Gauhati High Court
MACApp./426/2018 on 22 October, 2025
GAHC010093822018
THE GAUHATI HIGH COURT AT GUWAHATI
(The High Court of Assam, Nagaland, Mizoram and Arunachal Pradesh)
Principal Seat at Guwahati
MAC Appeal No. 426/2018
United India Insurance Company Limited,
Having its registered office and head office at 24 Whites Road, Chennai,
And its regional office at G.S. Road, Guwahati.
...... Appellant
-Versus-
1. Mustt. Sahida Bibi.,
W/o Hasen Ali,
R/o Gosaidubi, Hindupara,
P.S. Lakhipur, Dist. - Goalpara, Assam
PIN - 783129.
2. Md. Nazmul Hoque.
S/o Surat Zamal
R/o Vill.- Kantapur, P.S. Lakhipur
Dist. Goalpara, Assam
Pin 783129 (owner of auto rickshaw)
3. Md. Abdur Rahman Mondal
S/o Nurul Islam, R/o Vill. Madhaya Simulbari
P.S. Lakhipur, Dist. Goalpara
Assam, Pin -783129 (driver of auto rickshaw)
Page 1 of 23
...... Respondents
BEFORE
HON'BLE MR. JUSTICE ROBIN PHUKAN
Advocate for the appellant :- Mr. R. Goswami.
Advocate for the respondent No.1 :- Mr. A. Hussain.
Advocate for the respondent No.2 :- Mr. S.U. Ahmed.
Date of Hearing :- 16.10.2025.
Date of Judgment & Order :- 22.10.2025.
JUDGEMENT & ORDER (CAV)
Heard Mr. R. Goswami, learned counsel for the appellant. Also heard
Mr. A. Hussain, learned counsel for the respondent No.1 and Mr. S.U.
Ahmed, learned counsel for the respondent No.2.
2. In this appeal, under Section 173 of the Motor Vehicles Act, 1988
(MV Act hereinafter), the appellant has put to challenge the
correctness or otherwise of the Judgment and Award dated
11.07.2017, passed by the learned Member MACT, Goalpara, in MAC
Case No. 151/2012, filed under Section 166 of the M.V. Act.
3. It is to be noted here that vide impugned Judgment and Award
dated 11.07.2017, the learned Member MACT, Goalpara (Tribunal
hereinafter) has directed the appellant to pay a sum of Rs.1,10,600.00
Page 2 of 23
(Rupees one lakh ten thousand and six hundred only) as compensation
to the claimant with interest @ 6% p.a. from the date of 6.9.2016, the
date of cross-examination of claimant witness no.1, till payment.
Background Facts:-
4. The background facts, leading to filing of the present appeal, are
adumbrated herein below:-
"On 16.9.2010, at about 1-30 P.M., the claimant Mustt.
Sahida Bibi was coming from Gosaidubi towards Lakhipur on
a vehicle, bearing registration No-AS-18-C-1656 (Auto
Rickshaw). The driver of the vehicle was driving the same in
a high speed and also in a rash and negligent manner and
when the vehicle reached at Gosaidubi Hindu Para, at that
time, the claimant fell down from the vehicle on the road and
the wheel of the vehicle ran over her left leg. As a result, she
had sustained grievous injuries upon her left leg and other
parts of her body. Soon after the accident, the local people
had taken her to Lakhipur PHC and from there she was
referred to Goalpara Civil Hospital, where she had undergone
treatment. From Goalpara Civil Hospital, she was taken to
Florence Hospital, Goalpara where she also underwent
treatment.
The appellant herein, as Opp. Party no-1, contested the
case by filing written statement. The Opp. Party No. 2 and 3,
the owner and the driver of the offending vehicle
respectively, had filed their joint written statement in the
case
The appellant herein in its W.S, besides denying all the
averments made in the claim petition, stated that the
compensation claimed by the claimant side is excessive,
exaggerated and having no real basis. The appellant had also
stated that it has no knowledge about the accident and put
the claimant side in strict proof of the same and that it is not
liable to pay any compensation until and unless it is proved
that the driver of the offending vehicle, had the valid driving
licence and the conditions of the insurance policy were not
violated by the insured.
