National Insurance Co. Ltd vs On The Death Of Haidar Ali His Legal Heirs ...
2025 Latest Caselaw 578 Gua

Gauhati High Court

National Insurance Co. Ltd vs On The Death Of Haidar Ali His Legal Heirs ... on 15 May, 2025

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GAHC010128662013




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

                              Case No. : MACApp./45/2013

            NATIONAL INSURANCE CO. LTD.
            HAVING ITS REGISTERED OFFICE AT MIDDLETON STREET AT KOLKATA
            AND ITS REGIONAL OFFICE AT G.S. ROAD, BHANGAGARH, GHY-5



            VERSUS

            ON THE DEATH OF HAIDAR ALI HIS LEGAL HEIRS RABIYA BIBI and 6 ORS
            W/O LT. HAIDAR ALI AZIZUL HAQUE S/O LT. HAIDAR ALI RIAZUL HAQUE
            S/O LT. HAIDAR ALI SAFIQUL HAQUE S/O LT. HAIDAR ALI EKRAMUL
            HAQUE S/O LT. HAIDAR ALI ALL ARE R/O VILL. CHAGOLIA, PT-II, P.O.
            CHAGOLIA, DIST. DHUBRI, ASSAM.

            2:HIMMAT SINGKA
             MOTOR WORKS LTD. CHATRIBARI
            A.T. ROAD
             GUWAHATI

Advocate for the Petitioner   : MR.R BARUAH, MRS.B DAS,MR.G BAISHYA,MS.D KOUR

Advocate for the Respondent : MR.A GANGULY, MR.M HUSSAIN,MR.A A KHAN,MR.B
DAS,MR.M U MONDAL




                                  BEFORE
               HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND

                                       JUDGMENT

Date : 15-05-2025

Heard learned counsel Mr. G. Baishya for the appellant and learned Page No.# 2/10

counsel Mr. M.U. Mondal for the respondents.

2. This appeal is directed against the judgment and order dated 22.07.2008 passed by the learned Member, MACT at Dhubri in connection with MAC Case No. 112/2002. The appellant in this case is the Insurer i.e. the National Insurance Company Limited. The respondent in this case was the claimant Md. Haidar Ali and after his death, he has been substituted by his legal heirs Rabiya Bibi, Azizul Hoque, Riazul Hoque, Safikul Hoque and Ekramul Hoque, being wife and sons of the respondent No. 1 Haidar Ali.

3. The genesis of this case was that on 21.01.2002 at about 10.00 AM at National Highway No. 31 at Chhaagalia under Golakganj Police Station, District - Dhubri, Rafiqul Ali was mowed down by a truck bearing registration No. AS-01- 5186, which was proceeding from the side of Chhaagalia Check Post. The owner of the truck was Himmatsingka Motor Works Limited at Chatrtibari and driver was Sri Hamraj Bhatowal, who were arrayed as respondent Nos. 2 and 3 respectively. However, vide order dated 17.05.2024, the name of respondent No. 3 was struck off from the array of respondents.

4. It is alleged that the truck skirted off and dashed against the motorcycle of the deceased which was proceeding towards Baibazar, resulting in the death of the deceased Late Rafiqul Ali.

5. MAC Case No. 112/2002 was filed by the father of the deceased claiming an amount of Rs.5,00,000/- (Rupees Five Lacs) as compensation. It is submitted that at the time of filing the claim petition, the claimant/respondent No. 1 was not aware if the vehicle was insured. It is submitted that the driver, insurer, and the owner were arrayed as respondent/opposite party Nos. 1, 2 and 3 and notices were issued to the opposite parties. However, the opposite party No. 2 i.e. the Insurer contested the proceeding and filed written statement whereas Page No.# 3/10

the driver and the owner of the offending vehicle did not contest the proceeding and this case proceeded ex-parte against them.

