarwar
Khan @ Abdul Sarwar Khan and in column No. 1 at page 2 of the
said application, where the particulars of the name and the
father's name of the injured are stated, it has been categorically
mentioned as Sarwar Khan @ Abdul Sarwar Khan. In his
evidence-on-affidavit also, the PW-1 has also stated that his
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MACApp. No. 45 of 2021 Page12
name to be Sarwar Khan @ Abdul Sarwar Khan. During his
cross-examination, PW-1 has denied the suggestion that Sarwar
Khan and Abdul Sarwar Khan are not one and the same person.
However, when the claimant has stated on affidavit that Sarwar
Khan and Abdul Sarwar Khan are names of one and the same
person, the burden shifts to the insurance company to show that
they are not the same. However, the insurance company has
failed to relieve this burden and this fact has been taken into
consideration by the learned Member of the Motor Accident
Claims Tribunal No. 3 in the paragraph No. 16 of the impugned
judgment.
23. Under the aforesaid facts and circumstances, this Court is of the
considered opinion that merely because of the fact that in some
of the documents exhibited by the claimants, the full name of
claimant No. 1, i.e., Abdul Sarwar Khan, has not been
mentioned, and only "Sarwar Khan" has been mentioned, this
may not be a ground for discrediting his testimony and the
same, in itself, may not be a ground to conclude that both are
names of two different persons, unless some concrete evidence
to that effect is brought on record which the insurance Company
has miserably failed. Therefore, this contention raised by the
insurance Company is, in the considered opinion of this Court,
not sufficient to deny the compensation awarded to the
claimants since the fact of the accident and the injuries suffered
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MACApp. No. 45 of 2021 Page13
by the claimant are clearly proved on the basis of evidence
adduce during the inquiry.
24. Regarding the injuries sustained by claimant No. 1, it appears
that in his evidence-on-affidavit submitted during the inquiry
before the Motor Accident Claims Tribunal, the claimant No. 1
has categorically stated that he sustained compound fracture of
both bones of the right leg. In all other medical documents
except Exhibit-15, the mention of injury sustained in the right leg
is there. Hence, merely because one of the document, i.e.,
Exhibit 15, the injury is stated to be in the left leg does not
contradict the claim of the claimant as, it is not only Exhibit-15,
i.e., relied upon by the claimant as well as considered by the
Motor Accident Claims Tribunal. Rather, there are other
documents like Exhibit-7, 8, 9, 10 and 11 which show that the
injuries sustained by the claimant No. 1 were in the right leg.
Thus, even if Exhibit-15 is ignored, there is sufficient materials
and the documents on record which clearly shows that the
claimant No. 1 sustained a fracture of the right leg. As a result,
the contention raised by the Insurance Company is not
sustainable.
25. As regards the submission of the learned counsel for the
Insurance Company that claimant No. 1 was under the influence
of alcohol and, therefore, his negligence might have been the
cause of the accident, the same is not acceptable in the facts
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MACApp. No. 45 of 2021 Page14
and circumstances of this case. At the time of the accident,
claimant No. 1 was merely a pillion rider on the scooter, and the
accident occurred due to the negligence of the driver of the
vehicle.
26. As regards the contention of the learned counsel for the
insurance company that the Exhibit No. 254 and Exhibit No. 182
were in the name of some other person, there is no material on
record to show that the said exhibits were considered by the
Motor Accident Claims Tribunal, while computing the medical
expenditure incurred by the claimant No. 1. In paragraph No. 13
of the impugned judgment, the Tribunal has clearly stated that
though the claimant submitted vouchers and bills for an amount
of Rs. 7,00,000/- (Rupees Seven Lakhs only). After meticulous
scrutiny of bills, the actual expenditure incurred by the claimant
was found to be Rs. 6,34,486/-(Rupees Six Lakhs Thirty Four
Thousand and Four Hundred Eighty Six only). Therefore, it
appears that the Tribunal has excluded certain bills and vouchers
that were not found to be of the claimant. Moreover, the
insurance company has failed to show that the Exhibit No. 254
and 182 were taken into consideration while computing the
expenditure incurred on medical expenses by the claimant No. 1.
This Court is, therefore, of the considered opinion that the Motor
Accident Claims Tribunal has correctly assessed the
compensation to which the claimants were entitled after
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MACApp. No. 45 of 2021 Page15
considering the materials on record and thus, the same does not
require any interference by this Appellate Court.
27. This Court is, therefore, of the opinion that the appeal filed by
the insurance company, i.e., Appeal No. 233/2020 does not have
any merit and the same is liable to be dismissed.
28. As regards the Appeal No. 45/2021 filed by the claimant is
concerned, though, we do not agree with the reasoning of the
Motor Accident Claims Tribunal in assessing the loss of income
for two months @ Rs. 4000/- (Rupees Four Thousand only).
However, the fact remains that the claimant has neither
produced any permanent disability certificate nor any partial
disability certificate and therefore, there is nothing by which it
can be shown that due to the injury sustained in the accident,
the appellant was disabled to perform his regular work, which
was his source of earning. He has not adduced any evidence to
show that his regular work was affected beyond the period of
two months, for which compensation against the head of loss of
income has been awarded by the Tribunal.
29. As regards the compensation against mental and physical agony
is concerned, the claimant has relied upon the judgment of the
Apex Court in the case of Sandeep Khanuja (supra). However, in
the said case, the claimant had sustained permanent injury to
the extent of 70% and was a Chartered Accountant, whereas, in
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MACApp. No. 45 of 2021 Page16
the instant case, there is no proof of any permanent or partial
disablement.
30. Hence, this Court is of considered opinion that under the facts
and circumstances of this case, the compensation assessed by
the Motor Accident Claims Tribunal is the correct compensation,
which does not need any interference by this Court in this
appeal.
31. The MAC Appeal No 45 of 2021 filed by the claimants is also
devoid of any merit.
32. Accordingly, both the appeals are dismissed.
33. Send back the records, which were requisitioned in connection
with these appeals to the concerned Motor Accident Claims
Tribunal.
JUDGE
Comparing Assistant
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MACApp. No. 45 of 2021 Page17
