Page No.# 1/8 vs Hema Pegu @ Mishong And 5 Ors
2025 Latest Caselaw 516 Gua

Gauhati High Court

Page No.# 1/8 vs Hema Pegu @ Mishong And 5 Ors on 14 May, 2025

Author: Devashis Baruah

Bench: Devashis Baruah

                                                                   Page No.# 1/8

GAHC010089252025




                                                            2025:GAU-AS:6014

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

                       Case No. : MACApp./172/2025

         SBI GENERAL INSURANCE COMPANY LIMITED
         HAVING ITS REGISTERED OFFICE AND HEAD OFFICE AT 'NATRAJ' BY
         RUSTOMJEE, 101, JUNCTION OF MV ROAD AND WESTERN EXPRESS
         HIGHWAY, ANDHERI (EAST), MUMBAI-400069, ITS REGIONAL OFFICE 4TH
         FLOOR, 'B' BLOCK, APEEJAY HOUSE, 15, PARK STREET, KOLKATA-700016,
         WEST BENGAL, AND ITS BRANCH OFFICE AT 2ND FLOOR, LAKSHMI
         DARSHAN, OPPOSITE BORA SERVICE STATION, ULUBARI, G.S. ROAD,
         GUWAHATI-781007 REP BY ITS SR EXECUTIVE LITIGATION AND TP.



         VERSUS

         HEMA PEGU @ MISHONG AND 5 ORS
         W/O. LT. MONUS MISANG @ MONOJ MISHONG

         2:UMESH MISHONG
          S/O. LT. MONUS MISANG @ MONOJ MISHONG

         3:NORESH MISHONG
          S/O. LT. MONUS MISANG @ MONOJ MISHONG
         ALL ARE R/O. MADHYA BIJOYPUR
          P/S.
          DIST. DHEMAJI
          ASSAM
          PIN-787060
         (RESPONDENT NO. 2 AND 3 BEING MINOR IS REP. BY THE RESPONDENT
         NO. 1)

         4:SUSHEE INFRA AND MINING LIMITED
         TL THONGONS BUILDING
          NITI VIHAR
          ITANAGAR
          PAPUM PARE
                                                                   Page No.# 2/8

             ARUNACHAL PRADESH
             PIN-731112
             PERMANENT ADDRESS- PLOT NO. 246/A
             MLA COLONY
             ROAD NO. 12
             BANJARA HILLS
             HYDERABAD
             TELENGANA
             PIN-500034.

             5:LEKU TACHI
              S/O. TAGING TACHI
              R/O. VILL- RILLAN
              P/O. SEPPA
              P/S. SEPPA
              DIST. EAST KAMENG (SEPPA)
             ARUNACHAL PRADESH
              PIN-790102

             6:MOHESH BORI
              S/O. KULARAM BORI
              R/O. NO. 1
              PANCHNAI UJONI
              P/O. DEJOO
              LAKHIMPUR
             ASSAM
              PIN-787031LAKHIMPUR
             ASSA

For the Appellant(s)       : Mr. T. Kalita, Advocate
For the Respondent(s)      : None appears


Date of Hearing                           : 14.05.2025
Date of Judgment                          : 14.05.2025
                                      BEFORE
                       HONOURABLE MR. JUSTICE DEVASHIS BARUAH

                              JUDGMENT AND ORDER (ORAL)

Heard Mr. T. Kalita, the learned counsel appearing on behalf of the appellant.

Page No.# 3/8

2. This is an appeal filed under Section 173 of the Motor Vehicles Act, 1988 challenging the judgment and award dated 29.01.2025 passed by the learned Member, Motor Accident Claims Tribunal No. 3, Kamrup (M) at Guwahati (hereinafter referred to as, "the learned Tribunal") in MAC Case No. 1899/2017 whereby the claimants have been awarded a total compensation of Rs. 16,92,000/- along with interest at the rate of 9% per annum from the date of filing of the claim petition.

3. Mr. T. Kalita, the learned counsel appearing on behalf of the appellant submitted that the only ground of objection so taken in the instant appeal is that the deceased was not a labourer of the tractor nor the authorized representative of the company and as he was travelling as a gratuitous passenger, the learned Tribunal could not have directed the Appellant Insurance Company to make payment of the amount so awarded and thereupon to recover the entire amount from the owner of the vehicle in due course of time. In that regard, the learned counsel appearing on behalf of the appellant has referred to the judgment of the learned Coordinate Bench of this Court in the case of Oriental Insurance Co. Ltd. Vs. Arati Chik @Sik and Others reported in (2019) 3 GLT 47.

4. Taking into account the ground of objection so taken in the instant appeal, the point for determination which arises is, as to whether, the learned Tribunal was justified in directing payment of the awarded amount to the claimants by the Appellant Insurance Company and thereupon to recover it from the owner of the vehicle.

5. This Court has duly perused the judgment of the learned Coordinate Bench Page No.# 4/8

of this Court in the case of Oriental Insurance Co. Ltd. (supra). Without going much into the said judgment, this Court finds it very relevant to take note of the judgment of the Supreme Court in the case of Manuara Khatun & Others Vs. Rajesh Kr. Singh & Others reported in (2017) 4 SCC 796 as the said judgment has

a direct bearing on the issue involved in this case. The facts in the case of Manuara Khatun (supra) was that two claim proceedings were filed by the wives

of the two deceased persons being MAC Case No. 652/2001 and MAC Case No. 653/2001 claiming compensation on account of the death of the deceased persons. The learned Tribunal taking into account that the deceased persons were gratuitous passengers, exonerated the Insurance Company and directed the payment to be made by the owner of the vehicle.