The respondent No. 2 and 3, the owner and the driver
of the offending vehicle respectively, in their joint written
statement admitted the alleged accident, but, stated that, at
the time of accident, there was no rash and negligent driving
of the offending vehicle by the respondent No.3. The
accident had taken place as it was beyond the control of
respondent No.3. It is further stated that, at the time of
accident, the offending vehicle was duly insured with the
present appellant i.e. United India Insurance Co. Ltd. and the
respondent No.3, the driver of the offending vehicle, had the
valid driving licence and therefore, in case of any liability,
would have to be borne by the appellant/ United India
Insurance Co. Ltd., the insurer of the offending vehicle.
Upon the pleadings of both sides, the learned Tribunal
had formulated following points for determination:-
(I) Whether the claimant Mustt. Sahida Bibi
sustained injuries in the alleged motor
vehicle accident dated 16.9.2010
involving vehicle bearing registration
no-AS-18-C-1656 (Auto Rickshaw) and
whether the said accident had taken place
due to rash and negligent driving of the
offending vehicle?
(II) Whether the claimant is entitled to any
compensation, and if yes, to what extent
and by whom amongst the opp. Parties, the
said compensation amount will be payable?
Then taking evidence adduced by both sides and
hearing arguments of learned Advocates of both sides the
learned Tribunal had allowed the claim petition and directed
the appellant herein to pay a sum of Rs.1,10,600.00 (Rupees
one lakh ten thousand and six hundred only) as
compensation to the claimant with interest @ 6% p.a. from
the date of 6.9.2016, the date of cross-examination of
claimant witness no.1, till payment.
Grounds:-
5. Being highly aggrieved and dissatisfied, the appellant has
preferred the present appeal, under Section 173 of the Motor Vehicles
Act, 1988, challenging the correctness or otherwise of the Judgment
and Award dated 11.07.2017, passed by the learned Member MACT,
Goalpara, and contended to set aside the impugned Judgment and
Award on the grounds that :-
(i) The impugned Judgment and Award dated 11.07.2017 in
MAC Case No.151/2012, is bad in law and facts and is
liable to be set aside.
(ii) The learned Tribunal, had, failed to appreciate the fact
that the appellant had adduced evidence by examining
an official of the Company to state that no policy of
Insurance was issued by the Ahmedabad Divisional
Office of the Appellant Insurance Company and after
such evidence it was the duty of the owner of the
vehicle to lead rebutting evidence to prove that there
was indeed a policy of insurance covering the vehicle
and produce the same before the Tribunal.
(iii) The learned Member instead of baselessly presuming
that the omission on the part of the appellant to deny
issuance of the cover note is an admission of providing
coverage ought to have directed the owner of the
vehicle to produce the cover note to verify the
genuineness of the Cover Note which has been relied
upon by the claimant for claiming compensation from
the Appellant Insurance Company Ltd.
(iv) The learned Tribunal erred in presuming that the
appellant had provided insurance coverage of the
alleged offending vehicle through the Cover Note relied
upon by the Claimant/Respondent and saddling the
appellant with a liability for paying compensation to the
claimant.
Submission:-
6. Mr. Goswami, learned counsel for the appellant, besides reiterating
the grounds mentioned herein above, raised following contentions for
consideration of this Court:-
(i) There is no record of issuance of any Insurance Policy by the
appellant against the Cover Note No-ARO/2009-237502
dated nil of the vehicle under registration no-AS-18-C-1656,
engine no-AOC0322252, chassis no-MCGOOAMC 4B1004102
owned by Md. Najmul Hoque and the Head Office of the
appellant situated at Ahmedabad has confirmed the same.
(ii) The owner of the vehicle had not contested the case to state
as to whether any insurance policy was issued against the
Cover Note No-ARO/2009-237502.
(iii) The learned Tribunal had failed to consider the evidence
adduced by an official of the appellant Company, who stated
that no policy of Insurance was issued by its Ahmedabad
Divisional Office and that it was the duty of the owner of the
vehicle to lead rebuttal evidence to prove that there was
indeed a policy of insurance covering the vehicle and produce
the same before the Tribunal.
