The Oriental Insurance Co. Ltd. Vs Saraju Borah and 5 Ors.

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GAHC010008492017

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2026:GAU-AS:8059

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IN THE GAUHATI HIGH COURT HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) MACApp./97/2018

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The Oriental Insurance Co. Ltd., (A Central Govt. Undertaking) Having Its Regional Office At Guwahati, Ulubari,Guwahati-781007, Rep. By The Asstt. Manager, Gauhati Regional Office, Ulubari,Guwahati-781005.

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…..Appellant

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-Versus-

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Saraju Borah, W/o-Poresh Borah, R/o. Thengal Gaon, P.S. Kamargaon, Dist. Golaghat, Assam, Pin-785621.

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4: Poresh Borah, S/o, Lt Ratneswar Borah, R/o. Thengal Gaon, P.S. Kamargaon, Dist. Golaghat, Assam, Pin-785621.

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5: Md. Faijul Ali, S/o-Md. Tayeb Ali, Vill. Letteku Chapori, P.O. Lettekujan,

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Dist. Golaghat, Assam, Pin-785613.

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The Manager, Bajaj Allianz General Insurance Co. Ltd., Guwahati Branch, 2B, 2^nd Floor, Centre Point, G.S. Road, Ulubari, Guwahati, Kamrup(M), Assam, Pin-78100. ……Respondents

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^WITH CO/44/2019

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^{Smti. Saraju Borah,} W/o-Sri Poresh Borah, R/o, Thengal Gaon, P.S. Kamargaon, Dist. Golaghat, Assam, Pin-785619. …..Cross Objector

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^-Versus-

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^{Oriental Insurance Company Limited,} Having Its Regional Office At G.S. Road, Ulubari, Guwahati-781007, Rep. By Its Regional Manager.

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Poresh Borah, S/o, Lt Ratneswar Borah, R/o. Thengal Gaon, P.S. Kamargaon, Dist. Golaghat, Assam, Pin-785621. (Owner of the Vehicle No. AS-03-H-

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5278(I20)).

Md. Faijul Ali, S/o-Md. Tayeb Ali, Vill. Letteku Chapori, P.O. Letekujan, Dist. Golaghat, Assam, Pin-785613. Driver of the Vehicle No. AS-03-H-5278(I20)).

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The Manager, Bajaj Allianz General Insurance Co. Ltd., Guwahati Branch, 2B, 2^nd Floor, Centre Point, G.S. Road, Ulubari, Guwahati, Kamrup(M), Assam, Pin-781007. (Insurer of Vehicle No. AS-03-H-5278(I20)). ……Respondents

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For Appellant Ms. R.D. Mozumdar, Advocate. For Respondents 1. Mr. M. Dutta, Advocate. 2. Mr. P. Hazarika, Advocate. Date of Hearing : 13.03.2026. Date of Judgment : 08.06.2026

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BEFORE

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HON’BLE MR. JUSTICE MRIDUL KUMAR KALITA

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JUDGMENT AND ORDER

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[1] Heard Ms. R.D. Mozumdar, the learned counsel for the appellant in MAC App No. 97/2018 as well as for the respondent in Cross Objection No. 44/2019. Also heard Mr. M. Dutta, the learned counsel for the respondent no. 1 in MAC Appeal No. 97/2018 as well as for the cross objector in the Cross Objection No. 44/2019 and Mr. P. Hazarika, the learned counsel for the respondent no. 6 in both the cases.

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[2] By this common judgment, this Court proposes to dispose of both the MAC appeal No. 97/2018 as well as the Cross Objection No. 44/2019 as both arise from common judgment and Award dated 10/07/2017 passed by the Motor Accident Claims Tribunal, Golaghat, in M.A.C.T Case No. 29/2014, whereby the said Motor Accident Claims Tribunal had awarded a compensation amount of Rs. 1,70,000/- to the claimant (Cross Objector). The awarded amount was directed to be shared in the ratio of 60% by the appellant of the MAC Appeal No. 97/2018 and 40% by the respondent no.6 in Cross Objection No. 44/2019.

