Page No.# 1/8 vs Smt. Junali Kalita And 2 Ors
2025 Latest Caselaw 5703 Gua

Gauhati High Court

Page No.# 1/8 vs Smt. Junali Kalita And 2 Ors on 25 June, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                             Page No.# 1/8

GAHC010000912022




                                                                      2025:GAU-AS:8612

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

                          Case No. : MACApp./37/2022

         THE UNITED INDIA INSURANCE COMPANY LTD.
         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 OFFICE, GUWAHATI

         VERSUS

         SMT. JUNALI KALITA AND 2 ORS.
         W/O SRI BHANU KALITA, R/O VILL-GANDHINAGAR, P.S.-SILAPATHAR, P.O.
         AND DIST-DHEMAJI, ASSAM, PIN-787059

         2:TULARAM BORAH
          S/O SRI ALOM BORAH
          R/O VILL-MORANGAON
          P.S.-SILAPATHAR
          DIST-DHEMAJI
         ASSAM
          PIN-787059

         3:SUNIL BORUAH
          S/O SRI MOINA BORUAH
         VILL-SOMABARI
          P.S.-SILAPATHAR
          DIST-DHEMAJI
         ASSAM
          PIN-78705

              For the Appellant(s)     : Mr. A. J. Saikia, Advocate
              For the Respondent(s)    : Dr. P. Agarwal, Legal-aid-counsel
                                       : Mr. B. Baruah, Advocate
                                                                    Page No.# 2/8

               Date of Hearing            : 25.06.2025

               Date of Judgment           : 25.06.2025



                               BEFORE
                HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                         JUDGMENT AND ORDER (ORAL)

Heard Mr. A. J. Saikia, the learned counsel appearing on behalf of the appellant and Dr. P. Agarwal, the learned legal-aid-counsel appearing on behalf of the respondent No.1 and Mr. B. Baruah, the learned counsel appearing on behalf of the respondent No.2.

2. This is an appeal filed under Section 173 of the Motor Vehicles Act, 1988 (for short 'the Act of 1988') challenging the judgment and award dated 28.09.2021 passed in MAC Case No.05/2019 whereby the learned Tribunal awarded an amount of Rs.3,55,000/- as a compensation to the claimant along with interest @8% per annum from 05.03.2019 i.e. the date of filing of the claim petition till payment. The said amount was directed to be satisfied by the appellant Insurance Company within one month from the date of the award.

3. The instant appeal has been filed only on the ground that the accident have taken place on 20.12.2018 and the insurance policy admittedly issued by the appellant Insurance Company was only effective from 25.12.2018 to 24.12.2019 and as such, the learned Tribunal could not have fastened the liability upon the appellant Insurance Company in respect to an accident which have taken place prior to the insurance policy having been issued.

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Taking into the said ground of objection, this Court finds it relevant now to take note of the facts which led to the filing of the present appeal.

4. On 20.12.2018 at around 11:15 AM, one Mr. Phutukan Kalita, a minor boy while playing in the entrance of the house of his father Shri Bhunu Kalita, was hit by a tractor bearing Registration No.AS-07-AC-2078 along with its Trolly attached bearing Registration No.AS-07-AC-2079. The minor boy sustained severe injuries on his head and immediately succumbed to his injuries on the spot. On the basis of the said accident, a case was registered being Silapathar P.S. Case No.574/2018 under Sections 279, 304A of the Indian Penal Code. Thereupon, the mother of the minor boy as claimant had filed the claim proceedings which was registered and numbered as MAC Case No.05/2019. Notices were issued to the opposite parties to the said application.

5. It is relevant to take note of the written statement which was filed by the appellant Insurance Company wherein it was categorically mentioned at paragraph No.2 of the said written statement that the accident took place on 20.12.2018 and the insurance policy was for the period from 22.12.2018 to 21.12.2019 i.e. from 13.22 hours of 22.12.2018 to midnight of 21.12.2019. In that regard, the certified copy of the insurance policy was also enclosed as Annexure-A.

6. It is further seen that on the basis of the pleadings, the learned Tribunal on 11.08.2020 framed four issues which being relevant are reproduced herein under:

"1. Whether the alleged motor vehicular accident had taken place on 20.12.2018 at about 11:15 AM at Gandhinagar Road, under Silapathar Page No.# 4/8

Police Station in the district of Dhemaji, Assam due to the rash and negligent manner of driving on the part of the driver of the vehicle bearing Registration No. AS-07AC-2078 (Tractor), AS-07AC-2079 (Tolly) and in consequence of that Putukan Kalita had died.

2. Whether the vehicle bearing Registration No.AS-07AC-2078 (Tractor), AS-07AC-2079 (Tolly) was duly insured with the O.P. No.3 i.e. United India Insurance Co. Ltd. under valid insurance policy at the relevant time of accident?

