Page No.# 1/ vs Smti Asha Devi And 3 Ors
2025 Latest Caselaw 7950 Gua

Gauhati High Court

Page No.# 1/ vs Smti Asha Devi And 3 Ors on 23 October, 2025

                                                              Page No.# 1/11

GAHC010005292016




                                                         2025:GAU-AS:14063

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

                       Case No. : MACApp./563/2018

         NEW INDIA ASSURANCE CO. LTD.
         A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956,
         REPRESENTED BY ITS REGIONAL MANAGER, G.S. ROAD, GUWAHATI-5,
         DIST. KAMRUP, ASSAM.



         VERSUS

         SMTI ASHA DEVI and 3 ORS
         W/O LATE PARMANANDA @ PARAMANADA GIRI, R/O HOUSE NO. 18,
         NEAR MILANJYOTI CLUB, MILANPUR, P.S. CHANDMARI, DIST. KAMRUP
         (M), ASSAM, PIN 781003

         2:NITYANANDA GIRI
          S/O LATE PARMANANDA @ PARAMANADA GIRI
          R/O HOUSE NO. 18
          NEAR MILANJYOTI CLUB
          MILANPUR
          P.S. CHANDMARI
          DIST. KAMRUP M
         ASSAM
          PIN 781003

         3:M/S ANKIT ROAD LINES

          PROP RAMSWARUP KHANDELWAL
          KEDAR ROAD
          NEAR HOTEL RITURAJ
          GUWAHATI
          DIST. KAMRUP M
          ASSAM
          PIN 781001
                                                                           Page No.# 2/11

            4:KIRAN SAIKIA
             S/O NUMAL SAIKIA
             CHUTIAKARI GAM
             P.S. NORTH LAHIMPUR
             DIST. LAKHIMPUR
            ASSAM
             PIN 78700

Advocate for the Petitioner   : MRS.B ACHARYA, MR.A ACHARYA

Advocate for the Respondent : MR. T J MAHANTA (R, MR. S SINGH (R-1,2),MR. A

BHATTACHARYYA (R-1,2),,,MR.A BARUA(R- 1&2),MR.S SINGH(R- 1&2),MS.P BHATTACHARYA(R- 1&2)

BEFORE HONOURABLE MRS. JUSTICE MITALI THAKURIA

JUDGMENT & ORDER (CAV) Date : 23-10-2025

1. Heard Mr. A. Acharya, the learned counsel for the appellant. Also heard Mr. A. Bhattacharyya, the learned counsel for the respondents.

2. This is an appeal u/s 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 03.10.2015 passed by Additional District Judge No.2, Kamrup (Metro), in MACT Case No. 2055/2013.

3. The brief facts of the case is that on 17.10.2013 when a Spark car was proceeding from Nagaon towards Guwahati on the left side of the road and while reached at Nellie Over Bridge, on NH way, all of a sudden a truck bearing No. AS-01/BC-8671 coming from the opposite direction in a very high speed, came on the wrong track and knocked the aforesaid car from the front side, consequent to which one of the occupant of the car Parmananda @ Paramanada Page No.# 3/11

Giri died on the spot and the widowed wife and the son has instituted a claim for compensation of Rs. 40 lacs. The claimant is of the view that the accident took place due to rash and negligent driving of the truck and accordingly claimed compensation which was registered as MAC Case No. 2055/2013. After going through the evidence on record the learned Additional District Judge No. 2/ Member MACT has passed the judgment and order dated 03.10.2015 and awarded compensation to the tune of Rs. 20,81,813/- to be paid to the claimant by the insurer of the offending vehicle i.e. the New India Assurance Company Limited, the appellant herein.

The driver of the offending vehicle truck did not contest the case and the case proceeded ex-parte against him. However, the owner of the offending vehicle had contested the case.

4. It is submitted by Mr. Acharya, the learned counsel for the appellant that the Hon'ble Tribunal has failed to appreciate the evidence on record on its proper perspective in assessing compensation. As the accident occurred due to head on collision as stated by the claimant in the claim petition itself and in its evidence, so both the drivers should be held equally responsible for the accident and the owners of both the vehicles should have been made equally liable to pay compensation to the claimant. But, the learned Tribunal has committed error by not taking into consideration this aspect of the matter and awarded the whole amount to be paid by the present appellant being insurer of the Truck.