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[3] The MAC appeal No. 97/2018 has been filed by the Oriental Insurance Company Ltd. impugning the quantum of the compensation awarded to the claimant as well as the extent of share which it was directed to bear. Whereas, the Cross Objection has been filed by the claimant seeking enhancement in the quantum of the compensation awarded to the claimant by the impugned judgment and Award.

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[4] The facts relevant for consideration of the instant appeal as well as the Cross Objection, in brief, are that on 03/10/2013 at about 2:45 a.m., the claimant along with her other family members were travelling in ani-20 Car bearing registration No. AS-03-H-5278 from Sivasagar towards their residence. When the said car reached near Shantipur on National Highway No. 37 under Dergaon Police Station, it dashed against the backside of a stationary truck bearing registration No. AS-25/6583. As a result of the accident, the claimant sustained injuries on her person and had to be immediately taken to hospital.

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[5] Thereafter, the claimant approached the Motor Accident Claims Tribunal at Golaghat by filing an application under Section 166 of the Motor Vehicles Act, 1988 claiming compensation for the injuries sustained by her in the aforesaid accident. The present appellant as well as the respondent no. 6 contested the claim by filing written statements, wherein they denied their liability to pay any compensation to the claimant.

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[6] Upon pleadings of the parties, the Motor Accident Claims Tribunal, Golaghat, framed the following issues :-

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(I) Whether there was any composite rash and negligent driving on the part of the drivers of vehicle No.AS-25/6583

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(Truck) and No.AS-03-H/5278 (i20 Car) that caused the accident on 03.10.2013, at about 2:45 A.M., near Santipur, on NH-37 under Dergaon Police Station, in the District of Golaghat, Assam?

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(II) Whether Smti. Saraju Borah sustained grievous injuries as a result of the said accident:

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(III) Whether the claimant is entitled to any compensation? If so, what would be the proper quantum and payable by whom?

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(IV) Any other reliefs?

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[7] In support of her claim, the claimant examined herself as the sole witness and exhibited certain documents. Ultimately, by the impugned Judgment and Award, all the Issues were decided in favour of the claimant (Cross-Objector) and the appellant as well as the respondent no. 6 herein, were directed to pay compensation to the claimant in the manner as already described in the foregoing paragraphs.

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[8] Ms. R.D. Mozumdar, the learned counsel for the appellant in MAC Appeal No. 97/2018 has submitted that the Tribunal had erred in directing the appellant to pay 60% of the awarded amount to the claimant without ascertaining the extent of liability of the driver of the offending truck, which resulted in the accident. She also submits that the Tribunal also erred in ignoring the fact that though the claimant had

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produced vouchers regarding her medical expenditures to the extent of Rs. 28,689/-, however, the Tribunal without any basis had awarded an amount of Rs. 1,50,000/- against the medical expenditure incurred by the claimant in her treatment. She submits that this quantification of Rs. 1,50,000/- against the medical expenditure was without any basis.

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[9] She further submits that the evidence on record clearly shows that it was the driver of the i-20 vehicle, who was at fault and there is no evidence to indicate that the driver of the Truck was at fault. She submits the evidence that no parking lights were on, which was relied upon by the Tribunal, is hearsay evidence as the Driver of the i20 vehicle or any other independent witness was not examined to establish this fact. She submits that the CW-1 i.e. the claimant, who has deposed that there was no parking light, was herself sleeping when the accident occurred and she has categorically stated during her cross examination that she heard it from the driver of the i-20 vehicle that the parking lights were not on. However, the Driver of the i20 vehicle was not examined.

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[10] The learned counsel for the appellant in MAC Appeal No. 97/2018 further submits that the Tribunal failed to take into consideration the principle of “res ipsa loquitur” which implies that things speak for itself. She submits that the material on record indicates that the i-20 vehicle was on move when the

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accident occurred, therefore, it can be assumed that the headlights of the said vehicle were On and the Driver of the i20 vehicle had the last opportunity to avoid the accident. However, he failed to do so. She submits that under the aforesaid circumstances, even if any liability is imposed on the appellant, it may be only to the extent of 15% of the total awarded amount, which comes to Rs. 25,000/(approximately), which the appellant has already paid to the claimant.

