Gauhati High Court
MACApp./79/2020 on 3 March, 2025
Page 1 of 12
GAHC010003632017
2025:GAU-AS:2206
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
MACAPPNo. 79/2020
The National Insurance Company
Limited Having its registered Office at
3Middleton Street, Kolkata 700071 And
Regional Office at G.S. Road,
Bhangagarh, Guwahati-5, represented
by its Regional Manager, Regional
Office, Guwahati.
.....Appellant
Versus-
1. Sri Bikash Ghosh and Anr.,
S/o-Sri Narayan Ghosh, Resident of Village-Sokial
Chowk, Ward No. 4,
P.O. and P.S.Dergaon,District- Golaghat, Assam.
2. Mukesh Agarwalla,
S/o-Late Durga Dutta Agarwalla,
Resident of A.T. Road, Dergaon,
P.O. and P.S. Dergaon,
District- Golaghat, Assam..
.....Respondents
For Appellant 1. Mrs. S. Roy, Advocate.
MACApp. No. 79 of 2020 Page1
For Respondent(s) 1. Mr.D.K. Nath, Advocate.
Date of judgment : 03.03.2025.
BEFORE
HON'BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT & ORDER (CAV)
1. Heard Mrs. S. Roy, the learned counsel for the appellant. Also
heard Mr. D.K. Nath, the learned counsel for the respondent
side.
2. This appeal under Section 173 of the Motor Vehicles Act, 1988
has been filed by the appellant/Insurance Company impugning
the judgment and award dated 21.12.2016, passed by the
learned Member, Motor Accident Claims Tribunal, Golaghat in
MAC Case No. 82/2014.
3. The facts relevant for consideration of the instant appeal, in
brief, are that on 12.12.2013, at about 9:50 P.M., the claimant
was riding a Motorcycle bearing registration No. AS-05-E/3935
from Tapan Nagar, Golaghat towards Islampatty, and while he
reached near No.1 Railway Gate, an unknown vehicle, which was
coming from opposite direction in rash and negligent manner,
MACApp. No. 79 of 2020 Page2
and in order to escape from the imminent accident from the said
unknown vehicle, he steered his Motorcycle towards the left-
hand side of the road. In that process, the Motorcycle suddenly
dashed against the back side of a stationary vehicle which was
parked at the extreme left hand side of the road. As a result, he
fell down and sustained grievous injuries on his person. After the
accident, he was taken to K.K. Civil Hospital, Golaghat and
thereafter, he was referred to Guwahati. Accordingly, he was
taken to Guwahati Medical College & Hospital, Guwahati and
treated there as indoor patient for six days from 14.12.2013 to
20.12.2013. It has been pleaded that the claimant is an
experienced driver and he possessed a valid driving licence vide
No. 98273/NTV/NW/2011, and it was valid upto 09.01.2027.
4. Thereafter, the respondent No. 1, Sri Bikash Ghosh had filed a
claim petition under Section 163A of the Motor Vehicles Act,
1988 before the Motor Accident Claims Tribunal, Golaghat,
seeking compensation on account of injury sustained by him in
the aforesaid motor vehicular accident.
5. The Insurance Company, as well as the owner of the vehicle
involved in the accident, contested the claim case by filing a
written statement.
6. Upon pleadings of the parties, the Motor Accident Claims
Tribunal, Golaghat framed the following issues:-
MACApp. No. 79 of 2020 Page3
i. Whether on 12.12.2013, at about 9'50 P.M., near
No.1 Railway Gate, Golaghat under Golaghat
Police Station, the injured/claimant drove the
Motorcycle bearing Registration No. AS-05-E/3935,
and caused the accident, and thereby, caused
injuries on his person?
ii. Whether the claimant is entitled to get
compensation on account of injuries sustained by
him as a result of the accident?
iii. If so, what would be the quantum of
compensation and payable by whom?
7. After completion of the inquiry, the Motor Accident Claims
Tribunal, Golaghat decided all the issues in favour of the
claimant and directed the Insurance Company, i.e., The National
Insurance Company Limited (the appellant) to pay an amount of
Rs. 81,544(Rupees Eighty-one Thousand Five Hundred Forty
Four) only to the claimant, along with an interest @ 9% per
annum from the date of filing of the claim petition till the
realization of the entire amount.
8. Though in the memo of appeal, several grounds are taken by the
appellant for assailing the impugned judgment. However, during
hearing of the appeal, the learned counsel for the appellant has
MACApp. No. 79 of 2020 Page4
assailed mainly the ground of maintainability of the claim petition
filed by the respondent No. 1/claimant.