6. The vehicle No. AS-01-5186 will hereinafter be referred to as offending vehicle.

7. It is averred that the report of the Investigating Officer, who seized the insurance certificate of the offending vehicle reveals that the insurance and the policy of the vehicle was valid up to 01.01.2003 by insurance policy covered by Insurance Cover No. 062270 and the Divisional Branch Code was 200100. The witness on behalf of the Insurer deposed that the Branch Officer at Dhubri sent a letter for the relevant papers for confirmation and on compliance of Section

64.V.B.of the Insurance Act.

8. In reply, the Divisional Office-1 at Guwahati of the National Insurance Company sent a letter to the Branch Office at Dhubri stating that the policy number mentioned in the claim petition does not belong to the Divisional Office- 1 of Guwahati Division. Two DWS also stated through the evidence that the policy does not belong to the National Insurance Company and thus, the company is not liable to pay the compensation.

9. It is contended that the learned Member without considering the fact that the policy number mentioned in the claim petition has no relation to any policy of the Insurer, erroneously awarded an amount of Rs.2,30,000/- (Rupees Two Lacs Thirty Thousand) to be paid to the claimant by the Insurer vide order dated 22.07.2008. It was further contented that the learned Member failed to adjudicate on the plea of the appellant/Insurer that the alleged offending vehicle was not insured with the appellant company.

10. The judgment has been impugned by the appellant on the ground that there is not even a whisper in the judgment relating to the rash and negligent Page No.# 4/10

driving of the truck i.e. the offending vehicle and no liability has been attributed to the owner of the offending vehicle. The award has been erroneously passed against the Insurer/appellant.

11. It is further contented that a wrong multiplier was adopted for calculating the compensation.

12. In his cross examination PW-1 Haider Ali admitted that his age was 60/65 years and his wife was 50/55 years old and the average age of both the husband and the wife would reveal that the multiplier ought to have been around 5-7 whereas the Tribunal has calculated the compensation taking the multiplier to be 13 under Section 163A of M.V. Act. It is submitted that the findings of the learned Trial is bad in law and is liable to be set aside.

13. It is submitted on behalf of the respondent that a well-reasoned order has been passed by the learned member, MACT and the order and award is fit to be upheld.

14. To decide the case in its proper perspective, the claim petition along with the evidence and the written statement filed by the appellant in connection with MACT case No. 112/2002 is to be taken into account. The genesis of the case was that on 21.01.2002, at about 10 a.m., on 31 National Highway, Rafiqul Ali, son of Haidar Ali- claimant (hereinafter also referred to as the deceased or victim) was proceeding to ByBazaar on his motorcycle through the NH-31. At Chhagalia area, he was mowed down by a truck bearing registration No. AS- 01- 5186, which was approaching from Chhagalia check post in a very rash and negligent manner. As the deceased died on the spot, his body was taken to Dhubri Civil Hospital for autopsy. The deceased was the sole breadwinner of his family and he was taking care of his parents and minor siblings. At the time of Page No.# 5/10

the incident, the deceased had a monthly income of Rs. 5,000/-. A claim petition was filed by Haider Ali who after his death has been substituted by his legal heirs who are the respondents herein. The claimant initially claimed for a compensation of Rs. 5 lacs on account of the death of Rafiqul Ali. It is also pertinent to mention that after the incident, a Golakganj P.S. case No. 10/2002 under Sections 279/304(A)/427 of the Indian Penal Code (IPC for short) was registered in connection with the accident.

15. The appellant of this present case i.e., the National Insurance Company filed W.S. contending interalia that the claim has been inflated and excessive without any justification. The rash and negligent act of the driver of the offending vehicle has been denied by the appellant. The appellant has also not admitted its liability to pay the compensation through the W.S. as respondent of the MACT case No. 112/2002.

