Shriram General Insurance Co. Ltd. Vs Dulumoni Deka and 6 Ors.

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GAHC010138022024

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2025:GAU-AS:8016

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

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Case No. : MACApp./349/2024

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SHRIRAM GENERAL INSURANCE CO. LTD 1000 E/8, RIICO INDUSTRIAL AREA, SITAPURA, JAIPUR, RAJASTHAN302022 AND HAVING A BRANCH OFFICE AT B.R ARCADE, 3RD FLOOR, 21 JANAPATH, ULUBARI, GUWAHATI- 781007.

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VERSUS

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DULUMONI DEKA AND 6 ORS. W/O LATE TARANI KANTA DEKA, VILL.- BARGAON, P.O.- DORAKOHARA, P.S.- KAMALPUR, DIST.- KAMRUP, ASSAM, PIN781380.

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2:JINA DEKA D/O LATE TARANI KANTA DEKA

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VILL.- BARGAON

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P.O.- DORAKOHARA P.S.- KAMALPUR DIST.- KAMRUP ASSAM PIN- 781380. (BEING MINOR REP. BY HER LEGAL GUARDIAN MOTHER RES. NO. 1).

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3:JINKON DEKA S/O LATE TARANI KANTA DEKA

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VILL.- BARGAON

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P.O.- DORAKOHARA P.S.- KAMALPUR DIST.- KAMRUP ASSAM PIN- 781380. (BEING MINOR REP. BY HIS LEGAL GUARDIAN MOTHER RES. NO. 1). 4:JUMAN DEKA D/O LATE TARANI KANTA DEKA VILL.- BARGAON P.O.- DORAKOHARA P.S.- KAMALPUR DIST.- KAMRUP ASSAM PIN- 781380. (BEING MINOR REP. BY HIS LEGAL GUARDIAN MOTHER RES. NO. 1). 5:DAYA BALA DEKA M/O LATE TARANI KANTA DEKA VILL.- BARGAON P.O.- DORAKOHARA P.S.- KAMALPUR DIST.- KAMRUP ASSAM PIN- 781380. 6:ARIF HUSSAIN S/O AKHTA HUSSAIN VILL.- CHANGSARI P.S.- CHANGSARI DIST.- KAMRUP ASSAM PIN- 781101. 7:SISHU RAM THAKURIA S/O LATE PHANIDHAR THAKURIA VILL.- GUIYA P.S.- KAMALPUR

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DIST.- KAMRUP ASSAM PIN- 781380

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For the Appellant(s) : Mr. R. Goswami, Advocate For the Respondent(s) : Mr. S. Das, Advocate

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Date of Hearing : 13.06.2025 Date of Judgment : 13.06.2025

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BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

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JUDGMENT AND ORDER (ORAL)

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Heard Mr. R. Goswami, the learned counsel appearing on behalf of the appellant Insurance Company and Mr. S. Das, the learned counsel appearing on behalf of the respondent Nos. 1 to 5. None appears on behalf of the respondent Nos. 6 and 7.

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This is an appeal filed under Section 173 of the Motor Vehicles Act, 1988 (for short ‘the Act of 1988’) challenging the judgment and award dated 08.04.2024 passed by the learned Member, Motor Accident Claims Tribunal, No.1, Kamrup (Metro) at Guwahati (for short ‘the learned Tribunal’) whereby the learned Tribunal awarded an amount of Rs.53,38,941/- along with interest @9% per annum from the date of filing of the evidence on affidavit of the PWs i.e. 26.11.2019 till realization.

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Mr. R. Goswami, the learned counsel appearing on behalf of the appellant Insurance Company submitted that by way of the present appeal, the appellant Insurance Company urges the following grounds of objection:

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(i) The findings so arrived at by the learned Tribunal in respect to Issue No.(i) without perusal of the GD Entry was not in accordance with law and as such is required to be interfered with. Elaborating the said submission, the learned counsel submitted that the FIR in the case was filed after 27 days and as such, the GD Entry was a very vital piece of evidence which ought to have been taken into consideration by the learned Tribunal. The learned counsel further submitted that steps were taken on behalf of the appellant Insurance Company upon the Officer In-charge, Kamalpur Police Station for production of the GDE Extract pertaining to Kamalpur P.S. Case No.20/2018. But in spite of taking steps on three different occasions, the Officer In-charge, Kamalpur Police Station did not produce the said GD Entry. He therefore submitted that this is a case where there is a strong likelihood that the alleged accident did not happen and is a case of a fraudulent claim.

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(ii) Mr. R. Goswami, the learned counsel further submitted that though the claim proceedings was filed on 02.02.2018 and the learned Tribunal have also acknowledged that the appellant Insurance Company was not involved in the delay of the said proceedings therefore awarding of interest from the date of filing of the evidence on affidavit filed by the PWs i.e. 26.11.2019 without taking into account that during the COVID period, the functioning of the Courts stopped, the interest during this period ought to have been waived.

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(iii) The learned counsel for the appellant submitted that the learned Tribunal erred in law in awarding interest on future prospects.