9. The learned counsel for the appellant has submitted that the
claimant/respondent No. 1, was driving the motorcycle owned by
the respondent No. 2, however, the claimant has failed to plead
and prove his status while riding the offending motorcycle. The
learned counsel for the appellant has submitted that it is the
duty of the claimant to prove and establish as to what was his
status while he was riding the offending vehicle.
10. She has further submitted that as no FIR was lodged in this
case, it can be presumed that the claimant was riding the vehicle
with the consent of the owner, and in such a case, the claimant
can only be regarded as a borrower, who steps into the shoes of
the owner and not a third party, and therefore, the Insurance
Company is not liable to pay any compensation to the claimant.
11. The learned counsel for the appellant has submitted that
compensation under Section 163A of the Motor Vehicles Act,
1988, can be awarded only against the owner of the vehicle,
however, if the claimant steps into the shoes of the owner, he
cannot claim compensation against himself, i.e., the owner. She
submits that as in the instant case, the claimant has stepped into
the shoes of the real owner, he cannot be both, i.e., a claimant
as well as a recipient with respect to the claim, and therefore,
MACApp. No. 79 of 2020 Page5
she submits that the claim petition against this case is not
maintainable in terms of Section 163A of the Motor Vehicles Act,
1988.
12. In support of her submission, the learned counsel for the
appellant has cited following rulings:-
i. "RamkhiladiAnd Another Vs. United India Insurance
Company AndAnother" reported in "(2020)2 SCC
550."
ii. "Ningamma And Another Vs. United India Insurance
Company Limited" reported in "(2009) 13 SCC
710."
iii. "National Insurance Co. Ltd. Vs. Shyam Rai
Mahanta And Ors." reported in "2018 1 GauLT 132."
13. On the other hand, the learned counsel for the
respondent/claimant has submitted that the Claims Tribunal has
correctly assessed the compensation and awarded the same in
favour of the claimant and that the same does not require any
interference by this Court in this appeal. He submits that the
appellant/Insurance Company has not taken any defence of
negligence on the part of the claimant/rider of the vehicle
involved in the accident. He submits that under Section 163A of
the Motor Vehicles Act, 1988 the claimant is entitled to get
compensation as per the structured formula contained in the
MACApp. No. 79 of 2020 Page6
schedule to the Motor Vehicles Act, 1988 and no negligence is
required to be proved by the claimant in such a case.
14. The learned counsel for the respondent/claimant submits that
even though the claimant was not required to prove any
negligence on his part, it is admitted by the respondents, i.e.,
the owner of the vehicle as well as the Insurance Company, that
in this case, there was no negligence on the part of the claimant
which resulted in the accident. He submits that only
circumstances in which the claim of the claimant may be denied
is if he is found to be negligent and the burden for the same was
on the respondents, including the Insurance Company. However,
in the instant case, the said burden has not been relieved by the
Insurance Company and no negligence can be attributed to the
claimant in the happening of the accident and therefore, he is
entitled to get the compensation awarded by the learned
Member, Motor Accident Claims Tribunal, Golaghat, by way of
the impugned Judgment Award. He, therefore, prays for
dismissing the present appeal. In support of his submission, the
learned counsel for the respondent has cited a ruling of the Apex
Court in the case of "National Insurance Company Limited Vs.
Sinitha And Others" reported in "(2012)2 SCC 356."
15. I have considered the submissions made by learned counsel
for both the sides and have gone through the materials available
MACApp. No. 79 of 2020 Page7
in the record, including the records of the MAC Case No. 82
/2014, which was called for in connection with this case. I have
also gone through the rulings relied upon by the learned counsel
for both the sides in support of their submissions.
16. On perusal of the materials on record, it appears that the
respondent/claimant was driving the motorcycle bearing
Registration No. AS-05-E/3935, at the time of the accident.
However, it appears from the materials on record that the
claimant is not the owner of the said motorcycle and the owner
of the motorcycle is one Mukesh Agarwalla. There is no pleading
in the claim petition by the claimant as to in what capacity he
was driving the motorcycle. There is no material to show that the
claimant was in the employment of the owner of the motorcycle.
Thus the only conclusion which may be arrived on the basis of
materials available on record, is that, the claimant was the
permissive user or borrower of the motorcycle owned by Mukesh
Agarwalla.
17. Here, in this case, though it has been pleaded in the claim
petition that in order to save the imminent accident, which could
have happened because of a vehicle coming from the opposite
side at railway gate No. 1, in a rash and negligent manner, the
claimant had to steer his motorcycle towards left side of the road
and as a result, he dashed against the backside of a stationary
MACApp. No. 79 of 2020 Page8
vehicle. However, no claim under Section 163A has been filed
against the driver /owner/Insurance Company of the other
vehicle.