16. It is pertinent to mention that the driver and the owner of the offending vehicle did not contest the proceeding. To substantiate its stance, the claimant adduced the evidence of two witnesses including himself whereas, the Development Officer of the insurer adduced his evidence on behalf of the insurer. Some documents were also exhibited by both the parties to substantiate their stance. The following issues were framed by the learned member, MACT:-

a) whether the accident took place due to rash and negligent driving of the vehicle No.AS-01/5186 and the claimant sustained injuries due to the accident ?

b) whether the offending vehicle was duly insured with M/s. National Insurance Co. Ltd ?

c) what shall be the just and proper compensation and by whom payable ?

d) Whether the claimant is entitled to get the relief as prayed for ?

17. It has been held by the Page No.# 6/10

learned Member that a criminal case was registered against the driver of the offending vehicle and the claimant side has produced police report, seizure list, post-mortem report and charge sheet of the criminal case which shows that the driver i.e., the respondent No. 1 was charge sheeted.

18. It was also observed by the learned Tribunal that during the course of investigation, the Investigating Officer seized the insurance certificate of the insurer relating to insurance of truck number AS-01-5186 which was valid up to 09.03.2003.

However, it has been erroneously held by the learned Trial Court that the vehicle was insured by Himmat Singka Motorworks Limited as Himmat Singka Motorworks Limited is the owner of the vehicle and not the insurer. It was also held by the learned Tribunal that DW-1 has categorically stated that the code number 200100 belongs to the Divisional Office No. 1, Guwahati, and accordingly the branch of Dhubri wrote a letter supplying all the relevant papers to let the Dhubri branch confirm the policy mentioned in the claim petition. The letter is addressed to Guwahati-1 marked as Exhibit-A and in reply, the Divisional Office of the National Insurance Company sent a letter to the Divisional Office, Dhubri stating that the policy does not belong to the Divisional Office No. 1, Guwahati region. The letter addressed to the branch Office of Dhubri has been marked as Exhibit-B and the relevant portion of the letter has been marked as Exhibit-B(1).

19. On perusal of the documents it was held by the learned Member, MACT that the Branch Office at Guwahati did not address any letter to the Branch Office, Dhubri as the letter which was sent to Guwahati for a report has been returned back with an endorsement of an unknown person stating that this policy does not belong to Divisional Office-1. It was also held that DW-1 did not Page No.# 7/10

produce his identity card or any authority letter from the authority concerned and the learned Tribunal has accepted the insurance policy papers seized in connection with the criminal case which clearly reflects that the policy was valid up to 09.01.2003, and the accident occurred on 21.01.2002, which implies that the vehicle was covered by the aforementioned insurance policy.

20. I have considered the submissions at the Bar with circumspection. I have also scrutinized the evidence. The evidence clearly reflects that the documents of the criminal case are certified copies and are marked as Exhibit-II, Exhibit-III, Exhibit-IV and Exhibit-V. Exhibit-V is the charge-sheet which clearly depicts that charge-sheet has been submitted against the driver of the offending vehicle under Sections 279/304(A)/427 of the IPC. Exhibit-IV is the seizure list which clearly depicts that the vehicle bearing registration number AS-01-5186 was insured by Himmat Singka under insurance cover number 062270 with the Divisional branch code No. 200100. Exhibit-IV i.e., the seizure list depicts that one insurance certificate of National Insurance Company Limited of Guwahati Division valid up to 09.01.2003 of truck number AS-01-5186 insured by the owner Himmat Singka has been seized in connection with this case.

21. It is true that the policy was valid at the time of the incident. DW-1, Biswajit Barua, Development Officer of National Insurance Company has deposed that although it is mentioned in the claim petition that code number 200100 belongs to the Divisional Office-1, Guwahati, yet the policy mentioned in the claim petition does not belong to the Divisional Office-1 of the Guwahati region. To substantiate this evidence, DW-1/OP No. 1, Biswajit Barua has stated through his evidence in affidavit that the branch Office at Dhubri had returned the letter along with all the relevant papers i.e. summons, notice etc., for affirmation of the policy mentioned in the claim petition in compliance of Section Page No.# 8/10

64(V)(B) and the letter was addressed to Divisional Office-1 at Guwahati and is marked as Exhibit-A. It is further stated through the evidence that the Divisional Office at Guwahati, National Insurance Company Limited sent a letter to Divisional Office-1 at Dhubri informing that the policy number mentioned in the claim petition does not belong to Divisional Office of Guwahati region. This letter is marked as Exhibit-B and part of the information relating to the insurance is marked as Exhibit-B(1).