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At the outset, the learned counsel appearing on behalf of the claimants submitted that the respondent Nos. 1 to 5 who are the claimants have no objection in waiving of their interests during the period of the COVID and calculating the interest w.e.f. 01.03.2022 taking into account that from 15.03.2020 to 28.02.2022, there was COVID pandemic. The learned counsel for the respondent Nos. 1 to 5 therefore submitted that the rate of interest ought not to be altered or interfered with in view of concession made by the claimants.

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In view of the above submissions so made by the learned counsel appearing on behalf of the respondent Nos. 1 to 5, the second ground of objection which is taken by the appellant Insurance Company appears to have been redressed.

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The question therefore arises as to whether interference to the impugned judgment and award dated 08.04.2024 is called for on the first ground of objection as noted above. In this regard, this Court finds it relevant to take note of the brief facts which led to the filing of the present appeal.

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On 25.12.2017, at around 1:30 P.M., one Shri Tarani Kanta Deka (since deceased) was knocked down by a motorcycle bearing Registration No. AS01/DH-3495 while he was proceeding by the left side of Nau Kuchi Road at Boragaon to answer the nature’s call. The injuries so suffered by Late Tarani Kanta Deka were grievous in nature for which, Late Tarani Kanta Deka succumbed to his injuries. The record reveals that on 25.12.2017,

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information was given to the Kamalpur Police Station in respect to the said accident on the basis of which GDE No.511/2017 was entered. On the basis of the GDE No.511/2017 dated 25.12.2017, post-mortem of Late Tarani Kanta Deka was carried out wherein it was mentioned that the cause of death was vehicular accident.

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It is further relevant to take note of that subsequent thereto, on 21.01.2018, the FIR was lodged by the claimant No.1 and on the basis thereof, Kamalpur P.S. Case No.20/2018 was registered under Section 279/304A of the Indian Penal Code. The record further reveals that pursuant to the investigation, charge sheet bearing No.02/2018 dated 30.01.2018 was submitted. The record also reveals that prior thereto, on 17.01.2018, the Investigating Officer had seized the concerned motorcycle as would appear from the seizure list being MR NO.5/18. It is also seen that on 17.01.2018 itself, the MV report was submitted. Subsequent thereto, the claimants instituted the present claim proceedings on 02.02.2018.

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The record reveals that notices were issued upon all the three opposite parties. The OP Nos. 1 and 2 who were the driver and owner respectively of the offending motorcycle bearing Registration No. AS-01/DH-3495 had filed their respective written statements. It was categorically mentioned that the vehicle in question was duly insured with the appellant Insurance Company and the driver concerned had a valid Driving License. There was no denial to the accident but what was denied was the allegation of rash and negligent driving.

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On behalf of the appellant Insurance Company written statement was filed raising the usual defences. On the basis of the pleadings, the learned Tribunal framed two issues which being relevant are reproduced herein under:

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“(i) Whether the victim Tarani Kanta Deka had died in a road traffic accident on 25.12.2017 at about 1.30 PM at Boragaon, Na-Kushi PWD Road under Kamalpur PS that had been caused due to negligence of OP1, the rider of the alleged offending motorcycle, bearing registration No.AS-01/DH-3495?

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(ii) Whether the claimants are entitled to get any compensation and if yes, to what extent and by whom amongst the opposite parties the said compensation amount is to be paid?”

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Taking into account the ground of objections which this Court is presently dealing with, the decision in respect to Issue No. (i) assumes importance as well as on the discussion on the evidence so adduced.

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On behalf of the claimants, there were three witnesses who were examined. The claimant No.1 submitted her examination-in-chief by way of an affidavit wherein the following documents were exhibited:

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Exhibit 1 : Accident Information Report, Exhibit 2 : Post-mortem Report, Exhibit 3 : Salary certificate, Exhibit 4 to 4(2) : Birth certificates of daughters and sons, Exhibit 5 : Voter ID of the Claimant No.1, Exhibit 6 : Pan Card of Smti. Daya Bala Deka/Claimant No.5, Exhibit 7 : Identity card of Late Tarani Kanta Deka, Exhibit 8 : Pan Card of Late Tarani Kanta Deka, and

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Exhibit 9 : Certified copy of FIR.

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The Claimant Witness No.1 was cross-examined but nothing substantial can be culled out. The claimant No.2 was the eye witness who had seen the accident. The opposite parties No.3 though cross-examined but nothing substantial could be brought in their favour.

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The claimant witness No.3 was the Chief Office Superintendent in the Engineering Department of the NF Railway who appeared to prove the salary statement, the employment details of Late Tarani Kanta Deka. It is further relevant to take note of that the Claimant Witness No.1 adduced further evidence pursuant to the leave taken from the learned Tribunal and by way of the said evidence, the Claimant Witness No.1 exhibited Exhibit 9(1) to 9(7) which were the FIR, Charge-sheet, seizure list, Jimmanama, MVI report and postmortem report. Pursuant to the submission of the said additional affidavit, the record reveals that the appellant Insurance Company declined to cross-examine the Claimant Witness No.1.

