Gauhati High Court
MACApp./95/2017 on 20 April, 2026
1
GAHC010015302017
2026:GAU-AS:5379
IN THE GAUHATI HIGH COURT
HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
MACApp./95/2017
The Oriental Insurance Co. Ltd.,
A Co. Registered Under The Companies
Act 1956, Represented By Its Regional
Manager, Ulubari, Guwahati 7,
District-Kamrup, Assam.
.....Appellant
-Versus-
1. Mrs Sushila Devi and 8 Ors.
W/o Late Subhash Ch. Yadav.,
2. Miss Sital Kumari,
D/o Late Subhash Ch. Yadav.
3. Miss Kajal Kumari,
D/o-Late Subhash Ch. Yadav.
4. Miss Puja Kumari,
D/o Late Subhash Ch. Yadav.
5. Miss Anjali Kumari,
D/o Late Subhash Ch. Yadav.
MACApp./95/2017 1
WITH
CO/17/2019
2
6. Asish Yadav,
S/o-Late Subhash Ch. Yadav.
7. Niki Kumari,
D/o Late Subhash Ch. Yadav,
All Are The R/o B.K. Kakoti Road,
Opposite P.W.D. Road,
C/o Abdul Karim,
P.S. Paltan Bazar,
District-Kamrup(M), Assam.
8. Smti Bhuboneswari Sharma,
W/o Pawan Kr. Sharma,
Village-Kalimandir,
Lachit Nagar,
Guwahati,
District-Kamrup(M), Assam.
9. Utpal Talukdar,
S/o Bashu Dev Talukdar,
Village-Batikuriha,
Barpeta, Assam.
......Respondents
For Appellant Mr. S.K. Goswami, Advocate.
For Respondent(s) 1. Mr. D. Mondal, Advocate.
2. Ms. N. Deka, Advocate.
3. Ms. J. Baishya, Advocate.
WITH
CO/17/2019
1. Mrs.Sushila Devi,
W/o Late Subhash Ch. Yadav,
R/o B.K. Kakoti Road,
Opposite P.W.D. Road,
C/o Abdul Karim,
MACApp./95/2017 2
WITH
CO/17/2019
3
P.S. Paltan Bazar,
District-Kamrup(M), Assam.
2. Miss Sital Kumari,
D/o Late Subhash Ch. Yadav,
R/o B.K. Kakoti Road,
Opposite P.W.D. Road,
C/o Abdul Karim,
P.S. Paltan Bazar,
District-Kamrup(M), Assam.
3. Miss Kajal Kumari,
D/o Late Subhash Ch. Yadav,
R/o B.K. Kakoti Road,
Opposite P.W.D. Road,
C/o Abdul Karim,
P.S. Paltan Bazar,
District-Kamrup(M), Assam.
4. Miss Puja Kumari,
D/o Late Subhash Ch. Yadav,
R/o B.K. Kakoti Road,
Opposite P.W.D. Road,
C/o Abdul Karim,
P.S. Paltan Bazar,
District-Kamrup(M), Assam.
5. Miss Anjali Kumari,
D/o Late Subhash Ch. Yadav,
R/o B.K. Kakoti Road,
Opposite P.W.D. Road,
C/o Abdul Karim,
P.S. Paltan Bazar,
District-Kamrup(M), Assam.
6. Sri Asish Yadav,
S/o Late Subhash Ch. Yadav,
R/o B.K. Kakoti Road,
Opposite P.W.D. Road,
MACApp./95/2017 3
WITH
CO/17/2019
4
C/o Abdul Karim,
P.S. Paltan Bazar,
District-Kamrup(M), Assam.
7. Miss Niki Kumari,
S/o Late Subhash Ch. Yadav,
R/o B.K. Kakoti Road,
Opposite P.W.D. Road,
C/o Abdul Karim,
P.S. Paltan Bazar,
District-Kamrup(M), Assam.
…..Cross Objectors
-Versus-
1. The Oriental Insurance Co. Ltd.,
Represented By Its Regional Manager,
Ulubari, Guwahati-781007,
District-Kamrup, Assam.