6.1. Mr. Goswami has referred following decisions in support of his
submission:-
(i) Amrit Paul Singh vs. TATA AIG General
Insurance Co. Ltd., reported in (2018) 7 SCC
558;
(ii) Pappu v. Vinod Kumar Lamba, reported in
(2018) 3 SCC 208.
7. Per contra, Mr. A. Hussain, learned counsel for the respondent
No.1, has supported the impugned judgment and award. Mr. Hussain
submits that the learned Tribunal has committed some mistake in
calculating the total amount of compensation as sum of Rs.600/ is
added being the medical expenses whereas there is evidence to show
that the respondent No.1 had spent a sum of Rs.6,000/. Mr. Hussain
also submits that the accident took place in the year 2010 and since
then the respondent No.1 has not received a single penny as
compensation. Mr. Hussain also pointed out that the rate of interest so
awarded by the learned Tribunal is only 6%, but the same ought to
have been 9 % per annum and that too from the date of filing of the
claim petition. Under such circumstances, he had contended to dismiss
this appeal as being the insurer the appellant had to pay the amount of
compensation.
8. On the other hand, Mr. S.U. Ahmed, learned counsel for the
respondent No.2, referring to paragraph No.1 of the memorandum of
appeal, submits that the appellant had admitted that the offending
vehicle bearing registration No.AS-18-C-1656 (Auto Rickshaw) was
insured with it. Mr. Ahmed also pointed out that the respondent and 2
and 3 had contested the claim by filing their written statement and the
said factum is apparent from the impugned judgment and award itself
and in the written statement, they had taken a clear stand that the
offending vehicle was duly insured with the present appellant i.e.
United India Insurance Co. Ltd. and the respondent No.3, the driver of
the offending vehicle, had the valid driving licence and therefore, in
case of any liability, it would have to be borne by the appellant/ United
India Insurance Co. Ltd., the insurer of the offending vehicle. Referring
to Section 147 of the M.V. Act, Mr. Ahmed submits that a Cover Note
issued against a vehicle has the same value and effect of an insurance
policy. Under the above facts and circumstances, Mr. Ahmed has
contended to dismiss the appeal.
9. Having heard the submission of learned counsel for both the
parties, I have carefully gone through the memo of appeal as well as
the grounds mentioned therein and also gone through the impugned
Judgment and Award dated 11.07.2017, passed by the learned
Member MACT, Goalpara, in MAC Case No. 151/2012, and also gone
through the case laws referred by learned counsel for the appellant.
10. Now, coming to the contention of Mr. Goswami, learned counsel
for the appellant regarding issuance of insurance policy by the
appellant, this Court finds from the record of the learned Tribunal that
the appellant had not denied issuance of the Cover Note No.-
ARO/2009-237502. The primary contention of the appellant is that
there is no record of issuance of insurance of insurance policy by the
Head Office of the appellant Company, pursuant to the said Cover
Note. The appellant had also examined one Amitava Modak, a Senior
Assistant of United India Insurance Co. Ltd., Goalpara Branch as D.W.-
1, in order to prove that the offending vehicle was not insured with
them. The said witness testified that Mr. J.K. Jain, Divisional Manager,
United India Insurance Co. Ltd., Ahmedabad informed that their
genisys system has not been showing any insurance policy for the
Cover Note no-ARO/2009-237502 dated nil of the vehicle under
registration no-AS-18-C-1656, engine no-AOC0322252, chassis no-
MCGOOAMC 4B1004102, owned by Md. Najmul Hoque. But, it appears
that nowhere in his evidence denied issuance of the Cover Note No.-
ARO/2009-237502, by the appellant in respect of the vehicle bearing
registration no-AS-18-C-1656 (Auto Rickshaw).
11. It also appears from the impugned judgment and award that the
learned Tribunal has recorded a finding that as per provisions of
Section 147 of the M.V. Act, the Cover Note issued against a vehicle,
has the same value and effect as of an insurance policy issued insuring
the vehicle and thereafter, fastened the liability of honoring the award
upon the appellant. The learned counsel for the respondent No. 2 also
submitted that in view of the provision of Section 147 of the MV Act,
the Cover Note has the same effect like the insurance policy.