5. It is further submitted by Mr. Acharya that the Driving License of the driver of the offending truck is incorrect and forged. In that aspect the present appellant has filed an additional Written Statement stating that the Driving License of the driver of the offending truck was incorrect and forged and that the insurance company is not liable to pay any compensation.

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6. It is submitted by Mr. Acharya that it is an admitted fact that the accident occurred due to head and collision between the two vehicles and from the evidence also it reveals that there was no curve on the road and it was a straight road. So everything could be seen for both the vehicles and hence there was contributory negligence for both the vehicles for which the accident had occurred. But, the learned Member, MACT did not consider these aspects of the case and arrived at a wrong decision directing the present appellant/the insurance company to satisfy the award.

7. Mr. Acharya submitted that admittedly it was a head on collision and considering the condition of the road and other aspects of the case it may be considered that there was a contributory negligence from the drivers of both the vehicles and hence both the vehicles should be held equally liable for the said accident. To substantiate the same he also relied on the decision of Hon'ble Supreme Court reported in (2006) 3 SCC 242 and basically emphasized in para 12 of the said judgment which reads as under:-

"Adverting to the next contention of the claimants, no doubt the High Court has not dealt with the point in issue. However, we have noticed the reasoning and finding of the MACT recorded under Issue No.2. It is the evidence of Rajesh Kumar Gupta-P.W.2 who was travelling in the Maruti car along with the deceased Raj Kumar Dugar on the day of the accident that he also suffered some injuries in the said accident. He stated that while coming from Digboi, the Maruti car being driven by the deceased met with an accident at a place near Kharjan Pol. Before the accident, Raj Kumar Dugar noticed a passenger bus coming from the opposite direction and the movement of the bus was not normal as it was coming in a zigzag manner. The Maruti car being driven by the deceased Raj Kumar Dugar and the offending bus had a head- on collision. The MACT has not accepted the evidence of P.W. 2 to prove that the driver of the offending bus was driving the vehicle in abnormal speed. If the bus was being driven by the driver abnormally in a zigzag manner, as P.W. 2 wanted to believe the Court, it was, but natural, as a prudent man for the deceased to have taken due care and precaution to avoid head-on collision when he had already seen the bus from a long distance coming from the opposite direction. It was head- on collision in which both the vehicles were damaged and unfortunately, Raj Kumar Dugar died on the spot. The MACT, in our view, has rightly observed that had it been the knocking on one side of the car, the negligence or rashness could have been wholly Page No.# 5/11

fastened or attributable to the driver of the bus, but when the vehicles had a head-on collision, the drivers of both the vehicles should be held responsible to have contributed equally to the accident. The finding on this issue is a finding of fact and we do not find any cogent and convincing reason to disagree with the well-reasoned order of the MACT on this point. The MACT has awarded interest at the rate of 10% per annum on the amount of compensation from the date of filing of the claim application till the date of payment. It is a discretionary relief granted by the MACT and, in our view, the discretion exercised by the MACT cannot be said to be inadequate and inappropriate."

8. Mr. Acharya further submitted that the owner of the offending vehicle also did not contest the case before the learned Court of MACT wherein the insurance company/the appellant took the plea of fake driving license used by the driver at the time of accident by filing their additional written statement. He further submitted that the onus would shift on the insurance company only after the owner of the offending vehicle proves the basic fact that the driver has a valid driving license at the relevant time of incident. In this regard he also cited a decision of the Hon'ble Apex Court which is reported in (2018) 3 SCC 208 Pappu & Others v. Vinod Kumar Lamba & Another and emphasized in para 12 of the said judgment which reads as under:

"This Court in the case of National Insurance Co. Ltd. (supra), has noticed the defences available to the Insurance Company under Section 149(2)(a)(ii) of the Motor Vehicles Act, 1988. The Insurance Company is entitled to take a defence that the offending vehicle was driven by an unauthorised person or the person driving the vehicle did not have a valid driving licence. The onus would shift on the Insurance Company only after the owner of the offending vehicle pleads and proves the basic facts within his knowledge that the driver of the offending vehicle was authorised by him to drive the vehicle and was having a valid driving licence at the relevant time."

9. Citing the above referred judgment it is submitted by Mr. Acharya that the claimant could not prove that the accident had occurred only due to the negligence on the part of the offending vehicle and in the same time it also could not be proved that the driver of the offending vehicle had a valid Driving License at the relevant time of accident.