2. Smt. Bhuboneswari Sarma,
W/o-Pawan Kumar Sarma,
R/o-Kalimandir,
Lachit Nagar, Guwahati-781007.(Owner of the
Offending Vehicle AS-25-A-6593).
3. Sri UtpalTalukdar,
S/o-Bashu Dev Talukdar,
R/o-Village-Batikuriha,
District-Barpeta, Assam(Driver of the Vehicle
Truck No. AS-25-A-6593).
………………Respondents
For Cross Objectors Mr. D. Mondal.
For Respondent(s) 1. Mr. S.K. Goswami, Advocate.
2. Ms. N. Deka, Advocate.
3. Ms. J. Baishya, Advocate.
MACApp./95/2017 4 WITH CO/17/2019 5 Date of Hearing : 06.01.2026 Date of Judgment : 20.04.2026 BEFORE
HON’BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT AND ORDER
[1] Heard Mr. S. K. Goswami, the learned counsel for the
appellant. Also heard Mr. D. Mondal, the learned counsel for
the respondent Nos. 1 to 7/claimants as well as the cross
objectors. Also heard Ms. N. Deka, the learned counsel for the
respondent No.8 as well as Ms. J. Baishya, the learned
counsel for the respondent No.9.
[2] By this common judgment this court intends to dispose of the
MAC Appeal No. 95/2017 filed by the Insurance Company,
namely, Oriental Insurance Company Limited as well as the
Cross Objection No. 17/2019 filed by the respondents no. 1 to
7/claimants.
[3] At the beginning of making his submissions, Mr. S. K.
Goswami, the learned counsel for the appellant, has pointed
out to this court that before the Motor Accident Claims
Tribunal, No. 2, Kamrup (M), Guwahati in the MAC Case No.
1218/2013, the claimant No. 1 had put her left thumb
impression in the claims application. Whereas, before this
Court while filing vakalatnama in the instant MAC Appeal No.
MACApp./95/2017 5
WITH
CO/17/2019
6
95/2017, she has put her signatures, which is a matter of
grave concern and which raises doubt regarding the identity
of the claimant no.1.
[4] On this aspect, the learned counsel for the respondent Nos. 1
to 7/cross objectors has submitted that though it is true that
the claimant has put her thumb impression in the claims
petition, however, while giving her testimony as PW-1 before
the Tribunal, she has inscribed her signatures in Hindi on the
deposition form and the said signature tallies with the
signature given by the claimant No. 1 in the vakalatnama
before this Court. Hence, he submits that there is no doubt
regarding the identity of claimant No. 1 in this case.
[5] The facts relevant for consideration of this MAC Appeal, in
brief, are that, on 26.04.2013, at about 12.30 pm, the
husband of the claimant No.1, namely Subhash Chandra
Yadav was proceeding on the left side of the MRD Road, at
New Guwahati under Chandmari Police Station. At that time a
mini city bus bearing registration No. AS-25-A-6593 coming
from Noonmati side in a rash and negligent manner knocked
him down. As a result of the said accident said Subhash
Chandra Yadav sustained grievous injuries and was
immediately shifted to Guwahati Medical College and Hospital.
However, he succumbed to his injuries. Thereafter, the
claimant No.1, who is the wife of the deceased Subhash
Chandra Yadav and claimant No.2 to 7 who are the children of
MACApp./95/2017 6
WITH
CO/17/2019
7
the deceased filed an application under Section 166 of the
Motor Vehicles Act, 1988, before the Motor Accident Claims
Tribunal, No.2 Kamrup (Metro) Guwahati, seeking
compensation for the death of late Subhash Chandra Yadav in
the aforementioned vehicular accident. The said claim case
was registered as MAC Case No.1218/2013.
[6] The present appellant i.e., the Oriental Insurance Company
Limited contested the claim case by filing written statement.
Whereas, the driver and the owner of the offending vehicle
did not appear before the Motor Accident Claims Tribunal and
the claims case proceeded ex-parte against them.
[7] Upon pleadings of the parties the Motor Accident Claims
Tribunal framed the following issues:
(i) Whether the death was caused to the victim
Subhash Chandra Yadav due to involvement of
vehicle bearing Registration No. AS-25-A-6593
(Tata Bus), on 26.04.2013 at about 12.30 pm, at
(MRD Road) at New Guwahati, FCI?