12. Section 147 of the M.V. Act ,1988 deals with the requirements of
policies and limits of liability. - Sub-Section (1) provides that in order
to comply with the requirements of this Chapter, a policy of insurance
must be a policy which -
(a) is issued by a person who is an authorised insurer; and
(b) insures the person or classes of persons specified in the
policy to the extent specified in sub-section (2)
(i) against any liability which may be incurred by him in
respect of the death of or bodily injury to any person
including owner of the goods or his authorised
representative carried in the motor vehicle or damage
to any property of a third party caused by or arising
out of the use of the motor vehicle in a public place;
(ii) against the death of or bodily injury to any passenger
of a transport vehicle, except gratuitous passengers
of a goods vehicle, caused by or arising out of the use
of the motor vehicle in a public place.
Explanation. - For the removal of doubts, it is hereby clarified that the
death of or bodily injury to any person or damage to any property of a
third party shall be deemed to have been caused by or to have arisen
out of, the use of a vehicle in a public place, notwithstanding that the
person who is dead or injured or the property which is damaged was
not in a public place at the time of the accident, if the act or omission
which led to the accident occurred in a public place.
12.1. Sub-Section (5) to Section 1 of the MV Act provides that where
a cover note issued by the insurer under the provisions of this Chapter
or the rules or regulations made there under is not followed by a policy
of insurance within the specified time, the insurer shall, within seven
days of the expiry of the period of the validity of the cover note, notify
the fact to the registering authority or to such other authority as the
State Government may prescribe.
12.2. Admittedly, herein this case though the appellant had taken the
stand that the Cover Note was not followed by a policy of insurance
within the specified time, had failed to notify, within seven days of the
expiry of the period of the validity of the cover note, to the registering
authority or to such other authority. The evidence of D.W.-1 so
examined by the appellant, had never whispered any word in this
regard during his examination by the Tribunal.
12.3. This issue i.e. the issue of Cover Note, so issued by the
insurance company, and its effect, was considered by Hon'ble Supreme
Court in the case of National Insurance Co. Ltd. vs. Abhaysing
Pratapsing Waghela, reported in (2008) 9 SCC 133, wherein the
issue was addressed as under:-
"17. Indisputably, the first respondent is a
third party in relation to the contract of
insurance which had been entered into by and
between the appellant and the owner of the
vehicle in question. We have noticed
hereinbefore that a document was produced before
the Tribunal. Even according to the appellant,
although it was only a Motor Input Advice-cum-
Receipt, it contained Cover Note No. 279106. We,
therefore, have to suppose that a cover note
had, in fact, been issued. If a cover note had
been issued which in terms of clause (b) of sub-
section (1) of Section 145 of the Act would come
within the purview of definition of certificate
of insurance; it would also come within the
purview of the definition of insurance policy.
If a cover note is issued, it remains valid till
it is cancelled. Indisputably, the insurance
policy was cancelled only after the accident
took place. A finding of fact, therefore, has
been arrived at that prior to the deposit of the
premium of insurance in cash by the owner of the
vehicle, the cover note was not cancelled.
12.4. In the instant case, the Cover Note no-ARO/2009-237502, dated
nil of the vehicle under registration No.-AS-18-C-1656, engine no-
AOC0322252, chassis no-MCGOOAMC 4B1004102, was owned by Md.
Najmul Hoque. Said Cover Note was not cancelled by the appellant
herein. Though by examining one witness, namely, Amitava Modak, a
Senior Assistant of United India Insurance Co. Ltd., Goalpara Branch as
D.W.-1, in order to prove that the offending vehicle was not insured
with them, yet he only testified that Mr. J.K. Jain, Divisional Manager,
United India Insurance Co. Ltd., Ahmedabad informed that their
genisys system has not been showing any insurance policy for the
Cover Note no-ARO/2009-237502 dated nil of the vehicle under
registration no-AS-18-C-1656, engine no-AOC0322252, chassis no-
MCGOOAMC 4B1004102. But, it appears that nowhere in his evidence
denied issuance of the Cover Note No.-ARO/2009-237502, by the
appellant in respect of the vehicle bearing registration no-AS-18-C-
1656 (Auto Rickshaw). And admittedly also no notice under Sub-
Section (5) to Section 1 of the MV Act, was issued by the appellant
within seven days of the expiry of the period of the validity of the cover
note, notifying the fact to the registering authority or to such other
authority as the State Government may prescribe, though a contention
is being taken that the Cover Note is not followed by a policy of
insurance within the specified time.