22. I have also scrutinized Exhibit-A and Exhibit-B(1). The report is forwarded with a signature without the seal as signed on 05.11.2003. The DW-1/OP No. 1 has not identified the signature which renders the report as doubtful.

23. It is also apt to mention at this juncture that the entire letter was forwarded by the Divisional Office-1 Guwahati on 25.02.2003, whereas the report is dated 05.11.2003 implying that the report was submitted after 10 months, that too without any proper seal and signature of the Reporting Officer. Thus, on the touchstone of preponderance of probability, it can be held that the policy was valid at the time of the accident. The DW-1/OP No.1's evidence does not negate the fact that the vehicle was insured at the time of the accident. Moreover, this evidence is a departure from the pleadings. There is not a whisper in the pleadings that the policy was not insured at the time of the incident and code No. 200100 does not belong to the Guwahati Division. A cryptic report with the seal of the authority cannot be accepted as evidence. Moreover, the DW-1 did not identify the signature or prove the cryptic report.

24. Relating to the argument submitted by the appellant that no rash and negligent Act has been mentioned in the claim petition, it can be safely held that the claim petition clearly describes the rash and negligent Act of the driver Page No.# 9/10

of the vehicle. The pleadings of the claimant has been supported by his evidence. The claimant as PW-1 was cross-examined in extenso but the rash and negligent act was not disputed. The claimant was not cross-examined relating to rash and negligent act. The fact that a criminal case was filed against the driver of the vehicle has been substantiated by the evidence of PW-2 Golapuddin Bepari, who stated through his evidence-in-chief that the claimant lodged an FIR with the police, Chhagalia Outpost and a Golakganj P.S. Case 10/2002 under Sections 379/304(A)/427 of the IPC was registered. The cross- examination of the witnesses was basically relating to the income of the deceased.

25. Relating to the multiplier, the incident occurred in the year 2002, whereas, PW-1 was cross-examined on 02.11.2006, when he admitted that he was around 62-65 years old as on 02.11.2006 and his wife was around 52-55 years old as on same date i.e., 02.11.2006. Thus, the multiplier taken for calculation of loss of dependency as 13 was appropriate. It can be deduced that at the time of the incident, the claimant's age was around 56-61 years whereas, his wife's age was around 46-51 years.

26. The argument of the learned counsel for the petitioner that the multiplier should be 5-7 as the average age of the parents of the deceased has to be taken into consideration holds no water.

It has been categorically held by the learned Member, MACT, that the multiplier ought to be 13 as the deceased was unmarried at the time of the incident. Although the income of the deceased was submitted to be Rs. 5000/- per month, yet the learned Member, MACT, has calculated the compensation by considering the notional income of Rs. 2000/- as no income certificate was submitted in support of the income of the deceased.

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27. It is thereby held that this Court finds no error in calculation of the compensation awarded to the legal heirs of the claimant. The accident took place on 21.01.2002 and the order of award was passed on 22.07.2008. The award does not appear to be an exorbitant amount. Rather, the claimant who has passed away has been highly prejudiced owing to the delay in payment of the compensation.

28. In the wake of the foregoing discussions, it is held that the decision of the learned Member, MACT is not required to be interfered with. This court is hesitant to interfere with the decision of the learned Member, MACT.

29. Appeal is hereby dismissed as appeal is devoid of merits. The Order dated 22.07.2008 in connection with MAC Case No. 112/2002, passed by learned Member MACT, Dhubri is upheld.

30. Send back the Trial Court Records.

JUDGE

Comparing Assistant