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[11] On the other hand, Mr. M. Dutta, the learned counsel for the respondent no.1 has submitted that the Tribunal though quantified the compensation at a lower side, was right in attributing the negligence to a larger extent on the Driver of the Truck, which was parked in the National Highway in a “No Parking Area”. He submits that to disown the liability, neither the Driver of the Truck nor the Insurance Company i.e. the present appellant or the respondent no. 6 adduced any evidence. He submits that only evidence adduced during the enquiry was of the claimant, who has categorically stated in her deposition that it was raining at the time of the accident and the Truck was parked on the road at National Highway No. 37 in a „No Parking Zone‟ without flashing any signal or road barrier at night hours. He submits that this evidence could not be contradicted by either of the Insurance Company during cross examination.

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[12] He further submits that the Tribunal erred while assessing the quantum of compensation paid to the claimant. He submits that in the aforementioned accident, the claimant sustained grievous injuries including the fracture of nasal bone, multiple facial injuries, including injury to the right eye resulting in low vision and deep cut injuries on the right palm. It is also submitted by the learned counsel for the respondent no.1 that after the accident the claim underwent prolonged treatment in different hospitals including Sanjivani Hospital, Chandraprabha Eye Hospital, at Jorhat, Nemcare Hospital at Guwahati, Mechi Eye Hospital at Nepal and Apollo Hospital at Chennai. He submits that considering the long duration of treatment, the compensation awarded to the claimant ought to have been on a higher side. He further submits that in ascertaining the quantum of compensation to be paid to the victim of a vehicular accident, the Tribunal ought to have taken the following into consideration :

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(2) Loss of earning during the period of treatment.

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(3) Damages for pain, suffering and trauma as a consequence of injuries.

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[13] Mr. M. Dutta, learned counsel for the respondent no.1 submits that though the Tribunal has awarded Rs.1,50,000/against the medical expenditure incurred by the claimant, however it was on a lower side. He also submits that considering the nature of injuries sustained by the claimant in the accident, the amount of Rs.20,000/- which was awarded against pain and suffering caused to the claimant as a consequence of injuries sustained by the claimant was also on a lower side.

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[14] He further submits that the claimant being a homemaker is also entitled to compensation against the head “Loss of Earning” due to the injuries sustained in the accident. He submits that since no fixed income can be shown of a homemaker, hence the Apex Court has recognized various methods which may be applied by the Court to fix a notional income for homemaker and it depend on facts and circumstances of each case. He submits that the principle has been recognized by the Apex Court in the case of “ Kirti and Another Vs. Oriental insurance Co. Ltd. ,” reported in “ (2021) 2 SCC 166.” He submits that one method of assessing the notional income of the claimant may be by treating her notional income as 1/3^rd of the income of her husband as was done by the Apex Court in the case of “ Arun Agarwal vs. National Insurance Company Limited ,” reported in “ (2010) 9 SCC 2018.” He further submits that since there is no fixed basis

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of ascertaining notional income of a homemaker, the homemaker may be treated equally with skilled worker and the notional income in respect of a skilled worker may be treated as notional income of a homemaker. He submits that the Government of Assam by it‟s Notification No. E- 238621/696 dated 14.06.2025 has fixed the monthly wages of skilled worker at Rs.15,031.89. He submits that since the said Notification is of the year 2025 and the accident had occurred in the year 2013, the notional income of a homemaker may be taken as Rs.10,000/-. He submits since from the period 03.10.2013 to 16.04.2014, i.e. for the period of 6 (six) months the claimant was under medical treatment, this period may be regarded as a period when she could not have done her normal work and as such, this period may be regarded as the period for which she could be awarded compensation on account of „Loss of Earning‟. In support of her submission he has cited the following rulings :

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(2) “ Reliance General Insurance Co. Ltd. vs.