(ii) Whether the vehicle was driven by the driver in a
rash and negligent manner?
(iii) Whether the vehicle was duly insured with
the insurance company?
(iv) What relief/reliefs the claimants are entitled
to?
MACApp./95/2017 7
WITH
CO/17/2019
8
[8] During the course of the inquiry, the claimants examined
three witnesses whereas the insurance company examined
two defense witnesses. Ultimately, by the judgment and
award dated 05.09.2016, passed in MAC Case No.1218/2013
the Motor Accident Claims Tribunal, No.2, Kamrup (Metro)
decided all the issues in favor of the claimants, however, it
also held that the claimant Nos.2 to 7 cannot be considered as
dependent of the deceased, hence, they were not found
eligible to get any compensation and only claimant No.1, who
is the widow of the deceased was found to be entitled to get
compensation of Rs.24,48,576/- only with an interest at the
rate of 6% per annum till payment of the compensation.
[9] Mr. S.K. Goswami, the learned counsel for the appellant has
submitted that the Motor Accident Claims Tribunal, No.2,
Kamrup (Metro) has erred in directing the present appellant to
pay compensation to the claimant No.1 without taking into
consideration the fact that the policy conditions were
breached by the owner of the offending vehicle, therefore, the
insurance company is not liable to indemnify him for payment
of compensation to the claimant No.1 due to death of her
husband in the motor vehicular accident involving the
offending vehicle.
[10] He submits that the Motor Accident Claims Tribunal had failed
to take into consideration the clear and cogent evidence of
DW-1 and DW-2 to the effect that the driver of the offending
MACApp./95/2017 8
WITH
CO/17/2019
9
vehicle, namely, Utpal Talukdar was not having a valid driving
license on the date of the alleged accident i.e., on
26.04.2013.He submits that though, the driver was having a
driving license, but it had expired on 02.10.2009 and the
driving license was not renewed after the said expiry date,
therefore, the driver was not having any valid driving license
on the date of the alleged accident. He submits that the said
fact has been established by the DWs by exhibiting the report
to that effect from District Transport Officer(DTO) Nalbari,
which is exhibited as Exhibit-A. He submits that the DW-1 and
DW-2 were not cross-examined by the claimant’s counsel
before the Tribunal, therefore, the evidence adduced by DW-1
and DW-2 remain uncontroverted and same is binding on the
Motor Accident Claims Tribunal. However, the Motor Accident
Claims Tribunal merely on the ground that exhibit regarding
validity of driving license of the driver of the offending vehicle
was not exhibited by the DTO, had given a contrary view.
[11] The learned counsel for the appellant has also submitted that
during the course of the inquiry before the Motor Accident
Claims Tribunal, the insurance company had also filed an
application for summoning the DTO, Nalbari to prove the fact
that the driver was not entitled to drive the offending vehicle.
However, the Motor Accident Claims Tribunal, by its order
dated 14.07.2016, had rejected the said prayer mainly on the
ground that the claimant did not challenge the witness of OP
No.1 regarding the validity of the driving license. However, at
MACApp./95/2017 9
WITH
CO/17/2019
10
the same time in the impugned judgment and award, it did
not rely on the testimony of DW-1 and DW-2 and rejected the
plea of the insurance company regarding the lapse of the
validity of the driving license held by the driver of the
offending vehicle at the time of the accident.
[12] The learned counsel for the appellant has submitted that the
reasoning given by the Tribunal in the paragraph No. 38 of the
impugned judgment that the opposite party No.1should have
examined the District Transport Officer (DTO), Nalbari to
prove the authentication of the driving license is contrary to
the reasoning given by the same Tribunal in its order dated
14.07.2016, wherein it had rejected the prayer of the
insurance company for summoning the District Transport
Officer (DTO) Nalbari to prove the driving license only on the
ground that the claimant did not challenge the witnesses for
opposite party No.1 (the insurance company) wherein the fact
of lapse of the validity of the driving license, on the date of
the accident, was affirmed and it was deposed by the DW-1
that on the date of alleged accident the validity of driving
license held by driver of the offending vehicle had expired.