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On behalf of the appellant Insurance Company, the insurance investigator had filed an evidence on affidavit wherein it was mentioned that the FIR was lodged after 27 days and there was no same day GD Entry which could be collected in spite of RTI applications. However, those RTI applications so mentioned were not brought on record by way of any evidence. It was further stated in the examination-in-chief by way of affidavit that the motorcycle bearing Registration No.AS-01/DH-3495 was not involved in the accident in question as he could learn after carrying out due investigation. Be that as it may, neither the investigation report was brought

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on record nor there was any mention from whom the said investigator collected the information.

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It is also relevant to take note that during his cross-examination, he had categorically stated that he met the claimants, the owner of the vehicle as well as the driver of the vehicle and also went to the police station and all persons stated that accident is true. It was also stated during his crossexamination that the diseased Late Tarani Kanta Deka died due to the accident occurred on 25.12.2017.

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At this stage, this Court finds it relevant to take note of a petition filed by the appellant Insurance Company before the learned Tribunal bearing Petition No. 2138/2022 with a prayer to direct the concerned Police Station i.e. Kamalpur Police Station to produce the relevant GDE Extract. It is relevant to take note that the learned Tribunal did not pass any order in the favour of the appellant Insurance Company as would be seen from the order dated 27.05.2022 rather the appellant insurance company was given the liberty to take steps on their own.

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During the course of the hearing, Mr. R. Goswami, the learned counsel placed before this Court some of the notices which were issued by the learned Tribunal. But the question arises how could these notices at all be issued when there was no direction issued by the learned Tribunal to the Officer In-charge of Kamalpur Police Station to produce the relevant GDE Extract and more so when the appellant Insurance Company was directed to take their steps on their own. Therefore, the photocopies of those notices

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which were produced by Mr. R. Goswami, the learned counsel in the opinion of this Court do not have any value.

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From the materials on record and the evidence so adduced, it is clear that there was an accident which took place on 25.12.2017 and on account of the accident, Late Tarani Kanta Deka sustained grievous injury and succumbed to his injuries and expired. The evidence on record more particularly the evidence of PW2 categorically shows that the accident occurred on account of rash and negligent driving of the motorcycle.

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This Court have duly taken note of the manner in which the learned Tribunal have dealt with Issue No.(i) and after perusing the evidence on record, this Court is also of the opinion that the accident occurred on account of the rash and negligent riding of the motorcycle bearing Registration No.AS-01/DH-3495. Therefore, the first ground of objection which has been taken by the appellant Insurance Company cannot be a good ground of objection to interfere with the impugned judgment and award.

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This Court has also perused the discussions so made by the learned Tribunal as regards the Issue No.(ii) and the compensation so arrived at to the tune of Rs.53,38,941/- in the opinion of this Court is the just and fair compensation in terms with the well-settled principles of law.

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Now coming back to the issue pertaining to the interest. It has been agreed to by the claimants not to claim interest with effect from 26.11.2019

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but with effect from 01.03.2022. The interest @9% per annum so awarded by the learned Tribunal shall be w.e.f. 01.03.2022.

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This Court now takes up the third ground of objection which relates to interest on future prospects. The learned Coordinate Benches of this Court have held that there shall be no interest on future prospects. The learned counsel for the claimants does not contest this proposition. Accordingly, this Court holds that there shall be no interest on future prospects w.e.f. 01.03.2022 to 08.04.2024. However, there shall be interest on the amount on account of future prospects w.e.f. 09.04.2024 till actual payment. The reason for allowing interest on future prospects w.e.f. 09.04.2024 is due to the fact that the amount adjudged as future prospects upon the delivery of the judgment on 08.04.2024 becomes a part of the compensation and as such, the said amount has to carry interest.

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Accordingly, the instant appeal stands disposed off with the following observations and directions:

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(i) The claimants herein would be entitled to the amount of Rs.53,38,941/- which is the just and fair compensation.

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(ii) The interest payable shall be @9%.

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(iii) There shall be interest @9% per annum on the amount of Rs.41,70,579/- w.e.f. 01.03.2022 till actual payment.

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(iv) There shall be interest @9% per annum on Rs.11,68,362/- w.e.f.

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09.04.2024 till actual payment.

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(v) The entire awarded amount be deposited by the Appellant Insurance Company before the learned Tribunal within 6 (six) weeks from today.

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(vi) Upon deposit of the said amount and acknowledgement produced before the Registry of this Court, the statutory deposit be refunded to the Appellant Insurance Company.

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(vii) Any amount deposited earlier shall be set off.

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(viii) The learned Tribunal pursuant to the deposit so made apply the said amount in the manner discussed in the second sub-paragraph of paragraph No.23 of its judgment and award dated 08.04.2024.

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(ix) The Registry is directed to forthwith return the LCR to the learned Court below.

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JUDGE

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Comparing Assistant

Shriram General Insurance Co. Ltd. v. Dulumoni Deka and 6 Ors.

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Shriram General Insurance Co. Ltd. v. Dulumoni Deka and 6 Ors.

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