18. In the instant case, the claim has been filed against the owner
and insurance company of the vehicle which the claimant was
driving. As discussed earlier, the claimant appears to be a
permissive user or a borrower of the vehicle, which met with the
accident. He had stepped into the shoes of the owner of the
vehicle, which was involved in the accident and hence, the
claimant who has stepped into the shoes of the owner of the
vehicle, involved with the accident cannot maintain a claim case
against the owner, as it would amount to maintaining a claim
against himself.
19. In this regard, the observations made by the Apex Court in
the case of "Ramkhiladi And Another Vs. United India Insurance
Company And Another," reported in "(2020), 2 SCC 550."
"9.3. While answering the finding recorded by the
learned Tribunal on Issue 2, it appears that, as
such, the learned Tribunal has not at all answered
the aforesaid issue. While answering Issue 2, there
is no specific finding whether the deceased-driver
was in employment of the opponent-owner
Bhagwan Sahay or not. Even otherwise, no
evidence is led by the claimants to prove that the
deceased-driver was in employment of the
MACApp. No. 79 of 2020 Page9
opponent-owner Bhagwan Sahay. Despite the
above, while answering Issue 4 there is some
observation made by the learned Tribunal that the
deceased-driver was in employment of the
opponent-owner Bhagwan Sahay, which is not
supported by any evidence on record. Under the
circumstances, the deceased-driver cannot be said
to be in employment of the opponent-owner
Bhagwan Sahay and, therefore, he can be said to
be permissible user and/or borrower of motor
vehicle owned by the opponent-owner Bhagwan
Sahay. With these findings, the main question
posed for consideration of this Court referred to
hereinabove is required to be considered."
"9.4. An identical question came to be considered
by this Court in Ningamma [Ningamma v. United
India Insurance Co. Ltd., (2009) 13 SCC 710:
(2009) 5 SCC (Civ) 241 : (2010) 1 SCC (Cri) 1213] .
In that case, the deceased was driving a
motorcycle which was borrowed from its real
owner and met with an accident by dashing against
a bullock cart i.e. without involving any other
vehicle. The claim petition was filed under Section
163-A of the Act by the legal representatives of the
deceased against the real owner of the motorcycle
which was being driven by the deceased. To that,
this Court has observed and held that since the
deceased has stepped into the shoes of the owner
of the vehicle, Section 163-A of the Act cannot
MACApp. No. 79 of 2020 Page10
apply wherein the owner of the vehicle himself is
involved. Consequently, it was held that the legal
representatives of the deceased could not have
claimed the compensation under Section 163-A of
the Act. Therefore, as such, in the present case, the
claimants could have even claimed the
compensation and/or filed the claim petition under
Section 163-A of the Act against the driver, owner
and insurance company of the offending vehicle i.e.
motorcycle bearing Registration No. RJ 29 2M
9223, being a third party with respect to the
offending vehicle. However, no claim under Section
163-A was filed against the driver, owner and/or
insurance company of the motorcycle bearing
Registration No. RJ 29 2M 9223. It is an admitted
position that the claim under Section 163-A of the
Act was only against the owner and the insurance
company of the motorcycle bearing Registration
No. RJ 02 SA 7811 which was borrowed by the
deceased from the opponent-owner Bhagwan
Sahay. Therefore, applying the law laid down by
this Court in Ningamma [Ningamma v. United India
Insurance Co. Ltd., (2009) 13 SCC 710 : (2009) 5
SCC (Civ) 241 : (2010) 1 SCC (Cri) 1213] , and as
the deceased has stepped into the shoes of the
owner of the vehicle bearing Registration No. RJ 02
SA 7811, as rightly held by the High Court, the
claim petition under Section 163-A of the Act
against the owner and insurance company of the
MACApp. No. 79 of 2020 Page11
vehicle bearing Registration No. RJ 02 SA 7811
shall not be maintainable."
20. In the instant case also, as the claimant had stepped into the
shoes of the owner of the motorcycle bearing Registration No.
AS-05-E/3935, a claim case under Section 163A of the Motor
Vehicles Act, 1988 is not maintainable against the owner himself
as well as the Insurance Company of the said vehicle in light of
the aforesaid rulings of the Apex Court.
21. This appeal, is therefore, allowed and the impugned judgment
and awards passed by the learned Member, Motor Accident
Claims Tribunal, Golaghat in MAC Case No. 82/2014 is hereby set
aside.
JUDGE
Comparing Assistant
MACApp. No. 79 of 2020 Page12