[13] The learned counsel for the appellant has submitted that as
the witnesses for the Insurance Company, namely,DW-1 and
DW-2 were not cross-examined by the claimants’ side, their
testimony remained uncontroverted and under such
circumstances, the testimony of the such witnesses as well as
MACApp./95/2017 10
WITH
CO/17/2019
11
documents exhibited by them more specifically, Exhibit-A
ought to have been relied upon by the Tribunal and by not
doing so, it has committed illegality and the judgment of the
Tribunal is, accordingly, erroneous and illegal.
[14] The learned counsel for the appellant has submitted that the
driving license on the driver of the offending vehicle had
expired on 02.10.2009, whereas the accident in this case had
occurred on 26.04.2013 i.e., nearly about four years after the
lapse of the validity of the driving license. The same ought to
have been checked by the owner before allowing the said
driver to continue to drive the offending vehicle and as there
is a breach of condition of policy by the owner of the
offending vehicle in allowing the vehicle to be driven by a
driver without having a valid license for a period of almost
four years after the lapse of the validity of the driving license.
He submits that as there is a breach of the policy condition
the appellant/ insurance company is not liable to indemnify
the owner of the offending vehicle for paying the
compensation to the claimants/respondents.
[15] The learned counsel for the appellant has submitted that
under such circumstances even if the claimants are held to be
entitled to get compensation, it is for the owner of the
offending vehicle to pay such compensation. He submits that
as there is a breach of policy condition, the insurance
MACApp./95/2017 11
WITH
CO/17/2019
12
company cannot be made liable to indemnify the owner. He
submits that the insurance company under such
circumstances is even not required to pay the compensation
to the claimants at the first instance and, thereafter recover
the same from the owner.
[16] The learned counsel for the appellant has submitted that the
power to direct the insurance company to pay the
compensation to the claimant even if it is not liable to
indemnify the owner and, thereafter, recover the same from
the owner may be exercised by the Apex Court only under its
powers under Article 142 of the Constitution of India and High
Court does not have any such powers to direct pay and
recovery by the insurance company once it is held that the
insurance company is not liable to indemnify the owner for
breach of any policy conditions.
[17] In support of his submissions, the learned counsel for the
appellant has cited following rulings:
i. "Beli Ram Vs. Rajinder Kumarand another" reported in "(2020)4 SCT 221;" ii. "National Insurance Company Limited Vs. Parvathneniand Another" reported in "(2009) 8 SCC 785;" MACApp./95/2017 12 WITH CO/17/2019 13 iii. "The Oriental Insurance Company Limited Vs. Mohiuddin Molya & Another" reported in "(2022) 3 GLT 344;" iv. "Oriental Insurance Company Limited Vs. Arati Chik @Sik and Others" reported in"(2019) 3 GLT 47." [18] Regarding the cross objection filed by the
claimants/respondent No.1 to 7 in this appeal, the learned
counsel for the appellant has fairly submitted that the Motor
Accident Claims Tribunal had erred in deducting 50% of the
total income from the income of the deceased as personal
expenses of the deceased in as much as the deceased was
having more than one dependents. The learned counsel for
the appellant submits that the deduction towards personal
expenses of the deceased may be reduced according to the
number of dependents of the deceased in light of the ruling of
the Apex Court in the case of “National Insurance
Company Limited Vs. Pranay Sethi” reported in “(2017)
16 SCC 680.”
[19] He, however, submits that the Motor Accident Claims Tribunal
had erred in regarding the incentive given to the disease in
addition to his monthly salary as part of his salary, therefore,
on that count the quantum of compensation granted to the
MACApp./95/2017 13
WITH
CO/17/2019
14
claimant is required to be rectified. He also submits that in
this regard the PW-3, who was examined by the claimants’
side, during the inquiry before the Motor Accident Claims
Tribunal, has categorically stated in her cross-examination that
the incentive is not a part of salary and the basic salary of the
deceased was Rs.10,300/- only.
[20] On the other hand, Mr. D. Mondal, the learned counsel for the
respondents/claimantsNo.1 to 7 has submitted that the Motor
Accident Claims Tribunal was right in fastening the liability to
pay compensation in the aforesaid motor accident claims case
on the insurance company, as it had failed to prove breach of
any policy condition by adducing admissible and cogent
evidence.
