Page No.# 1/9 vs Babita Nath And 2 Ors H on 11 March, 2026

                                                                            Page No.# 1/9

GAHC010195422023




                                                                      2026:GAU-AS:3587

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

                              Case No. : MACApp./110/2025

            NATIONAL INSURANCE COMPANY LTD.
            HAVING ITS REGISTERED OFFICE AND HEAD OFFICE AT 3, MIDDLETON
            STREET KOLKATA AND ITS REGIONAL OFFICE AT G.S. ROAD,
            BHANGAGARH, GUWAHATI.



            VERSUS

            BABITA NATH AND 2 ORS H
            W/O LATE PROMUD NATH, VILL.- HOWLY GAON, P.S.- BARPETA, DIST.-
            BARPETA, PIN- 781301, ASSAM.

            3:KMC CONSTRUCTION LTD.
             SUJATA APARTMENT
             F BLOCK
             FIRST FLOOR CHRISTIAN BASTI
             GUWAHATI
             DIST.- KAMRUP (M)
            ASSAM
             PIN- 781005

Advocate for the Petitioner   : MR. R GOSWAMI, MS. P BORTHAKUR,MS. M SAIKIA

Advocate for the Respondent : MR. K SARMA (r-1), MR. S BORUAH (r-1)




             Linked Case : I.A.(Civil)/915/2025

            NATIONAL INSURANCE COMPANY LTD.
            HAVING ITS REGISTERED OFFICE AND HEAD OFFICE AT 3
                                                        Page No.# 2/9

MIDDLETON STREET KOLKATA AND ITS REGIONAL OFFICE AT G.S. ROAD
BHANGAGARH
GUWAHATI.


VERSUS

BABITA NATH AND 2 ORS H
W/O LATE PROMUD NATH
VILL.- HOWLY GAON
P.S.- BARPETA
DIST.- BARPETA
PIN- 781301
ASSAM.

2:RAM CHANDRA MUKHI
S/O SRI MUSARA MUKHI

VILL.- KHATALBARI
P.S.- NALBARI
DIST.- NALBARI
ASSAM
PIN- 781335.

3:KMC CONSTRUCTION LTD.
SUJATA APARTMENT
F BLOCK
FIRST FLOOR CHRISTIAN BASTI
GUWAHATI
DIST.- KAMRUP (M)
ASSAM
PIN- 781005.
------------

Advocate for : MR. R GOSWAMI Advocate for : appearing for BABITA NATH AND 2 ORS H

Linked Case : I.A.(Civil)/281/2024

NATIONAL INSURANCE COMPANY LTD.

HAVING ITS REGISTERED OFFICE AND HEAD OFFICE AT 3 MIDDLETON STREET KOLKATA AND ITS REGIONAL OFFICE AT G.S. ROAD BHANGAGARH GUWAHATI.

VERSUS Page No.# 3/9

BABITA NATH AND 2 ORS.

W/O LATE PROMUD NATH

VILL.- HOWLY GAON P.S.- BARPETA DIST.- BARPETA PIN- 781301 ASSAM.

2:RAM CHANDRA MUKHI S/O SRI MUSARA MUKHI

VILL.- KHATALBARI P.S.- NALBARI DIST.- NALBARI ASSAM PIN- 781335.

3:KMC CONSTRUCTION LTD.

SUJATA APARTMENT F BLOCK FIRST FLOOR CHRISTIAN BASTI GUWAHATI DIST.- KAMRUP (M) ASSAM PIN- 781005.

------------

Advocate for : MR. R GOSWAMI Advocate for : MR. K SARMA (r-1) appearing for BABITA NATH AND 2 ORS.