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10. Mr. Acharya further submitted that the Hon'ble High Court in another case reported in (2008) 6 SCC 767 also expressed the view that "to determine the question as to who contributed to the happening of the accident, it becomes relevant to ascertain who was driving his vehicle negligently and rashly and in case both were so doing who was more responsible for the accident and who of the two had the last opportunity to avoid the accident." But, here in the instant case there is no such evidence that the other vehicle tried to avoid the accident or the accident had occurred only due to rash and negligent driving of the driver of the vehicle. The learned Member, MACT did not consider all these aspects of the case and arrived at a wrong findings directing the present appellant/insurance company to pay and satisfy the award passed in favour of the claimants/respondents.

11. Mr. Acharya accordingly submitted that the judgment & award passed by the learned Member, MACT is accordingly liable to be dismissed and set aside and quashed.

12. Mr. Bhattacharyya, the learned counsel appearing for the respondent nos. 1 & 2/claimants/owner of the offending vehicle submitted in this regard that the learned Member, MACT had rightly passed the judgment & order and awarded compensation in favour of the claimants/respondents. From the evidence-on- record it reveals that the accident occurred only for the rash and negligent driving of the driver of the offending vehicle and hence there cannot be any question of contributory negligence on the part of the other vehicle to held responsible to the insurer or the other vehicle for the payment of compensation. It is submitted that at the time of filing of the claim petition itself it is specifically stated in column 23 of the claim petition as to how the accident occurred and it is also explained the negligence on the part of the offending vehicle/truck at the Page No.# 7/11

time of accident. It is submitted that in para 5 of the WS filed by the insurance company/appellant did not raise the issue of fake Driving License of the driver of the offending vehicle/Truck rather it has taken the plea that the other vehicle i.e. the Spark car was the offending vehicle and the Truck is not the offending vehicle and not responsible for the alleged accident and in the same para there was no plea at all that the truck bearing Registration No. AS-01/BC-8671 was driven by a person without any valid Driving License.

13. Mr. Bhattacharyya further submits that there is no evidence at all that the accident occurred due to contributory negligence on the part of the driver of the other vehicle to make responsible the other vehicle for payment of the compensation. Further, he submitted that there is no evidence that it was a four lane or straight road as submitted by the learned counsel for the appellant and these submissions cannot be accepted which are made only on some assumption unless it is proved by some evidence. Accordingly, Mr. Bhattacharyya submitted that it is a case wherein the driver had a valid driving license at the relevant time of accident and at the same time the accident occurred only due to the rash and negligence driving of the driver of the offending vehicle which came towards the wrong side of the road and hit the other vehicle (Spark) and for which the claimants sustained grievous injury and one occupant also died in the same accident.

14. Mr. Bhattacharyya has submitted that the learned Member of the MACT has rightly passed the judgment and assessed the award accordingly. Thus, there is no need of any interference in the judgment & award passed by the learned Additional District Judge No.2, Kamrup (Metro), in MACT Case No. 2055/2013.

15. Hearing the submissions made by the learned counsel for both sides, I have also perused the case record and the judgment passed by the learned Page No.# 8/11

Member, MACT. The accident is not disputed and it is also not disputed by the appellant that the husband/son of the claimant died for the said accident. The only ground for the appeal is that there was contributory negligence of the driver of the other vehicle and in the same time it is also took the plea that the driver of the offending vehicle had no valid driving license at the relevant time of incident. Further, there is no dispute that the accident occurred due to head on collision with the offending vehicle.

16. It is seen from the claim petition itself that in para 23 it is pleaded by the claimant/respondent that the accident occurred due to rash and negligent driving of the offending vehicle/truck which came from the opposite direction and coming towards wrong direction hit the other vehicle i.e. the Spark and for which the occupant namely the deceased died on the spot. One of the claimant i.e. the son of the deceased had adduced his evidence as PW-1 wherein also it is alleged that at the relevant time of accident his father was the occupant of the Spark vehicle when the offending vehicle i.e. the truck coming in a high speed and also coming towards wrong side had knocked the vehicle for which the accident had occurred. It is cross-examined by the company that there was contributory negligence on the part of the other vehicle which dashed with a truck which was standing at the relevant time and the accident occurred due to rash and negligent driving of the other vehicle. But, there is no cross evidence to the extent that there was any contributory negligence on the part of the other vehicle and the insurance company also could not substantiate the plea that the other vehicle i.e. the Spark had dashed against a standing vehicle/truck and thus there was no rash and negligent driving on the part of the offending truck. The suggestion which was put to him had already denied by PW-1. Thus, there is no evidence that the accident had occurred due to the contributory Page No.# 9/11

negligence of both the vehicles. He was also not put any question in regards to fake or invalid driving license of the driver of the vehicle.