[21] He submits that mere pleading of invalid driving license would
not absolve the insurance company from the liability to
indemnify the owner in case of payment of compensation to
the claimants. He submits that to avoid the liability towards
the insured, the insurer has to prove that the insured was
guilty of negligence and failed to exercise reasonable care in
the matter of fulfilling the condition of policy regarding use of
vehicle by a duly licensed driver or one who was not
disqualified to drive and the time of accident. He submits that
the Motor Accident Claims Tribunal was correct in holding, in
paragraph No. 38 of the impugned judgment, that the
MACApp./95/2017 14
WITH
CO/17/2019
15
opposite party No. 1 should have examined the District
Transport Officer to prove the fact that the driver of the
offending vehicle was not possessing a valid driving license on
the date of the alleged accident.
[22] He submits that mere fact that by order dated 14.07.2016, the
Motor Accident Claims Tribunal had rejected the prayer of the
insurance company to summon the District Transport Officer,
Nalbari as a witness for the insurance company on the ground
that the claimant did not challenge the witnesses of the
OPNo.1, who were already examined, would not invalidate the
reasoning given by the Tribunal in paragraph No.38 of the
impugned judgment. He submits that the insurance company
could have challenged the order dated 14.07.2016 passed in
MAC Case No.1218/2013. However, by not doing so, they
cannot take advantage of the said order even if the order
itself lacks a cogent reason for rejecting the said prayer.In
support of his submission, the learned counsel for respondent
Nos. 1 to 7 has cited the ruling of the Apex Court in the case
of “National Insurance Company Limited Vs. Swaran
Singh and Others” reported in “(2004) 3 SCC 297.” He
also submits that even if for the sake of arguments, it is
assumed that there was a breach of policy condition, still in
view of the aforesaid judgment, the appellant insurance
company is liable to pay the compensation to the claimants at
MACApp./95/2017 15
WITH
CO/17/2019
16
the first instance and thereafter, it may recover the same from
the owner.
[23] The learned counsel for the respondent/claimant has
submitted that the Tribunal has also erred in deducting 50%
of the total income of the deceased for the personal expenses
of the deceased in violation of the guidelines laid down by the
Apex Court in the case of Pranay Sethi (Supra). He submits
that during the cross examination of PW-1, Sushila Devi, she
has categorically stated that her deceased husband left five
daughters and one son and her eldest daughter on the date of
deposition by the PW-1 (i.e., 02.06.2015) was of 19 years of
age only which itself indicates that all the sons and daughters
of the deceased were minor on the date of the alleged
accident. As such, he submits that the deduction towards
personal expenses of the deceased from the total income of
the deceased ought to have been 1/5th instead of 50% of the
income of the deceased.
[24] The learned counsel for respondent Nos. 1 to 7 has also
submitted that as is apparent from the testimony of PW-1 that
all the children of the deceased were minors at the time of the
accident when their father died. They were dependent on the
deceased and as such, they are also entitled to a
compensation against the head loss of parental consortium. In
support of submission, the learned counsel for respondent No.
1 to 7 has cited the following rulings.
MACApp./95/2017 16
WITH
CO/17/2019
17
1) “Magma General Insurance Company Limited Vs.
Nanu Ram alias Chuhru Ram and Others” reported
in “(2018)18 SCC 130;”
2) “United India Insurance Company Limited
Vs. Satinder Kaur and Others” reported in “(2021)
11 SCC 780.”
[25] The learned counsel for respondents also cited the ruling of
the Apex Court in the case of National Insurance
Company Limited Vs. Pranay Sethi” reported in (2017)
16 SCC 680 in support of his submissions. He submits that
the compensation granted to the claimants only by the Motor
Accident Claims Tribunal may be enhanced, accordingly.