6. Being aggrieved by the said award, two appeals were filed being MAC Appeal No. 7/2009 and MAC Appeal No. 8/2009 before this Court seeking enhancement of the compensation and also for a direction that the amounts be satisfied by the Insurance Company and the Insurance Company can later on recover it from the owner of the vehicle. These appeals were dismissed by the learned Coordinate Bench of this Court vide a common judgment and order dated 22.06.2012.

7. Being aggrieved, the claimants approached the Supreme Court. The Supreme Court was seized with the specific question, as to whether, this Court was justified in not issuing directions to the Insurance Company to make the payment and then recover it from the owner. The Supreme Court in the said judgment categorically observed that this Court failed to exercise its jurisdiction in directing to make payment by the Insurance Company and then recover it from the owner of the vehicle. This aspect can be seen from a perusal of Page No.# 5/8

Paragraph Nos. 16 to 22 of the said judgment, which are reproduced herein under:

"16. R.M. Lodha, J. (as his Lordship then was and later became CJI) speaking for the Bench held in paras 20 and 26 as under: (Saju P. Paul case4, SCC pp. 52 & 55)

"20. The next question that arises for consideration is whether in the peculiar facts of this case a direction could be issued to the Insurance Company to first satisfy the awarded amount in favour of the claimant and recover the same from the owner of the vehicle (Respondent 2 herein).

26. The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur and Challa Upendra Rao should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, the claimant was 28 years old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to the stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The Insurance Company has already deposited the entire awarded amount pursuant to the order of this Court passed on 1-8-2011 [National Insurance Co. Ltd. v. Saju P. Paul11] and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent 1) may be allowed to withdraw the amount deposited by the Insurance Company before this Court along with accrued interest. The Insurance Company (the appellant) thereafter may recover the Page No.# 6/8

amount so paid from the owner (Respondent 2 herein). The recovery of the amount by the Insurance Company from the owner shall be made by following the procedure as laid down by this Court in Challa Upendra Rao."

17. The facts of the case at hand are somewhat identical to the facts of the case mentioned supra because here also we find that the deceased were found travelling as "gratuitous passengers" in the offending vehicle and it was for this reason, the insurance companies were exonerated. In Saju P. Paul case also having held that the victim was "gratuitous passenger", this Court issued directions against the insurer of the offending vehicle to first satisfy the awarded sum and then to recover the same from the insured in the same proceedings.

18. The learned counsel for Respondent 3 (United India Insurance Co. Ltd.), however, contended that the facts of the case at hand are not identical to the one involved in Saju P. Paul and hence the law laid down therein cannot be applied to the facts of the case at hand. The learned counsel pointed out that firstly, the awarded compensation in this case is quite substantial and secondly, it is not yet paid to the claimants. The learned counsel also submitted that since the question involved herein is referred to a larger Bench and hence this Court should not give such directions, as prayed by the appellants, against the insurance company.

19. We find no merit in any of the submissions. Firstly, as mentioned above, we find marked similarity in the facts of this case and the one involved in Saju P. Paul case. Secondly, merely because the compensation has not yet been paid to the claimants though the case is quite old (16 years) like the one in Saju P. Paul case, it cannot be a ground to deny the claimants the relief claimed in these appeals. Thirdly, this Court has already considered and rejected the argument Page No.# 7/8

regarding not granting of the relief of the nature claimed herein due to pendency of the reference to a larger Bench as would be clear from para 26 of the judgment in Saju P. Paul case. That apart, the learned counsel for the appellants stated at the Bar that the reference made to the larger Bench has since been disposed of by keeping the issue undecided. It is for this reason also, the argument does not survive any more.

20. It is for all these reasons, we find no good ground to take a different view than the one consistently being taken by this Court in all previous decisions, which are referred supra, in this regard.

21. In view of the foregoing discussion, we are of the view that the direction to United India Insurance Co. Ltd. (Respondent 3) -- they being the insurer of the offending vehicle which was found involved in causing accident due to negligence of its driver needs to be issued directing them (United India Insurance Co. Ltd. Respondent 3) to first pay the awarded sum to the appellants (claimants) and then to recover the paid awarded sum from the owner of the offending vehicle (Tata Sumo) Respondent 1 in execution proceedings arising in this very case as per the law laid down in para 26 of Saju P. Paul case quoted supra.

22. Accordingly, the appeals succeed and are allowed. Impugned order is modified to the extent that Respondent 3 United India Insurance Co. Ltd. is accordingly directed to pay the awarded sum to the appellants (claimants). Thereafter Respondent 3 United India Insurance Co. Ltd. would be entitled to recover the entire paid awarded sum from the owner (insured) of the offending vehicle (Tata Sumo) Respondent 1 in these very proceedings by filing execution application against the insured."

8. Taking into account the sole ground of objection so taken, it is the opinion of this Court that the learned Tribunal had not committed any error in directing payment by the Appellant Insurance Company and then to recover it from the Page No.# 8/8

owner of the vehicle. Accordingly, this Court finds no ground in the instant appeal, for which, the instant appeal stands dismissed. No Costs.

JUDGE

Comparing Assistant