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Parul Hazarika & Others ,” reported in “ 2022 (2) GLT 1109.”

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(3) “ Gunajit Nath vs. Hitesh Das & Others ,” (MANU/GH/0030/2026.

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(4) “ Kajal vs. Jagdish Chand & Others , “reported in “ (2020) 4 SCC 413.”

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[15] Mr. M. Dutta has also submitted that the interest of 6% directed to the paid on the awarded amount is also lower side and it may be enhanced to 9% per annum, as it corresponds to the actual bank lending rates at the time when the expenditure occurred.

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[16] On the other hand, Mr. P. Hazarika, the learned counsel for the respondent no.6 has submitted that the Tribunal has correctly assessed the compensation which was awarded to the claimant and the impugned Judgment and Award does not suffer from any infirmity and needs no interference by this Court in this appeal/cross-objection. He submits that the evidence of CW-1 clearly indicates that the offending vehicle was parked in the National Highway No. 37 in a No Parking Zone with no indicators. He submits that during crossexamination of CW-1, her deposition to the extent that the vehicle was parked in No Parking Zone could not be demolished by the appellant before the Motor Accident Claims Tribunal during inquiry. He also submits that as regard the cross-objection filed by the claimant, the Tribunal assessed the compensation rather on the higher side as the cash memos indicating the expenditure on treatment incurred by the appellant was only to the extent of Rs.28,689/- only, whereas the Tribunal awarded the compensation against the Head “Medical Expenditure” on a higher side at Rs.1,50,000/-.

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He further submits that regarding the plea of the claimant in the cross-objection for enhancement of the compensation awarded to the claimant on the ground that no compensation was awarded against the head “Loss of Earning”. He submits that merely sustaining an injury in an accident is not sufficient to come to a conclusion that there is a loss of earning capacity. He submits that for claiming compensation against the said head, it was incumbent on the part of the claimant to establish the fact that she was unable to perform her normal duties as a homemaker and thereby she sustained loss of earning. However, he submits that in her testimony as CW-1, no whisper about any such loss of earning or difficulty in performing day to day work has been stated by the claimant, therefore, the claimant is not entitled to get any compensation against the head “Loss of Earning” during the period of treatment. He submits that it is admitted by the claimant in her deposition that no medical certificate was produced by her to establish any permanent disability. Hence, the claimant did not suffer from any permanent disability and on that count also she is not entitled to get any compensation against the Head “Loss of Future Earnings”. He submits that for awarding compensation against the Head “Loss of Earning”, the Tribunal or this Court has to first ascertain as to what activities the claimant could not carry out in her day-to-day business for the injuries sustained in the aforesaid accident. However, to ascertain the same there is no material on record. To

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substantiate his submission, he has also relied upon the judgment of the Apex Court in the case of Raj Kumar (supra).

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[17] While replying to the submissions made by the learned counsel for the claimant, the learned counsel for the appellant Ms. R.D. Mozumdar has submitted that though in the CrossObjection, the cross-objector has taken the plea that the claimant was earning an amount of Rs.60,000/- per annum and same is claimed to have been not disputed by any one, however no such plea or any material was placed before the Tribunal during the inquiry. She further submits that even if it is assumed that the claimant is entitled to get compensation against the head “Loss of Earning”, she would be getting compensation only for 4 days during which she was hospitalized as an indoor patient. However, the Tribunal while awarding compensation against medical expenditure head, has awarded much more than that. She has also relied upon the ruling of the Apex Court in the case of Raj Kumar (supra) in making submission that the claimant has failed to produce any material during inquiry to show that she suffered loss of any earning. She also submits that the Apex Court in the aforesaid case has clearly observed that all injuries sustained in the motor vehicle accident may not result any loss of earning capacity and same has to be established by the claimant during her inquiry which the claimant has miserably failed. She therefore submits that the quantum of

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compensation should be reduced to the extent of actual expenditure incurred on medical expenses plus Rs.20,000/against the head “Pain and Suffering” which roughly comes to Rs.48,689/-. She further submits that the extent of liability of the appellant may be reduced to the extent of compensation already paid by the Insurance Company, i.e. Rs.25,000/which roughly comes to 15% of the total amount as proposed by her.

