Page No.# 1/14 vs Amarjit Singh And 4 Ors
2025 Latest Caselaw 996 Gua

Gauhati High Court

Page No.# 1/14 vs Amarjit Singh And 4 Ors on 14 July, 2025

                                                                    Page No.# 1/14

GAHC010138272022




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

                        Case No. : MACApp./362/2022

         RATNA GHOSH AND 3 ORS
         W/O LT. TAPAN KUMAR GHOSH,
         R/O VILL.- KACHUA TINIALI, P.O. AND P.S.- KACHUA, DIST.- NAGAON,
         ASSAM, PIN- 782426.

         2: ROHIT GHOSH
          S/O LT. TAPAN KUMAR GHOSH
          R/O VILL.- KACHUA TINIALI
          P.O. AND P.S.- KACHUA
          DIST.- NAGAON
         ASSAM
          PIN- 782426.

         3: RAJ KUMAR GHSOH
          REP. BY APPELLANT NO. 1.
         S/O LT. TAPAN KUMAR GHOSH
          R/O VILL.- KACHUA TINIALI
          P.O. AND P.S.- KACHUA
          DIST.- NAGAON
         ASSAM
          PIN- 782426.

         4: USHA RANI GHOSH
         W/O LT. PREMANANDA GHOSH
          R/O VILL.- KACHUA TINIALI
          P.O. AND P.S.- KACHUA
          DIST.- NAGAON
         ASSAM
          PIN- 782426

         VERSUS

         AMARJIT SINGH AND 4 ORS
         S/O MAHENDRA SINGH, R/O BEHARBARI, BELTOLA, P.O.- BELTOLA, P.S.-
                                                                           Page No.# 2/14

            BASISTHA,
            DIST.- KAMRUP(M), ASSAM, PIN- 781029.

            2:SUBHASH KUMAR
             S/O LATE CHAMAN LAL
            VILL.- GURDASPR (PUNJAB)
             PIN- 143521.

            3:THE NEW INDIA ASSURANCE CO. LTD.
             REGIONAL OFFICE
             ULUBARI
             G.S ROAD
             GUWAHATI- 781007.

            4:MD. JAKIR HUSSAIN
             S/O NUR MAHAMAD
            VILL.- AZARA
             NATH KHOWAPARA
             P.O. AND P.S.- AZARA
             DIST.- KAMRUP
            ASSAM
             PIN- 781017.

            5:M/S ORIENTAL INSURANCE COMPANY LTD.
             REP. BY THE REGIONAL MANAGER
             G.S. ROAD
             P.O.- ULUBARI
             GUWAHATI- 781007

Advocate for the Petitioner   : MR. S CHAUHAN, MR. P MAZUMDER,MR. A R SHOME

Advocate for the Respondent : MS. R D MOZUMDAR (r-3,5), MR. S P SHARMA (r-3,5),MS. C

MOZUMDAR (r-3,5)

BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA

For the Appellant :Mr. S. Chauhan,Advocate

For the Respondent :Ms. R. D. Mozumdar, Advocate (for respondent Nos. 3 & 5) Page No.# 3/14

Date of Judgment :14.07.2025

JUDGMENT & ORDER (CAV)

1. Heard Mr. S. Chauhan, learned counsel for the appellants. Also heard Ms. R. D. Mozumdar, learned counsel appearing for the respondent Nos. 3 & 5.

2. This Appeal under Section 173 of the MV Act, 1988 has been filed by the claimants/appellants impugning the judgment and award dated 30.06.2022 passed in MAC Case No. 1011/2012 by the learned Member, Motor Accident Claims Tribunal No. II, Kamrup(M), Guwahati whereby the respondent New India Assurance Company Limited (respondent No. 3) was directed to pay a compensation amount of Rs.8,64,500/- (Rupees Eight Lakh Sixty Four Thousand Five Hundred) to the claimants within a period of thirty days from the date of the judgment, along with an interest @ 7.5% per annum from the date of filing of the evidence on affidavit i.e., 12.03.2021 till the date of payment.