BEFORE HONOURABLE MR. JUSTICE SANJEEV KUMAR SHARMA

Date on which judgment is reserved: 26.02.2026 Date of pronouncement of judgment: 11.03.2026 Whether the pronouncement is of the operative part of the judgment?: No Whether the full judgment has been pronounced: Yes Page No.# 4/9

JUDGEMENT & ORDER (CAV)

1. Heard Mr. R. Goswami, learned counsel for the petitioner. Also heard Mr. K. Sarma, learned counsel for the respondent No.1.

2. This appeal by the insurance company is directed against the judgment and award dated 09.04.2018 and order dated 20.06.2023 passed by the learned Member, MACT, Barpeta in MAC Case No. 51/2013.

3. Although an order dated 20.06.2023 as aforesaid has been mentioned in the Cause-title of the instant appeal, no prayer for setting aside the same has been made in the prayer portion of the instant appeal. Hence the present will be treated as an appeal against the impugned judgment and award dated 09.04.2018 only.

4. The facts of the case giving rise to the impugned judgment and award may be briefly outlined.

As per the version of the claimant, the husband of Respondent No.1/Claimant died as a result of a motor vehicle accident on 17.05.2011 while he had been pillion riding on his vehicle bearing Registration No.AS-15/D-9760 (Motor cycle) to go to Howly from Pathsala. The accident occurred while the deceased reached in front of Pathsala C.H.C. where suddenly a vehicle bearing Registration No.AS-15/C-2478 (Dumper) coming from behind hit the motor cycle in which the deceased was travelling. As a result of the said accident, the husband of Respondent No. 1/claimant sustained grievous injuries on his person and died on the spot. The vehicle bearing Registration No. AS-15/C-2478 (Dumper) was owned and driven by Respondent Nos.3 & 2 and was insured by the Appellant.

That the Learned Member, MACT, Barpeta was pleased to pass the Judgment Page No.# 5/9

and the Award in MAC Case No.51/2013 on 09.04.2018 for Rs.19,16,824.00 with 9% interest against the Insurer/appellant.

5. Being aggrieved, the instant appeal has been preferred by the insurance company.

6. The principle ground on which the challenge has been made to the impugned judgment and award is that the appellant/insurance company never received any notice from the Court in connection with the aforesaid case and was totally unaware about the proceedings. It is further the contention of the appellant that the address of the appellant/insurance company as mentioned in the judgment is not at all correct as there is no such office of the appellant at the said address and as such, due to non-service of notice, the appellant could not appear before the learned trial Court which proceeded ex-parte against the appellant on a wrong finding that the insurance company was absent without steps. Although, it was clearly mentioned in the order dated 27.07.2017 that notice issued to the O.P No. 3 (i.e. the Appellant Insurance Company) was returned without proper service and order was also passed to take fresh steps on all the opposite parties fixing on 27.07.2017 for SR, but surprisingly on the said date, the order of ex-parte hearing was passed.

7. I have heard Mr. R. Goswami, learned counsel for the appellant and Mr. K. Sarma learned counsel for the claimant/respondent No.1. The remaining respondent No. 3 is unrepresented whereas the name of the original respondent No. 2 has been struck off.

8. Mr. Goswami, learned counsel for the appellant submits that the impugned order has been passed behind the back of the appellant as a result of fraud practiced by the claimant/respondent No. 1 who had submitted a wrong address of the appellant and the Court also without proper consideration of the entire Page No.# 6/9

matter proceeded with the suit ex-parte despite absence of proof of service as against the or in respect of the appellant/insurance company.

9. It is further submitted that there was no valid insurance policy in respect of the offending vehicle as on the date of the alleged accident, which fact could not be brought to the notice of the learned Tribunal due to non receipt of notice by the insurance company regarding the institution of the aforesaid case.

10. It is pertinent to note that the grounds of appeal mentioned in the memo of appeal do not refer to the merits of the findings of the learned Tribunal below and the challenge therefore, is confined to the aspect of non service of notice to the appellant company resulting in an ex-parte judgment against the appellant insurance company.