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[18] I have considered the submissions made by the learned counsel for both sides as have gone through the materials on record. I have also perused the judgment cited by the learned counsel for both sides in support of their respective submissions.

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[19] The first point to be determined in this appeal is as to whether the Motor Accident Claims Tribunal, Golaghat was right in affixing the liability to pay compensation on the present appellant and the respondent No. 6 at a ratio of 60: 40 between them. The second point to be determined in this appeal and cross objection is as to whether the quantum of compensation paid to the claimant by the Motor Accident Claims Tribunal, Golaghat in the impugned judgment and award is correct or not.

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[20] Let us first of all consider the first question for determination.

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[21] On going through the evidence available on record, it appears that the claimant while deposing as CW-1 has categorically stated that the truck bearing Registration No. AS25/6583was parked on the road without any flashing signal or road barrier in a no parking zone at night hours. During her cross examination, she has also deposed that at the time of accident, it was raining. Though the learned counsel for the appellant has submitted that the claimant was sleeping at the time of the accident. However, during her cross examination, she has categorically deposed that she was not sleeping. She has also deposed that the accident occurred as the truck was parked in a no parking zone and after the accident the driver of the truck fled away. Though she has stated that she came to know about the fact that the offending truck did not flash the signal light from the driver of the vehicle in which she was travelling and the said driver was not examined as a witness, however, her other testimony regarding parking of the vehicle in a no parking zone remained uncontroverted and as such the Motor Accident Claims Tribunal was correct in attributing negligence to the driver of the offending truck, which was parked in a no parking zone. Though the Motor Accident Claims Tribunal has observed in the impugned judgment that since the driver of the i-20 Car dashed the said vehicle against the truck which was in a stationary position, therefore, the negligence on the part of the driver of the i-20 Car was also

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not ruled out. However, the reasoning for apportioning the liability in the ratio 60:40 between the driver of the offending truck and driver of the i-20 Car is not explained in the impugned judgment.

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[22] Though the facts which emanates from the evidence on record indicates that there is composite negligence on the part of the driver of both the vehicles, namely, the parked truck as well as the i-20 Car, which dashed against it on a night when it was raining, however, it is not clear as to on what basis apportionment of the liability amongst joint tortfeasors at a ratio of 60:40 was done. As in case of a composite negligence both the tortfeasors are jointly and severally liable to pay compensation to the claimant. However, in absence of any specific material on record on the basis of which inter se liability amongst the joint tortfeasors is to be apportioned, this court is of considered opinion that same may be apportioned at the ratio of 50:50. Therefore, this court is of considered opinion that the appellant and respondent No. 6 Insurance Company are liable to pay the awarded compensation to the claimant at a ratio of 50:50.

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[23] As regards the compensation to be awarded in a case of personal injury arising out of a motor vehicular accident as in the present case, the Apex Court of India in the case of “ Raj Kumar (supra) has observed as follows:-

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“6. The heads under which compensation is awarded in personal injury cases are the following:

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Pecuniary damages (Special damages)

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(i) Expenses relating to treatment, hospitalisation, medicines, transportation, nourishing food, and miscellaneous expenditure.

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(ii) Loss of earnings (and other gains) which the injured would have made had he not been injured, comprising:

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(a) Loss of earning during the period of treatment;

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(b) Loss of future earnings on account of permanent disability.

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(iii) Future medical expenses.

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Non-pecuniary damages (General damages)

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(iv) Damages for pain, suffering and trauma as a consequence of the injuries.

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(v) Loss of amenities (and/or loss of prospects of marriage).

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(vi) Loss of expectation of life (shortening of normal longevity).

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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.”

