Page No.# 1/12 vs Munindra Mohan Kalita And 2 Ors
2025 Latest Caselaw 7952 Gua

Gauhati High Court

Page No.# 1/12 vs Munindra Mohan Kalita And 2 Ors on 23 October, 2025

                                                                    Page No.# 1/12

GAHC010149132017




                                                               2025:GAU-AS:14062

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

                              Case No. : MACApp./590/2017

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



            VERSUS

            MUNINDRA MOHAN KALITA and 2 ORS.
            S/O SRI GAJENDRA MOHAN KALITA, R/O CHANDMARI, P.O. CHANDMARI,
            P.S. CHANDMARI, DIST. KAMRUP M, ASSAM, PIN 781003

            2:M/S ANKIT ROAD LINES

             PROP. RAMSWARUP KHANDELWAL
             KEDAR ROAD
             NEW HOTEL RITURAJ
             GUWAHATI
             DIST. KAMRUP M
             ASSAM
             PIN 781001

            3:KIRAN SAIKIA

             S/O NUMAL SAIKIA
             CHUTIAKARI GAM
             P.S. NORTH LAKHIMPUR
             DIST. LAKHIMPUR
             ASSAM
             PIN 78700

Advocate for the Petitioner   : MRS.B ACHARYA, MR. A ACHARYA
                                                                      Page No.# 2/12

Advocate for the Respondent : MR. S SINGH, MR. A BHATTACHARYYA

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 18.05.2017 passed by Motor Accident Claims Tribunal No. :1, Kamrup, in MACT Case No. 265/2015.

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, knocked the aforesaid car from the front side, consequent to which the occupant of the car Sri Munindra Mohan Kalita (the claimant) sustained grievous injuries on his person. The claimant is of the view that the accident took place due to rash and negligent driving of the truck and claimed compensation by registering a case vide MAC Case No. 265/2015. After going through the evidence on record, the learned Member, Motor Accident Claims Tribunal No. 1, Kamrup passed a judgment on 18.05.2017 and has awarded compensation of Rs. 94,000/- to be paid to the claimant by the insurer of the offending truck i.e. New India Assurance Co. Ltd, the appellant herein.

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The owner and the driver of the offending truck did not contest the case and the case proceeded ex-parte against them.

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 had 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 and had examined two Defence Witnesses in that regard. But, the learned Tribunal without taking into consideration the fact that the Driving License is fake and the insurance company is not liable to indemnify the owner, has whimsically held that the appellant is only liable to pay compensation to the claimant to the tune of Rs. 94,000/-. Thus, the order of the learned Tribunal is not legally sustainable.

6. The learned counsel for the appellant further stated that the claimant stated that the deceased was earning a monthly income of Rs. 10,000/-. But in support of it, he could not provide any documentary evidence regarding his profession and income. The learned Tribunal has not taken into consideration this aspect of the matter and awarded the amount of Rs. 30,000/- under head Page No.# 4/12

of loss of income, which is not legally sustainable.

7. It is submitted by Mr. Acharya that to substantiate the fact the Driving License was fake, two DWs were also examined by the appellant and it is also an admitted fact that the accident occurred due to head and collision between the two vehicles. Further from the evidence it also reveals that there was no curve on the road and it was a straight road. So everything could be seen by both the vehicles and hence there was contributing negligence for both the offending and the other vehicle for which the accident had occurred. But, the learned Member, MACT did not consider this aspect of the case and arrived at an illegal decision directing the present appellant insurance company to satisfy the award of Rs. 94,000/- @ interest of 6% per annum from the date of filing of the petition.

8. 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 Page No.# 5/12

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 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."

9. He further submitted that the appellant/insurance company has already taken the plea that the Driving License of the driver of the offending vehicle was not valid at the relevant time of accident and they have also filed an RTI application for the same. Further two DWs were also examined by the insurance company to that extent.

10. 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. 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 Page No.# 6/12

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."

11. 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.

12. 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.

13. 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.

14. Mr. Bhattacharyya, the learned counsel appearing for the respondent nos. 1 Page No.# 7/12

& 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 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.

15. 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 Page No.# 8/12

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.

16. 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 Member, MACT No. 1, Kamrup, in MAC Case No. 265/2015.