3. Whether the claimant is entitled to get compensation, if so, to what extent and by whom payable?

4. To what other relief/reliefs the claimant is entitled to in law and equity?"

7. On behalf of the claimant, two witnesses were adduced and various documents were exhibited. On behalf of the opposite parties, there was no evidence adduced.

8. It is relevant to take note of that the claimant exhibited the following documents which were

Exhibit-1 - Form 54 original (Accident Information Report) Exhibit-2 - Certified copy of the FIR/Ejahar

Exhibit-3 - Post-mortem report

Exhibit-4 - Charge-sheet report

Exhibit-5 - Seizure List

Exhibit-6 - MVI Report

9. None of the witnesses were cross-examined by the opposite parties. It is relevant to take note of from the Accident Information Report exhibited as Page No.# 5/8

Exhibit-1 and more particularly what has been mentioned in Column No. 3 and 10 of the said report. From a joint reading of both the columns, it would be seen that the accident took place on 20.12.2018 at 11:15 AM and the insurance policy so issued by the appellant Insurance Company was valid from 25.12.2018 to midnight of 24.12.2019. The seizure list which has been exhibited as Exhibit-5 also shows what were the documents seized. Amongst the documents which were seized were the Insurance Certificate issued by the appellant Insurance Company which was valid from 25.12.2018 to midnight of 24.12.2019.

10. In the backdrop of the above, let this Court now take into consideration how the learned Trial Court had decided the Issue No.2.

11. At this stage, it is very pertinent to mention that though four issues were framed but the learned Tribunal did not decide the said proceedings issue wise rather framed two points for determination. Even, the learned Tribunal did not mention that in the written statement filed by the appellant Insurance Company, there was a complete denial that there was an insurance cover on the date of the accident. At paragraph No.13 of the impugned judgment, the learned Tribunal observed that the offending Tractor and Trolly at the time of the accident was duly insured with the appellant Insurance Company was not in dispute which on the face of it shows that there is a perversity.

12. This Court had taken up the instant appeal yesterday pursuant to an order passed by this Court on 27.05.2025 whereby the respondent No.2 who was the owner of the Tractor and Trolly was given an opportunity to produce any document to show that there was an insurance policy at the time when Page No.# 6/8

the accident happened. The matter accordingly was taken up on 24.06.2025. The learned counsel for the respondent No.2 submitted that he has no instructions. Accordingly, the matter was directed to be listed today.

13. From the above materials on record, it is very clear that the learned Motor Accident Claims Tribunal, Dhemaji was not at all justified in saddling the liability upon the appellant Insurance Company inasmuch as the materials on record categorically shows that on the date of the accident i.e. on 20.12.2018, the respondent No.2 who was the owner of the offending Tractor as well as the Trolly did not have any insurance policy issued by the appellant Insurance Company. This Court further takes note of that there is no challenge in the instant proceedings as regards the Issue Nos.1, 3 and 4.

14. The respondent No.2 who is the owner of the Tractor and the Trolly even having notice of the impugned judgment and award did not challenge the same.

15. Considering the above, this Court is not inclined to interfere in respect to the decision in Issue No.1 which pertains to as to whether the offending Tractor bearing Registration No.AS-07AC-2078 and its Trolly bearing Registration No.AS-07AC-2079 was driven in a rash and negligent manner which have resulted in accident which led to the death of the minor boy namely Phutukan Kalita. Further to that, this Court is not inclined to interfere in respect to the quantum so decided as the just and fair compensation in terms with Section 168 of the Act of 1988 of an amount of Rs.3,55,000/- along with interest @8% per annum from 05.03.2019 till actual payment. However, this Court interferes with the saddling of the liability by the learned Member, Motor Accident Claims Tribunal, Dhemaji upon the Insurance Page No.# 7/8

Company, opining the finding to be perverse.

16. Accordingly, this Court therefore disposes of the instant appeal with the following observations and directions:

(i) The instant appeal stands allowed to the extent that the appellant Insurance Company cannot be saddled with the liability to satisfy the judgment and award dated 28.09.2021 passed in MAC Case No.05/2019.

(ii) The respondent No.2 herein who is also the opposite party No.2 in MAC Case No.05/2019 being the owner would be liable to satisfy the award of the amount of Rs.3,55,000/- along with interest @8% per annum w.e.f.

05.03.2019 till actual payment.

(iii) This Court therefore directs the respondent No.2 herein who is the opposite party No.1 MAC Case No.05/2019 to deposit the awarded amount within a period of 6 (six) weeks from today failing which, the learned Member, Motor Accident Claims Tribunal, Dhemaji is directed to proceed for recovery of the same in accordance with law.

(iv) The statutory deposit of Rs.25,000/- be refunded by the Registry of this Court to the appellant Insurance Company upon production of a certified copy of the instant judgment.

(v) Interim order passed on 31.01.2022 in I.A.(Civil) No.172/2022 stands vacated.

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17. The Registry is directed to forthwith return the LCR to the learned Court below.

JUDGE

Comparing Assistant