12.5. Under the given factual scenario, it appears that the learned
Tribunal had not committed any illegality in fastening the liability upon
the appellant to honour the award. As held by Hon'ble Supreme Court
in the case of Abhaysing Pratapsing Waghela (supra, if a cover
note is issued, it remains valid till it is cancelled. Admittedly, the Cover
Note has not been cancelled herein this case. And admittedly also, no
notice under Sub-Section (5) to Section 1 of the Act, was issued by the
appellant within seven days of the expiry of the period of the validity of
the cover note, notifying the fact to the registering authority etc.
13. The learned Tribunal had also found that the accident took place
on 16.9.2010, at about 1-30 P.M., at Gosaidubi Hindu Para, while the
claimant/respondent No.1 herein was coming from Gosaidubi towards
Lakhipur in an Auto Rickshaw, bearing registration no-AS-18-C-1656,
and also found that the accident took place due to high speed and rash
and negligent driving of the Auto Rickshaw by the driver. The learned
Tribunal also found that due to rash and negligent driving, claimant fell
down from the vehicle on the road and the wheel of the vehicle ran
over her left leg. As a result, she sustained grievous injuries upon her
left leg and other parts of her body. After the accident she was taken
to Lakhipur PHC and from there she was referred to Goalpara Civil
Hospital where she underwent treatment and thereafter, from there
she was taken to Florence Hospital, Goalpara where she also
underwent treatment. The learned Tribunal also found that the factum
of accident involving the offending vehicle and sustaining of injuries by
the claimant, remained un-rebutted in her cross-examination. The
learned Tribunal also found that Ext. 2, the left thigh X-ray report of
the claimant being done at Florence Hospital, Goalpara reveals that the
claimant has sustained transverse fracture in the mid of the shaft of
femur lower fragment dislocation upward and inward.
13.1. Notably, the appellant herein had not challenged the aforesaid
finding of the learned Tribunal in this appeal.
14. It is to be noted here that in the case of Raj Kumar v. Ajay
Kumar & Anr., reported in (2011) 1 SCC 343, Hon'ble Supreme
Court has held that the claimant is entitled to compensation under
the following heads in a routine injury case:-
"Pecuniary damages (Special Damages)
(i) Expenses relating to treatment,
hospitalization, medicines, transportation,
nourishing food, and miscellaneous
expenditure.
(ii) Loss of earnings (and other gains) which
the injured would have made had he not been
injured, comprising :
(a) Loss of earning during the period of
treatment;
(b) Loss of future earnings on account of
permanent disability.
(iii) Future medical expenses.
Non-pecuniary damages (General Damages)
(iv) Damages for pain, suffering and trauma as a
consequence of the injuries.
(v) Loss of amenities (and/or loss of prospects
of marriage).
(vi) Loss of expectation of life (shortening of
normal longevity).
15. It has also been held in the said case that:-
"In routine personal injury cases, compensation
will be awarded only under heads (i), (ii)(a)
and (iv). It is only in serious cases of
injury, where there is specific medical
evidence corroborating the evidence of the
claimant, that compensation will be granted
under any of the heads (ii)(b), (iii), (v) and
(vi) relating to loss of future earnings on
account of permanent disability, future medical
expenses, loss of amenities (and/or loss of
prospects of marriage) and loss of expectation
of life."
16. In the case in hand, from the record of the learned Tribunal it is
found that it is a case of routine personal injury. And as such, the
claimant will be entitled to compensation under the following heads
only.
(i) Expenses relating to treatment,
hospitalization, medicines, transportation,
nourishing food, and miscellaneous expenditure.
(ii) Loss of earnings (and other gains) which the
injured would have made had he not been
injured, comprising :
(a) Loss of earning during the period of
treatment;
(iii) Damages for pain, suffering and trauma as a
consequence of the injuries.