17. 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 Member, MACT. The accident is not disputed and it is also not disputed by the appellant that the claimant sustained grievous injury 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 and collision of the offending vehicle with the other vehicle. The appellant/insurance company also adduced two DWs to substantiate their plea. So let us scrutinize the evidence-on-record as well as the judgment passed by the learned Member, MACT.

18. 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 opposite direction and coming towards opposite and wrong direction hit the other vehicle i.e. the Spark causing grievous injury on the person of the claimant. Further, the claimant/respondent adduced his own evidence as PW-1 wherein it is alleged Page No.# 9/12

that at the relevant time of accident wherein he was an occupant of the Spark when the offending vehicle came in a very high speed and coming on the wrong side had knocked the Spark car for which the accident occurred and immediately after the accident he became unconscious. But, there is no cross- examination to the extent that the accident occurred due to the rash and negligent driving of both the vehicles or there was any contributory negligence on the part of the other vehicle. Thus, there is no evidence to rebut the plea of the claim that the accident occurred only due to rash and negligent driving of the offending vehicle which knocked the other vehicle coming in a very high speed and towards the wrong direction. He was also not put any question in regards to the fake or invalid driving license of the driver of the offending vehicle.

19. However to substantiate the plea, the insurance company/appellant had adduced two DWs in support of their case. The DW-1 is the investigator of the New India Insurance Company who investigated the case and as per him during investigation he visited to the office of the DTO, Ukhrul, Manipur to verify the Driving License and during the verification it was found that the Driving License was forged and fake. In that regard the DTO, Manipur has also given a written confirmation. Accordingly, he exhibited the Exhibit-A - the verification reply received from the DTO, Ukhrul, Manipur. From his cross evidence it is seen that he visited the house of the owner of the vehicle. But, the owner did not give the statement. Further, one Administrative Officer of New India Insurance Company had also adduced her evidence as DW-2 who also deposed to the extent that as per the verification report received from the DTO, Ukhrul, Manipur the license was found to be incorrect and forged. Thus, the owner of the vehicle also allowed the person to drive the vehicle without having any valid Driving License Page No.# 10/12

and thus violated the terms of the policy condition and hence the company is not liable to indemnify the claimant of the petition. However, she admitted in her cross-examination that as per the policy condition the victim was a third party and her evidence is based on the report of the investigator. Thus these two DWs had only deposed to prove or to substantiate their plea that the driver had no valid Driving License at the relevant time of incident. But, there is no evidence to the extent that there was contributory negligence on the part of the other vehicle to make liable to pay 50% of the awarded compensation.

20. 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 the PW-1/claimant the offending vehicle/Truck came in a very high speed and coming towards the wrong direction had knocked down the other vehicle which causing the road traffic accident.

21. 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:-

"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.

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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."

22. 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 may 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. This part of the evidence is also discussed by the learned Court below and accordingly it is seen that no officials from DTO came to adduce the evidence or to prove the verification report issued by the said officer. In the same time it has also been held that there is no dispute that at the relevant time of incident that there was a valid insurance policy covering the third party. It is seen that though the verification report was exhibited by DW-1, but the DTO or any officer from the office of the DTO, Manipur was not called for any witness to prove the exhibit. Further, from the Exhibit-A it is seen that there is a hand written correction in the said verification report but no initial has been put by anyone to held that the hand written correction was done by the DTO or any other official from the office of the DTO at the time of filing the verification report on the basis of the RTI report.

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23. Thus it is seen that though the DWs-1 & 2 had exhibited the Verification Report as Ext.-A but, it is not proved by calling the officials from the office of the DTO, Manipur nor it was proved by bringing any register maintained in the office of the DTO to prove the contents of the Ext.-A. Further, it is seen that DW-1 is the Investigating Officer who applied for the verification report through RTI and DW-2 had deposed before the Court only on the investigating report by the Investigating Officer and it seems that the DW-2 has no personal knowledge in regards to the investigation done by the Investigating Officer (DW-1).

24. 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 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.

25. Accordingly, this Court finds no reason to make any interference in the judgment and award passed by the learned Member, Motor Accident Claims Tribunal No. :1, Kamrup, in MACT Case No. 265/2015 and stands upheld. The appellant is hereby allowed to withdraw the statutory deposit amounting to Rs. 25,000/-. Registry to do the needful.

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

JUDGE

Comparing Assistant