3. The facts relevant for consideration of the instant MAC Appeal, in brief, are as follows:-

i. That on 21.08.2011, at about 5:30 PM, the husband of appellant No. 1, father of appellant Nos. 2 and 3 as well as son of appellant No. 4, namely, Tapan Kumar Ghosh was coming from Tezpur to Guwahati in an Alto car bearing Registration No. AS-01-BC-4156. He was accompanied by two other persons, namely, Pabitra Saikia and Mahidul Islam and the said car was driven by one Hasmat Ali. When the said vehicle reached at Katani Gaon at N.H. No. 52, one truck bearing Registration No. NL-01-G-4158, which was driven in a rash and negligent manner and was proceeding from the opposite direction, hit the Alto Page No.# 4/14

vehicle. As a result of the said accident, Tapan Kumar Ghosh sustained grievous injuries and he succumbed to the said injuries on his way to the hospital.

ii. Thereafter, on 13.06.2012, the appellants filed a motor accident claims case under Section 166, read with Section 140 of the MV Act, 1966, seeking compensation for the death of late Tapan Kumar Ghosh in the motor vehicular accident which occurred on 21.08.2011. The Insurance Company of the truck and the Insurance Company of the Alto car, as well as the owner of the Alto car, entered his appearance in the claim case and contested the case by filing written statements. However, the case proceeded ex parte against the owner and driver of the offending truck bearing Registration No.NL-01-G-4158.

iii. On the basis of the pleadings of the parties, following issues were framed:-

"1. Whether on 21-08-2021 at about 07:45 P.M. at Katani Gaon,

on the National Highway No. 52 under Thelamara Police Station as accident has arisen due to the rash and negligent driving of the vehicles bearing Registration No.NL-01-G-4158 (Truck) and AS-01-BC-4156 (Alto Car) on the parts of its drivers and whether the said accident has caused the death of Tapan Kumar Ghosh?

(2) If so, whether the claimants are entitled to receive any compensation, and if yes, what should be the quantum and who amongst the opposite parties, is liable to pay the Page No.# 5/14

compensation amount?"

iv. The claimants in order to prove their case have adduced the evidence of two witnesses and exhibited about 15 documents as Exhibit-1 to Exhibit-15. However, the opposite parties adduced no evidence in support of their defence. Ultimately, by the impugned judgment and award, the learned Member, Motor Accident Claims Tribunal No. 2, Kamrup(M), Guwahati awarded a compensation amount of Rs.8,64,500/- (Rupees Eight Lakh Sixty Four Thousand Five Hundred) to the claimants.

v. The insurer of the offending truck, namely, the New India Assurance Company Limited (respondent No. 3) was directed to pay compensation amount to the claimant within a period of 30(thirty) days from the date of the impugned judgment and award along with an interest @ 7.5% per annum from the date of filing of evidence on affidavit i.e., 12.03.2021 till realization of the said amount.

vi. It was also directed that out of the awarded amount, a sum of Rs.3,64,500/- (Rupees Three Lakh Sixty Four Thousand) was directed to be released to the claimant No. 1 i.e., the wife of the deceased to meet the immediate exigency and a sum of Rs.2,00,000/- (Rupees Two Lakh) was directed to be released to the claimant No. 5 i.e., the mother of the deceased and as claimant No. 2 and 3 who were the son of the deceased, it was directed that an amount of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand) each out of the awarded amount shall be fixed in any nationalized bank till they attained majority or till two years.

4. Mr. S. Chauhan, the learned counsel for the appellants has submitted Page No.# 6/14

that the appellants have assailed the impugned judgment and award mainly on two grounds, firstly, that in spite of the fact that the claimants have exhibited a salary certificate showing salary of the deceased to be Rs.10,750/- as Exhibit- 15, the Motor Accident Claims Tribunal did not consider the said exhibit and notionally assessed the income of the deceased at Rs.5,000/- per month.

5. The learned counsel for the appellants has submitted that the Motor Accident Claims Tribunal had erred in notionally fixing the salary of the deceased, namely, Tapan Kumar Ghosh at Rs.5,000/- per month in spite of clear proof of his higher income at the time of his death.