16.1. It appears from the record of the learned Tribunal that it has
awarded a sum of Rs.1,10,600.00 (Rupees one lakh ten thousand and
six hundred only) as compensation to the claimant with interest @ 6%
p.a. from the date of 6.9.2016, the date of cross-examination of
claimant witness no.1, till payment and directed the appellant herein to
pay the award to the claimant within one month from the date of the
order. It is further directed that the amount, if any, paid as no fault
liability, shall be adjusted.
17. Further it appears that the learned Tribunal had assessed the
compensation as under:-
(i) Medical expenditure :-Rs. 600.00
(ii) Incidental expenditure :-Rs. 10,000/
(iii) Pain, shock and suffering :- Rs.1,00,000/
Total................... = Rs.1,10,600/
18. It appears that the learned Tribunal had, based upon the cash
memos, arrived at a finding that the claimant had spent a sum of
Rs.6,000/ towards her medical treatment. The learned Tribunal
however, while calculating the same had added a sum of Rs. 600/ only
as the medical expenses. But, in fact the claimant/respondent No.1,
had exhibited only two Cash Memo for a sum of Rs. 600/ only. Though
Mr. Hussain, the learned counsel for the respondent No.1 had argued
at the time of hearing that the medical expenditure was wrongly
calculated at Rs.600/, the same, in the given facts and circumstances,
is found to be not based on record. And as such, no interference of the
same is warranted.
19. It also appears that there is no pleading as well as evidence to
demonstrate that the claimant had suffered loss of earnings during the
period of treatment. There is no indication in the claim petition and in
her evidence that she was hospitalized after the accident. And as such
the learned Tribunal had rightly not awarded any compensation under
the said head. Thus, the compensation, which the claimant is entitled
to herein this case, appears to be rightly assessed by the learned
Tribunal and it warrants no interference of this Court.
20. It also appears that in the impugned Judgment and Award, the
learned Tribunal has awarded interest @ 6% per annum from the date
of cross-examination of the claimant witness No. 1, i.e. 06.09.2016.
Mr. Hussain, the learned counsel for the claimant/respondent No.
1however, submitted that the rate of interest is too low as the accident
took place about 15 years back. This Court has considered the
submission of Mr. Hussain, the learned Counsel for the
claimant/respondent No. 1 and there appears to be substance in the
same.
21. The issue of awarding of rate of interest has been dealt with by
Hon'ble Supreme Court in umpteen cases, including the case of
Municipal Corporation of Delhi vs. Uphaar Tragedy Victims
Association and Others, reported in (2011) 14 SCC 481. In
the said case, it has been held that the interest upon the compensation
amount @ 9% per annum, would be justified. Same principle was
followed in the case of Kalpanaraj vs. Tamil Nadu State
Transport Corporation, reported in (2014) C.R. 693 (SC).
Therefore, this Court is of the considered opinion that the rate of
interests, so awarded by the learned Tribunal, has to be interfered
with, and accordingly, the same stand modified to 9% per annum,
from the date of cross-examination of the witnesses.
22. As regards the contention of Mr. Goswami, learned counsel for
the appellant, regarding the role of the owner of the vehicle in a
proceeding under Section 166 of the M.V. Act, this Court, finds the
same devoid of substance in the same. And the decisions relied upon
by him also fortified his submission. It is to be noted here that in the
case of Amrit Paul Singh (supra), Hon'ble Supreme Court has
held as under:-
"24. In the case at hand, it is clearly
demonstrable from the materials brought on
record that the vehicle at the time of the
accident did not have a permit. The
appellants had taken the stand that the
vehicle was not involved in the accident.