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[24] In the instant case, the claimant has exhibited medical expenditure statement as Exhibit-9 which indicates that she has incurred an amount of Rs. 28,689/- on her medical bills which does not include the cost of attendance, transportation

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and fooding during such treatment. However, the evidence on record reveals that the claimant was treated as an indoor patient in the Sanjivani Hospital from 03.10.2013 to 07.10.2013 and thereafter as an outdoor patient in various hospitals at Jorhat, Guwahati, Golaghat, Nepal and Chennai, which has been considered by the Tribunal while assessing the expenses incurred in the treatment of the injuries sustained by the claimant and, thereby, awarded a lump sum amount of Rs. 1,50,000/- against the expenses incurred to the treatment, hospitalization, medicines, transportation, nourishing food and other miscellaneous expenses.

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[25] This court does not find such lump sum estimation by the Motor Accident Claims Tribunal, under the facts and circumstances of the instant case, to be totally wrong and as such the amount which was awarded in excess of the cash memos exhibited by the claimant i.e., Rs. 1,21,311/- may be regarded as the amount incurred in the expenses relating to transportation, nourishing foods, attendance and other miscellaneous expenditures, while treating the injuries sustained by the claimant in the accident.

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[26] It also appears that the Tribunal has awarded a compensation amount of only Rs.20,000/- against the air, pain and suffering to the claimant. Whereas, it appears that the claimant sustained following injuries in the aforesaid accident1. Fracture of nasal bone 2. Multiple facial injuries resulting in

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six stitches thereon 3. Right eyeball injury resulting in low vision 4. Deep cut injury over right palm and forehead body (Broken glass has entered in the web between third and fourth finger).

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[27] Considering the fact that the claimant is a lady and the nature of injuries sustained by her, more specifically, the facial injuries resulting in stitches thereon, the quantum of compensation awarded against the head - pain and suffering of Rs. 20,000/- only by the Tribunal appears to be on much lower side and, therefore, same is enhanced to Rs.50,000/-.

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[28] As regards the compensation which has to be awarded to the claimant against loss of earning capacity during the period of treatment and loss of future earning capacity on account of disability caused due to the accident, though the claimant has not adduced any evidence regarding her loss of earning capacity. However, considering the fact that the claimant is a housewife and considering the settled proposition of law that a homemaker is also entitled to get pecuniary damages for loss of her earning capacity due to her inability to do day-to-day function by which she was contributing in the family, due to the injury sustained by her in the accident, she is entitled to some compensation against this head.

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[29] In the instant case, there is clear evidence of hospitalization of the claimant for 4(four) days and thereafter she was treated as an outdoor patient.However, considering the nature of injury sustained by her as described in the foregoing paragraph, it can be safely concluded that she was not in a position to contribute to her family by doing normal work at least for a month As such, the compensation amount of Rs. 10,000/- is awarded in lump sum against the head loss of earning during the period of the treatment.

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[30] As against the head-“loss of future earning on account of permanent disability” is concerned, since there is no material on record to suggest that the claimant suffered from any permanent disability which has made her incapable of doing her normal work which she was doing prior to accident, no compensation is awarded against this head.

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[31] In view of discussions made in the foregoing paragraphs, the compensation to be awarded to the claimant/appellant in cross objection is computed as follows:-

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a) Expenses relating to the treatment, hospitalization, medicines, transportation, nourishing foods, attendance cost and other miscellaneous expenditure = Rs.1,50,000/-.

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b) Compensation against the head, pain and suffering =Rs. 50,000/-.

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c) Compensation for loss of earning capacity during the period of the treatment-Rs. 10,000/-.

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d) Total Rs. 2,10,000/-.

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[32] The aforesaid amount is to be payable by the appellant in MAC Appeal No. 97/2018 and respondent No. 6 Insurance Company in equal proportion of 50% each within a period of 4(four) weeks from the date of this judgment.

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[33] After payment of its share of compensation to the claimant, the statutory deposit made by the appellant in MAC Appeal No. 97/2018 may be returned back to it after proper verification by the Registry.

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