6. The learned counsel for the appellants has also submitted that the Motor Accident Claims Tribunal while awarding the compensation to the appellants by the impugned judgment has directed the payment of interest on the awarded amount @ 7.5% per annum till realization. However, he submits that the Apex Court has granted interest @ 9% per annum as well as 12% per annum in several of its rulings.

7. The learned counsel for the appellants has also submitted that the Motor Accident Claims Tribunal has also erred in directing the payment of interest on the awarded amount w.e.f. 12.03.2021 i.e., from the date of filing evidence on affidavit which is contrary to the rulings of the Apex Court in several cases in this regard wherein it has held that the payment of interest should be given from the date of filing of the claim i.e., in the instant case from 13.06.2012. In support of his submission, the learned counsel for the appellants has cited following rulings:-

(i) "National Insurance Company Limited -Vs- Birender and Ors.," reported in "(2020) 11 SCC 353"wherein the Court awarded an interest @ 9% per Page No.# 7/14

annum from the date of filing of the claim petition till realization.

(ii) "Jiju Kuruvila and Ors., -Vs- Kunjujamma Mohan and Ors.," reported in "(2013) 9 SCC 166" wherein an interest @ 12% per annum was granted on

the awarded amount from the date of filing of the claim petition till the date of realization.

(iii) "United India Insurance Company Limited and Ors. -Vs- Patricia Jean Mahajan and Ors.," reported in "(2002) 6 SCC 281" wherein an interest of

9% per annum was awarded on the awarded amount.

(iv) "Asha Verman and Ors. -Vs- Maharaj Singh and Ors.," reported in "(2015) 11 SCC 389" wherein the interest rate of 8% per annum awarded

by the Tribunal was increased to 9% per annum.

(v) "Union of India -Vs- Rina Devi" reported in "(2019) 3 SCC 572" wherein 9% of interest was awarded from the date of application till realization.

8. The learned counsel for the appellants has, therefore, submitted that in the instant case also the interest awarded on the awarded amount i.e., 7.5% per annum from the date of filing of evidence on affidavit may be increased to 9% per annum from the date of filing of the claim petition.

9. On the other hand, Ms. R. D. Mozumdar, the learned counsel for the respondent Nos. 3 and 5 has vehemently opposed the prayer of the appellants on the ground that the appellants in their memo of appeal have not taken any ground regarding notional fixation of the income of the deceased Tapan Kumar Ghosh at Rs.5,000/- per month by the Motor Accident Claims Tribunal. She submits that the appellants have not challenged the finding of the Motor Accident Claims Tribunal in Paragraph No. 34 of the impugned Judgment and Award whereby the income of the deceased Tapan Kumar Ghosh was notionally Page No.# 8/14

fixed at Rs.5,000/- (Rupees Five Thousand) per month, it is not open for the learned counsel for the appellants to make an oral submission in that respect without any amendment/addition to the grounds stated by the appellants in their memo of appeal.

10. The learned counsel for the respondent Nos. 3 and 5 has further submitted that though the appellants had filed the claim case before the Motor Accident Claims Tribunal No. 2, Kamrup(M), Guwahati under Section 166 of the Motor Vehicles Act on 13.06.2012, however, they remain absent before the Motor Accident Claims Tribunal in MAC Case No. 1011/2012 since 20.08.2013 and, therefore, by order dated 12.03.2014, the MAC Case No. 1011/2012 was filed. Thereafter, by order dated 16.09.2016, the Motor Accident Claims Tribunal has dismissed the prayer for restoration of MAC Case No. 1011/2012 filed by the engaged counsel for the claimants before the Motor Accident Claims Tribunal. She has further submitted that the appellants preferred an appeal impugning the order dated 16.09.2016 and 12.03.2014 passed in MAC Case No. 1011/2012 which was registered as MAC Appeal No. 882/2018.

11. The learned counsel for the respondent Nos. 3 and 5 has further submitted that by order dated 24.09.2019, the aforesaid appeal was allowed and the impugned order dated 12.03.2014 as well as 16.08.2016 passed in MAC Case No. 1011/2012 was set aside and the MAC Case No. 1011/2012 was restored to file.

