Gauhati High Court
Page No.# 1/7 vs Abdul Barek And 6 Ors on 29 May, 2025
Page No.# 1/7
GAHC010219202021
2025:GAU-AS:6935
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp./349/2021
SRI GAKUL CHANDRA DAS
S/O- SRI RAMANIKANT DAS, R/O- H/NO. 9/A, JAPORIGOG,
LAKHIMINAGAR, NEAR LAKHI MONTESWARI SCHOOL, P.S. DISPUR,
DIST.- KAMRUP(M), ASSAM, PIN- 781005.
VERSUS
ABDUL BAREK AND 6 ORS.
S/O- LATE ARAN ALI.
2:ANOWARA KHATUN
W/O- ABDUL BAREK
3:MD. JAHIDUL ISLAM
S/O- ABDUL BAREK
4:MD. MOYNAL HOQUE
(OPPOSITE PARTIES NO. 4 BEING MINOR IS REP. BY HIS FATHER I.E.
OPPOSITE PARTIES NO. 1).
5:NILIMA KHATUN
D/O- DECEASED LATE ATOWAR RAHMAN
ALL ARE RESIDENT OF VILL.- MOWAMARAI
P.O. RAMAPARA PAM
P.S. ALOPATI CHAR (BAGHBOR)
DIST.- BARPETA
ASSAM
PIN- 781308.
6:MOFIDA KHATUN
W/O- ALEK CHAN AHMED
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R/O- VILL.- PAHARPUR
KATOLI
P.O. HABIDONGRA
P.S. BAGHBOR
DIST.- BARPETA
ASSAM
PIN- 781308.
7:HDFC ERGO GENERAL INSURANCE CO. LTD.
REP. BY THE GENERAL MANAGER
UPPER GROUND FLOOR
MAYUR GARDEN
ABC BUS STOP
G.S. ROAD
BHANGAGARH
GUWAHATI
DIST.- KAMRUP(M)
ASSAM
PIN- 781005
Advocate for the Petitioner : G UDDIN, MS. P A TALUKDAR,MR. D K RAJAK,MR N Y
KONYAK
Advocate for the Respondent : MR A RASHID, MS R DEVI,MS. M R DEVI (r.1-6),MR. A ROSHID
(r.1-6)
Date of hearing : 08.05.2025.
Date of Judgment : 29.05.2025.
BEFORE
HONOURABLE MR. JUSTICE BUDI HABUNG
:: Judgment and Order ::
[CAV]
Heard D. K. Rajak, learned counsel for the appellant. I have also
heard Mr. K. K. Bhatta, learned counsel for the respondent no. 7/ HDFC
Ergo General Insurance Company Limited and Mr. A. Roshid, learned
counsel appearing on behalf of the respondents/claimants nos. 1 to 6.
2. This appeal has been directed against the judgment dated
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08.02.2018, passed by the Member of the Motor Accident Claims
Tribunal-2, Kamrup (M), Guwahati, in MAC Case No. 2565/2009. By the
said judgment, the learned Tribunal awarded a compensation of Rs.
3,93,500/- for the death of the deceased in the motor accident and
directed the owner of the offending vehicle to pay the awarded amount
to the claimant within three months from the date of the judgment,
with an interest of 6% per annum from 01.11.2017. In the event of
failure to make the payment within the stipulated time, the
compensation amount shall bear interest at the rate of 7% per annum
from the date of filing the claim petition.
3. It is to be noted that, at the outset, the learned counsel for the
appellant clarified that the facts of the case and the quantum of
compensation awarded by the Tribunal in the impugned judgment are
not under challenge. The only issue challenged in this appeal pertains
to the liability fixed upon the owner of the vehicle/appellant for
payment of the compensation, specifically on the question of "who is
liable to pay the compensation to the claimant," as decided in issue no.
2 of the judgment.