17. However to substantiate the plea, the insurance company/appellant had filed an additional written statement taking the plea that the driver of the offending vehicle/truck had no valid driving license at the relevant time of incident. But, the insurance company could not substantiate the said plea neither by adducing any evidence nor bringing any officials from the office of the DTO to prove that the Driving License was fake and the driver had no valid license at the relevant time of incident, violating the terms and conditions of the insurance policy. More so, the PW-3, one of the occupant/the injured had also deposed his evidence as PW-3 supporting the claim of the claimant and as per him also the accident occurred only due to rash and negligent driving of the driver of the offending truck.

18. Thus, it is seen that there is no evidence at all to held that there was a contributory negligence on the part of the other vehicle of the alleged accident. Rather, from the evidence of both PW-1/claimant and PW-3, one of the injured, it is seen that the offending vehicle/Truck coming in a very high speed and towards wrong direction had knocked down the other vehicle causing the road traffic accident for which the deceased died on the spot.

19. In case of Rajo Devi & Another v. Amanjeet Kaur & Others, reported in 2025 SCC OnLine SC 1174 the Hon'ble Apex Court had expressed the view that the evidence is also to be considered while passing the order on the principle of contributory negligence and the evidence of the eye-witnesses also to be considered as to how the accident occurred or as to whether there was any contributory negligence on the part of both the vehicles. In paragraphs 18 & 19 of the said judgment it has been discussed as under:-

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"18. A careful perusal of the site plan shows that point 'A' is shown as the place where the accident took place and where the motorcycle was found lying. Point 'A' is on the left side of the road going from North to South. Point 'B' in the site plan denotes the place and where Alto car was found lying. Point 'B' is on the extreme right side of the same road.

Pont 'C' in the site plan marks the place where dead body of the deceased persons were found lying i.e. in the field of Ramchari S/o Ratiram. Point 'C' is on the extreme left side of the same road. The distance of point 'B' from point 'A' is about 62 feet, and of point 'C' about 18 feet.

19. Therefore, as per the site plan, deceased Gautam was riding his motorcycle on his left side of the road when the Alto Car hit him. The site plan also corroborates the testimony of eyewitness PW4, complainant Suresh. Thus, in view of the above discussion, this Court finds that the accident in question took place due to rash and negligent driving of Gulzar Singh only, driver of Alto car and there was no contributory negligence on the part of deceased Gautam."

20. In the instant case also it is seen that the accident occurred only due to rash and negligent driving of the offending truck which came into wrong direction from the opposite and knocked down the other vehicle and thus the accident caused only due to rash and negligent driving of the driver of the vehicle. Without any other evidence to support the case of the defence it can not be held that there was contributory negligent on the part of the other vehicle. Merely because of head on collision it cannot be held that there was contributory negligence from both the vehicles for the said accident. Coming to the plea to fake Driving License it is seen that the insurance company filed an additional WS wherein it took the plea that the driver had no valid Driving License at the relevant time of incident. But, to substantiate the said plea the insurance company did not adduce any evidence neither from the official of the DTO wherefrom the license was issued nor brought any other record to substantiate the same.

21. So from the entire discussion made above it is seen that there is no evidence to prove that there was a contributory negligence on the part of other vehicle to make liable for payment of 50% of the awarded compensation and in Page No.# 11/11

the same time the appellant also failed to substantiate the plea that at the relevant time of incident the driver of the offending vehicle had no valid driving license for any violation of the terms and conditions of the policy.

22. Accordingly, this Court finds no reason to make any interference in the judgment and award passed by the learned Additional District Judge No.2, Kamrup (Metro), in MACT Case No. 2055/2013. The appellant is hereby allowed to withdraw the statutory deposit amounting to Rs. 25,000/-. Registry to do the needful.

23. Accordingly, this MAC appeal stands dismissed and disposed of.

JUDGE

Comparing Assistant