12. The learned counsel for the respondent Nos. 3 and 5 has also submitted that while allowing the appeal in MAC Appeal No. 882/2018, the Co- ordinate Bench of this Court made an observation that in the event the Tribunal comes to a conclusion that the appellants are entitled to compensation, the Tribunal shall keep in mind about the delay caused by the appellants while Page No.# 9/14

granting the interest. She has submitted that for this reason, the Motor Accident Claims Tribunal had awarded the interest on the awarded compensation from the date of filing of the evidence and same was justified as the appellants were negligent in pursuing their claim after filing the same. She has further submitted that the appellants is also at fault in suppressing the above stated facts in his memo of appeal as nowhere in this appeal, the appellants has mentioned that the appeal was filed due to his negligence and it was because of the order passed by this Court in MAC Appeal No. 882/2018 on 24.09.2019 that the said MAC case was restored with some observations.

13. She has further submitted that the present rate of interest awarded in nationalized bank fixed deposit ranges from 3.50% to 7.25%, hence, she submits that the rate of interest of 7.5% awarded by the impugned judgment is a reasonable right and same should not be altered without there being any justification for the same.

14. I have considered the submissions made by the learned counsel for both sides and I have also perused the documents available on record including the record of MAC Case No. 1011/2012 which was requisitioned in connection with this case from the Motor Accident Claims Tribunal No. II, Kamrup(M), Guwahati. I have also perused the records of MAC Appeal No. 882/2018 which was also requisitioned in connection with the instant appeal.

15. The point for determination in this appeal are as follows: -

(i) Whether the appellants are precluded from raising issue of erroneous computation of the notional income of the deceased Tapan Kumar Ghosh when no such ground regarding erroneous computation of the notional income of the deceased was set forth in the memo of appeal as the Page No.# 10/14

grounds for appeal by the appellants?

(ii) Whether the Motor Accident Claims Tribunal was right in fixing the rate of interest @ 7.5% per annum on the awarded amount from the date of filing of evidence till realization instead from the date of filing of the claim petition.

16. As regards the first point for determination is concerned, it appears that in the memo of appeal filed by the appellants, they have mainly objected to in fixing the rate of interest @ 7.5% per annum from the date of filing of the evidence on affidavit instead of giving interest @ 9.5% per annum from the date of filing of the claim petition. Nowhere in the grounds set forth in the memo of appeal, the question of erroneous computation of notional income of the deceased Tapan Kumar Ghosh has been set forth in the memo of appeal.

17. Order 41 Rule 2 of the Code of Civil Procedure, 1908 prescribes an embargo of hearing the appeal on any ground not set forth in the memorandum of appeal without the leave of the Court.

18. In the instant case, no such leave was sought for by the appellants before raising the issue of erroneous fixation of notional income of the deceased Tapan Kumar Ghosh @ Rs. 5.000/- per month.

19. The Motor Accident Claims Tribunal has, in paragraph No. 34 of the impugned judgment, provided reasons for assessing the income of the deceased Tapan Kumar Ghosh notionally @ Rs. 5.000/- per month and same has not been agitated in the memo of appeal. Neither any leave of this Court was obtained by the appellants' side for agitating the said issue at the time of hearing, hence, this Court is of considered opinion that the embargo provided in Order 41 Rule 2 of the Code of Civil Procedure, 1908, would be applicable to this case, and Page No.# 11/14

accordingly, the first point for determination in this appeal is decided in affirmative against the appellants.

20. As regards the second point for determination is concerned, it appears that though the appellants had filed the claim petition before the learned Motor Accident Claims Tribunal No. 2, Kamrup(M), Guwahati on 13.06.2012, however, as they remain absent without any steps in MAC Case No. 1011/2012 since 20.08.2013, the said MAC case was "filed" by the learned Tribunal on 12.03.2014 and thereafter a prayer for restoration of the same was filed by the learned counsel for the claimant before the Claims Tribunal, which was rejected by Order dated 16.09.2016 passed in MAC Case No. 1011/2012.