4. It is submitted that at the time of the accident, the offending
vehicle, bearing registration no. ML-09-6618 (Indica car), owned by the
opposite party no. 1 (the appellant), was duly insured under a policy
issued by the opposite party no. 2 (respondent no. 7), HDFC ERGO
General Insurance Company Limited. The insurance coverage was
under a sum assured package policy covering third-party liabilities,
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including those of the owner and driver. The policy was valid from
16.02.2009 until midnight of 15.02.2010. Since the accident occurred
on 12.07.2009, the insurance policy of the offending vehicle was valid
and in force at that time. The insurance policy No. VP00359057000101
was produced and exhibited before the Tribunal as Exhibit-A by DW-1.
5. However, in his evidence, DW-1, Shri Salyan Sengupa, Assistant
Manager of HDFC ERGO General Insurance Company Limited, admitted
that at the time of the accident, the vehicle was insured under the said
policy. He further deposed that, according to the policy, it covered
third-party risks but did not include coverage for the owner, driver, or
passengers of the vehicle. Consequently, DW-1 stated that the
insurance company was not liable to pay compensation to the
claimants for the death of the deceased, who was the driver of the
vehicle at the time of the accident. Based on this deposition, the
Tribunal observed that there was no coverage for the owner, driver, or
other travellers of the vehicle, and therefore, held that the claimants
were not entitled to compensation from the insurance company. As a
result, the Tribunal held the owner of the vehicle/appellant liable to
pay the compensation, reasoning that the insurance company was not
liable to indemnify the owner.
6. The appellant's counsel contends that this finding was incorrect,
leading to an erroneous determination of liability, and that the owner
of the vehicle has been wrongly held responsible for the payment of
the awarded compensation. This forms the basis of the present appeal.
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7. It is pertinent to state that the issue in this appeal is limited to
determining who is liable to pay the compensation to the claimant.
During the hearing, the question arose whether the insurance policy
No. VP00359057000101, registered in the name of the appellant, Shri
Gakul Chandra Das, is a comprehensive or package policy. Accordingly,
this Court, by an order dated 22.04.2025, requested Mr. K. K. Bhatta,
learned counsel for the respondent insurance company, to obtain
necessary instructions regarding the policy coverage and to clarify
whether the driver would be covered under the policy.
8. In compliance, Mr. Bhatta informed the Court that the insurance
policy in question is a package policy covering third-party liability,
including the liability of the owner and driver. He further stated that
since the vehicle bearing registration no. ML-09-6618 was insured
under this policy at the time of the accident, the liability for the
compensation may now be shifted to the insurance company, which is
willing to pay.
9. From the record, it is clear that although the insurance policy No.
VE00359057000101, registered in the name of the appellant, covers a
package policy including third-party liability, the Tribunal's incorrect
finding was based on the evidence of DW-1, who stated that the policy
did not cover the owner, driver, or passengers. The appellant has now
clarified that the policy is a package policy covering liability of the
owner and driver. The insurance company has also accepted this
correction and expressed its willingness to pay the liability. Therefore,
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it is just and proper to shift the liability from the owner to the
insurance company.
10. Considering these facts and the admission by the insurance
company that the policy is a package policy covering third-party
liability, including the owner and driver, and that the policy was valid at
the time of the accident, this appeal succeeds. Accordingly, the liability
is shifted from the owner of the offending vehicle to the insurance
company.
11. Consequently, HDFC ERGO General Insurance Company Limited
is directed to pay the awarded compensation of Rs. 3,93,500/- (Rupees
three lakh ninety-three thousand five hundred) to the claimant, with
interest at 6% per annum from the date of filing the claim petition until
realization, in accordance with the judgment and order dated
08.02.2018 passed by the learned Tribunal. The payment shall be
made within 60 days from the date of receipt of this order.
12. The appeal is allowed to the extent indicated above, and the
judgment and award of the Tribunal dated 08.02.2018 is modified
accordingly.
13. With these observations, the appeal is disposed of.
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14. The record, if any, may be sent back.
JUDGE
Comparing Assistant