That apart, they had not stated whether the
vehicle had temporary permit or any other
kind of permit. The exceptions that have been
carved out under Section 66 of the Act,
needless to emphasise, are to be pleaded and
proved. The exceptions cannot be taken aid of
in the course of an argument to seek
absolution from liability. Use of a vehicle
in a public place without a permit is a
fundamental statutory infraction. We are
disposed to think so in view of the series of
exceptions carved out in Section 66. The said
situations cannot be equated with absence of
licence or a fake licence or a licence for
different kind of vehicle, or, for that
matter, violation of a condition of carrying
more number of passengers. Therefore, the
principles laid down in Swaran
Singh [National Insurance Co. Ltd. v. Swaran
Singh, (2004) 3 SCC 297 : 2004 SCC (Cri) 733]
and Lakhmi Chand [Lakhmi Chand v. Reliance
General Insurance, (2016) 3 SCC 100 : (2016)
2 SCC (Civ) 45] in that regard would not be
applicable to the case at hand. That apart,
the insurer had taken the plea that the
vehicle in question had no permit. It does
not require the wisdom of the "Tripitaka",
that the existence of a permit of any nature
is a matter of documentary evidence. Nothing
has been brought on record by the insured to
prove that he had a permit of the vehicle. In
such a situation, the onus cannot be cast on
the insurer. Therefore, the Tribunal as well
as the High Court had directed that the
insurer was required to pay the compensation
amount to the claimants with interest with
the stipulation that the insurer shall be
entitled to recover the same from the owner
and the driver. The said directions are in
consonance with the principles stated
in Swaran Singh [National Insurance Co.
Ltd. v. Swaran Singh, (2004) 3 SCC 297 : 2004
SCC (Cri) 733] and other cases pertaining to
pay and recover principle."
22.1. Thereafter, in the case of Pappu(supra) Hon'ble Supreme
Court has held as under:-
13. In the present case, Respondent 1 owner
of the offending vehicle merely raised a
vague plea in the written statement that the
offending Vehicle No. DIL 5955 was being
driven by a person having valid driving
licence. He did not disclose the name of the
driver and his other details. Besides,
Respondent 1 did not enter the witness box or
examine any witness in support of this plea.
Respondent 2 insurance company in the written
statement has plainly refuted that plea and
also asserted that the offending vehicle was
not driven by an authorised person and having
valid driving licence. Respondent 1 owner of
the offending vehicle did not produce any
evidence except a driving licence of one
Joginder Singh, without any specific stand
taken in the pleadings or in the evidence
that the same Joginder Singh was, in fact,
authorised to drive the vehicle in question
at the relevant time. Only then would onus
shift, requiring Respondent 2 insurance
company to rebut such evidence and to produce
other evidence to substantiate its defence.
Merely producing a valid insurance
certificate in respect of the offending truck
was not enough for Respondent 1 to make the
insurance company liable to discharge his
liability arising from rash and negligent
driving by the driver of his vehicle. The
insurance company can be fastened with the
liability on the basis of a valid insurance
policy only after the basic facts are pleaded
and established by the owner of the offending
vehicle that the vehicle was not only duly
insured but also that it was driven by an
authorised person having a valid driving
licence. Without disclosing the name of the
driver in the written statement or producing
any evidence to substantiate the fact that
the copy of the driving licence produced in
support was of a person who, in fact, was
authorised to drive the offending vehicle at
the relevant time, the owner of the vehicle
cannot be said to have extricated himself
from his liability. The insurance company
would become liable only after such
foundational facts are pleaded and proved by
the owner of the offending vehicle.
22.2. But, in view of the given factual and legal matrix, and in view
of the discussions and findings above, this Court is of the considered
opinion that the decision, so referred by Mr. Goswami would not
advance his argument.
Finding:-
23. In the result, this Court finds no merit in this appeal and
accordingly, the same stands dismissed. However, the rate of interest
is modified to the extent indicated above.
24. The appellant, i.e. the United India Insurance Company Limited, is
directed to pay a sum of Rs.1,10,600/- (Rupees one lakh ten
thousand and six hundred) only, being the compensation, which
according to this Court is just compensation, here in this case. The
amount, if already paid to the claimant has to be deducted from the
aforesaid amount.
25. The appellant shall deposit the aforesaid amount before the
learned Tribunal within a period of 30 days from the date of this
judgment.
26. In terms of above, this MAC appeal stands disposed of. The
Registry shall send down the record of the learned Tribunal with a copy
of this judgment and order forthwith. The parties have to bear their
own cost.
JUDGE
Comparing Assistant