21. It also appears on perusal of the records that MAC Appeal No. 882/2018 that by order dated 24.09.2019, the MAC Case No. 1011/2012 was restored to file with an observation that if the Tribunal comes to a conclusion that the appellants are entitled to compensation, the Tribunal shall keep in mind about the delay caused by the appellants while granting the interest.

22. It is pertinent to mention herein that this fact was not revealed to this Court by the appellants' side and only when the learned counsel for the respondents pointed out these facts the records of MAC Appeal No. 882/2018 was requisitioned and the submission of the learned counsel for the respondent could be verified.

23. On perusal of the records, it appears that the submissions made by the learned counsel for the respondent No. 3 and 5 are true. It appears that while restoring the MAC Case No. 1011/2012 there was an observation made by a Co-ordinate Bench of this Court in MAC Appeal No. 882/2018 by order dated 24.09.2019 that the Motor Accident Claims Tribunal while considering the Page No.# 12/14

question of granting the interest shall keep in mind about the delay caused by the appellants.

24. These facts were nowhere pleaded in the memo of appeal or otherwise brought to the notice of this Court by the counsel for the appellants. It appears that though the claim petition has been filed in this case on 13.06.2012, however, the evidence on affidavit of the witness for the claimant was filed on 12.03.2021 and from the records available before this Court, it is apparent that it was the appellants' side which was negligent in causing the delay in disposal of MAC Case No. 1011/2012.

25. Though, the general rule of awarding interest is from the date of filing of the claim petition, however, if there is a negligence on the part of the claimants and delay in disposal of the claim application is caused due to the negligence of the claimants, they may not be allowed to take benefit of their own fault by allowing them to claim interest from the date of filing of the claim petition in spite of the fact that the delay in disposal of the claim petition was caused due to their negligence.

26. This Court is, therefore, of the considered opinion that the Motor Accident Claims Tribunal has rightly decided to allow the payment of interest on the awarded amount from the date of filing of evidence on affidavit instead of date of filing of the claim petition. However, it is also true that the Motor Accident Claims Tribunal could have justified its decision by stating the reasons for doing so in the impugned judgment itself which it did not do in the instant case. Thus, considering the peculiar facts and circumstances of this case, even though the learned Motor Accident Claims Tribunal No. 2, Kamrup(M), Guwahati has failed to state the reasons for imposing the interest from the date of filing of evidence on affidavit. However, for the reasons discussed herein above, this Page No.# 13/14

Court finds that the conclusion arrived at by the learned Motor Accident Claims Tribunal is justified. Hence, this court does not intend to disturb the said finding in this appeal.

27. As regards the rate of interest awarded by the Motor Accident Claims Tribunal i.e., @ 7.5% per annum is concerned, the appellants are aggrieved mainly on the ground that in the cases cited by the learned counsel for the appellants, the Apex Court has awarded interest at the rate of 9% or more and that the case of the appellants should be treated similarly.

28. I have gone through the rulings cited by the learned counsel for the appellants in which the Apex Court has awarded an interest at the rate of 9% or more on the awarded compensation amount.

29. In all the cases referred to in the paragraph No. 7 of this judgment, the Apex Court has awarded an interest at the rate of 9% or more on the awarded compensation amount. The rate of interest has to be a reasonable rate at par with what has been awarded in similar accident claims cases. This Court is of considered opinion that, in the absence of any specific statutory provisions regarding the rate of interest to be awarded in such cases, the rate of interest which has been awarded by the Apex Court in similar cases may be awarded in this case too so as to maintain uniformity. Accordingly, it is directed that New India Assurance Company Limited (respondent No. 3) shall pay a compensation amount of Rs.8,64,500/- (Rupees Eight Lakh Sixty Four Thousand Five Hundred) to the claimants along with an interest @ 9% per annum from the date of filing of the evidence on affidavit i.e., 12.03.2021 till the date of payment.

30. The impugned judgment is modified to the extent indicated herein above.

Page No.# 14/14

31. This appeal is accordingly, partly allowed.

32. Send back the records which were requisitioned in connection of this appeal along with a copy of this judgment.

JUDGE

Comparing Assistant