Page No.# 1/6 vs Rimala Medhi And Anr
2025 Latest Caselaw 5127 Gua

Gauhati High Court

Page No.# 1/6 vs Rimala Medhi And Anr on 30 May, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                           Page No.# 1/6

GAHC010119922017




                                                                     2025:GAU-AS:6984

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

                         Case No. : MACApp./3/2017

         ORIENTAL INSURANCE CO LTD
         HAVING ITS REGISTERED OFFICE AT ORIENTAL HOUSE, A 25/27 ASAF ALI
         ROAD, NEW DELHI-110002 AND REGIONAL OFFICE AT GUWAHATI-7
         REPRESENTED BY THE REGIONAL MANAGER

         VERSUS

         RIMALA MEDHI and ANR
         W/O LATE BHABEN CH. MEDHI, R/O VILL. SUPARIGURI, P.O. and P.S. BIJNI,
         DIST. CHIRANG, ASSAM.

         2:MRS. NALINI RAY

          W/O SRI PRANESWAR RAY
          R/O VILL. FAGUNAGAON PART-II
          P.O. FAGUNAGAON
          P.S.BIJNI
          DIST. CHIRANG
          ASSAM



                   For the Appellant(s)   : Mr. S. Dutta, Advocate

                   For the Respondent(s) : None appears.



                    Date of Hearing       :   30.05.2025

                    Date of Judgment      :   30.05.2025
                                                               Page No.# 2/6


                              BEFORE
               HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                      JUDGMENT AND ORDER (ORAL)

Heard Mr. S. Dutta, the learned counsel appearing on behalf of the appellant Insurance Company. None appears on behalf of the respondents on call.

2. The instant appeal is filed under Section 173 of the Motor Vehicles Act, 1988 (for short 'the Act of 1988') against the judgment and award dated 29.05.2012 passed by the learned Member, Motor Accident Claims Tribunal, (FTC) Bongaigaon in MAC Case No.178/2006.

3. The ground of objection so taken in the present memo of appeal is that the deceased was a gratuitous passenger. It is relevant to take note of that along with the claim proceedings, there were 5 (five) other claim proceedings have been filed wherein also similar awards were being passed by the learned Member, Motor Accident Claims Tribunal, (FTC) Bongaigaon, holding inter alia that the passengers in the ill-fated vehicle were not gratuitous passengers. It is further seen that there against, the appellant Insurance Company have filed 4 (four) appeals before this Court which were registered and numbered as MACApp.

Page No.# 3/6

No.265/2010, MACApp. No.260/2010, MACApp. No.20/2010 and MACApp. No. 3/2014.

4. This Court vide a common judgment and order dated 23.05.2018 disposed of MACApp. No.265/2010, MACApp. No.260/2010 and MACApp. No.20/2010 holding inter alia that the evidence which was produced by the appellant Insurance Company was not sufficient to come to a finding that the passengers were the gratuitous passengers. Paragraph Nos. 11, 12 and 13 of the said common judgment and order dated 23.05.2018 being relevant are reproduced herein under:

"11. What therefore transpires from the evidence is that, the vehicle was used by the deceased person along with the owner of the vehicle himself and the son of the vehicle was on the wheel. Admittedly all of them were going to settle the date of marriage. All the witnesses examined by the tribunal categorically stated that the vehicle was not hired. However, some of them stated that Rs.800/- was paid for purchasing fuel. It is also reflected in the judgment that another witness in MAC Case No.136/2005, also stated that the owner of the vehicle allowed the vehicle to be used for domestic purpose without any hiring charge. When admittedly the vehicle was used by the deceased along with others including the owner of the vehicle for purpose of going to settle marriage and when there was positive and candid evidence that vehicle was not hired nor any fare was given to the owner, mere providing the fuel can by no stretch of imagination be considered as hiring the vehicle. As per oxford dictionary the word 'hire' means obtain temporary use of something in return for payment. In the present case, the vehicle was used by the owner himself along with others for some personal family Page No.# 4/6

function and cost of fuel was borne by someone among the occupants and nothing was paid to the owner as pecuniary benefit for using the vehicle. Thus from the above evidence, it is difficult to hold that the vehicle was given on hire. In view of the above evidence, it can by no stretch of imagination, be held that the vehicle was given on hire by the insured/owner for pecuniary benefit. When all the witnesses stated categorically that the vehicle was not hired and the Insurance Company wants to avoid the liability, on the ground of violation of condition of policy, that the vehicle was hired, the burden necessarily lied with the Insurance Company to prove, that the vehicle was indeed given on hire for some pecuniary benefit. Apparently, the insurance company failed to adduce any legal evidence to establish, that vehicle was given on hire by the insured for any pecuniary benefit. On the contrary, the claimant adduced sufficient evidence showing that the vehicle was not used on hire against any pecuniary or other benefit to the owner.

12. When there is no legal evidence brought on record to show that the vehicle was given on hire, and all the evidence brought on record indicated that the vehicle was not given on hire and the owner of the vehicle himself along with his son and others were travelling in the vehicle, for a family function, the feeble attempt of the insurance company to avoid the liability under the policy on the pretext of violation of the policy condition appears to have fallen flat. In view of the above evidence and materials, finding of the learned tribunal that there was violation of the policy condition was perverse and against the weight of evidence. Therefore, I am unable to persuade myself to concur with the submission of the learned counsel for the Insurance Company that the vehicle was given on hire at the time of accident. Accordingly, the first limb of the question formulated herein above, is answered in negative and against the appellant. Admittedly the vehicle was insured with the appellant and as such, the insurance company is bound by the policy to satisfy the award. The plea of the insurance company with regard to violation of the condition of policy having remained unsubstantiated, there is no question of recovery from the owner and as such, the order of the tribunal giving Page No.# 5/6

liberty to the Insurance Company (appellant) to recover the amount of compensation from the owner was erroneous and not sustainable.

13. Since there was no violation of condition of policy, the Insurance Company was exclusively liable to indemnify the insured and satisfy the award. Thus with the findings and observations made above, all the three appeals stand dismissed."

5. This Court further finds it relevant to take note of another judgment and order passed by the learned Coordinate Bench of this Court dated 22.09.2022 passed in MACApp. No.3/2014. The said appeal was also dismissed holding inter alia that there was no violation of the conditions of the policy and hence the appellant Insurance Company was exclusively liable to indemnify the insurer and satisfy the award.

6. Taking into account the observations and findings made by the learned Coordinate Benches in the above two judgments and orders and the ground of objection so taken is the same in the present appeal, this Court is also of the view that there was no violation of the terms and conditions of the insurance policy and accordingly, the learned Tribunal was justified in saddling the entire liability upon the appellant Insurance Company.

7. Accordingly, the instant appeal also stands dismissed.

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8. This Court further directs the appellant Insurance Company to deposit the amount as directed by the learned Tribunal in MAC Case No.178/2006 i.e. an amount of Rs.2,20,850/- along with interest from the date of filing of the claim proceedings before the learned Tribunal within 6 (six) weeks from the date of the present order.

9. It is further observed that if any deposit has been made in the meantime, the same be adjusted accordingly.

10. This Court further observes that upon deposit being made before the learned Tribunal and the same being duly noted by way of an order passed by the learned Tribunal and being produced before the Registry of this Court, the appellant Insurance Company herein would be entitled to the statutory deposit.

JUDGE

Comparing Assistant