11. Mr. K. Sarma, learned counsel for the respondent No.1 has taken the Court to Annexure-2 of the present memo of appeal which is an order dated 20.06.2023 passed in Misc.(J) Case No. 03/2023 which was registered on the basis of an application filed by the appellant insurance company for setting aside of the ex-parte judgment dated 09.04.2018.

12. Mr. Sarma, submitted that the said application was submitted seven years after the passing of the award without any application for condonation of the delay and therefore the same was rightly rejected by the learned tribunal below.

13. The aforesaid order dated 20.06.2023 may be reflected here in below:-

20.06.2023 The petitioner- Insurer is unrepresented. The claimant is represented by the engaged counsel. I have perused the petition No.440/23 filed by the OP Insurance Company u/o IX Rule 13 of the CPC for setting aside the exparte Judgment dated 09.04.2018.

I have also perused the objections filed by the claimant side and heard both the sides.

Page No.# 7/9

On perusal of the case record it is found that the said exparte Judgment was passed on 09.04.2018 and it was directed that the copy of Judgment and order be communicated to the O.P.s. but thereafter the Op Insurance Company filed the petition on 17.02.23 stating that only on 01.02.23 the OP Insurance Company came to know about the said Judgment without mentioning any further details regarding the manner and source of their knowledge. On the other hand, from the judgment dated 09.04.2018 it is found that it was mentioned therein that the O.P.s did not appear to contest the case inspite of receipt of notice. It may be mentioned here that the burden is upon the OP Insurance Company to establish that it came to have knowledge about the decree on 01.02.23 and thereafter filed the application dated 17.02.23-to set aside the same but the OP Insurance Company failed to discharge its burden in this regard and merely quoted "a date of knowledge" and taking into consideration all the facts and circumstances, I am of the opinion that the OP Insurance Company could not justify the long absence and delay on its part and therefore I decline to give any relief to the petitioner- Insurance Company at this stage and accordingly the said petition No.440/23 stands rejected. The OP Insurance Company is directed to pay the awarded amount with interest to the claimant within the next 45 days.

Hence, this Misc.(J) case is disposed of on contest.

14. The aforesaid order dated 20.06.2023 is an appealable order under Order XLIII Rule 1 (d) CPC but admittedly no such appeal against the said order dated 20.06.2023 has been preferred by the present appellant/insurance company and the same has attained finality upon expiry of the period of limitation. Even otherwise, upon a perusal of the said order, I do not find any infirmity therein as the insurance company grossly failed to present as establish any sufficient cause to explain the delay of about seven years, other than a bald statement regarding date of knowledge of the impugned judgment.

15. A perusal of the memo of appeal would leave no one in any manner of doubt that the same is in substance a challenge to the aforesaid order dated Page No.# 8/9

20.06.2023 rejecting the application of the insurance company under Order IX Rule 13 which otherwise ought to have been challenged by way of an appeal under Order XLIII Rule 1(d) CPC. But the appellant has chosen to prefer an appeal under Section 173 of the Motor Vehicles Act against the final judgment and award of the learned MACT, without however, questioning the said judgment on merits. Therefore, any interference in the present appeal by this Court would amount to exercising powers under Order XLIII Rule 1(d) CPC without there being any appeal under the said provision before this Court.

16. While it is true that technicallity should not stand in the way of doing substantial justice, the said principle is to be applied after taking into consideration the facts and circumstances of each case and further it does not follow from the said principle that all established procedures of law can be given a go bye in the name of doing substantial justice and in the facts of the present case, the procedural lapses on the part of the appellant cannot be brushed aside as the said procedures involved are mandates of the law and disregarding them would also affect the rights of the respondent side.

17. Thus situatned, I do not find any scope for interference in the present appeal which stands dismissed.

18. The appellant insurance company is directed to deposit the due amount into the bank account of the claimant within a period of 45 days from today including of course the interest accrued.

19. Appeals stands dismissed.

JUDGE Page No.# 9/9

Comparing Assistant