[26] On the other hand, Ms. N. Deka, the learned counsel for the
respondent No.8 as well as Ms. J. Baishya, the learned
counsel for the respondent No.9 have submitted that the
Motor Accident Claims Tribunal, in the paragraph No.38 of the
impugned judgment, has correctly discarded the defense of
invalid license taken by the insurance company, as it has failed
to prove the same by adducing admissible and reliable
evidence. They submit that the Motor Accident Claims Tribunal
was correct in holding that the validity of driving license could
have been proved only by the District Transport Officer (DTO),
Nalbari and though, the report of the investigator, which was
exhibited by the DW-1 has a mention about lapse of the
MACApp./95/2017 17
WITH
CO/17/2019
18
validity. However, the said fact was stated on the basis of
report of the DTO whereas the DTO himself was not examined
by the insurance company. Therefore, they submit that the
insurance company have failed to prove the defense of
invalidity of driving license of the driver of the offending
vehicle on the date of accident. In support of their
submission, they have cited the following rulings of the Apex
Court:
1) “National Insurance Company Limited Vs. Swaran
Singh and Others” reported in “(2004) 3 SCC 297;”
2) “General Insurance Company Limited Vs. Geeta
Devi and Others” reported in “(2024) 13 SCC 755;”
3) “Rishi Pal Singh vs. New India Assurance
Company Limited and others, reported in “2022 live
law (SC) 646.”
[27] I have considered the submissions made by the learned
counsel for all the parties and also gone through the materials
available on record. I have also gone through the rulings cited
by the learned counsel for both the sides in support of their
respective submissions.
[28] First of all, let us deal with the contention raised by the
learned counsel for the appellant regarding the identity of the
claimant No. 1. Though, no such contention was raised before
the Motor Accident Claims Tribunal, it appears from records
MACApp./95/2017 18
WITH
CO/17/2019
19
that in the claims petition filed by the claimants before the
Motor Accident Claims Tribunal, the claimant No.1 has put her
thumb impression of right hand, whereas in the vakalatnama
filed before this Court in the instant appeal, the claimant No. 1
has put her signatures. It also appears that before the Motor
Accident Claims Tribunal also while deposing as PW-1, the
claimant No. 1 has inscribed her signatures in Hindi on the
deposition forms. The signatures put by the claimant No. 1, in
the deposition form, before the Motor Accident Claims Tribunal
as well as signatures in the vakalatnama in this appeal tallies.
Under such circumstances, merely because her thumb
impressions were taken on the claims petition cannot be the
ground to doubt her identity, therefore, the contention raised
regarding identity of the claimant No.1 is rejected.
[29] The appellant herein has challenged the impugned judgment
mainly on the ground that the owner of the offending vehicle
has violated a condition stipulated in the insurance policy
regarding holding of a valid driving license by the driver of the
offending vehicle. It is contended that the insurance company
by adducing the evidence of PW-1 as well as exhibiting the
report of the investigator, which also contains a
communication from DTO regarding the fact that the validity
of driving license of the driver of the offending vehicle had
lapsed on the date of the accident. The said exhibit has been
exhibited as Exhibit-A by the insurance company before the
Motor Accident Claims Tribunal.
MACApp./95/2017 19
WITH
CO/17/2019
20
[30] The Apex Court while dealing with questions regarding breach
of policy condition by the owner due to use of the offending
vehicle by driver without a valid driving license has observed
as follows in the case of National Insurance Co. Ltd. v.
Swaran Singh, (2004) 3 SCC 297:
“(iii) The breach of policy condition e.g.
disqualification of the driver or invalid driving
licence of the driver, as contained in sub-section
(2)(a)(ii) of Section 149, has to be proved to
have been committed by the insured for
avoiding liability by the insurer. Mere absence,
fake or invalid driving licence or disqualification
of the driver for driving at the relevant time, are
not in themselves defences available to the
insurer against either the insured or the third
parties. To avoid its liability towards the insured,
the insurer has to prove that the insured was
guilty of negligence and failed to exercise
reasonable care in the matter of fulfilling the
condition of the policy regarding use of vehicles
by a duly licensed driver or one who was not
disqualified to drive at the relevant time.
(iv) Insurance companies, however, with a view
to avoid their liability must not only establish the
available defence(s) raised in the said
proceedings but must also establish “breach” on
the part of the owner of the vehicle; the burden
of proof wherefor would be on them.
MACApp./95/2017 20
WITH
CO/17/2019
21
(vi) Even where the insurer is able to prove
breach on the part of the insured concerning the
policy condition regarding holding of a valid
licence by the driver or his qualification to drive
during the relevant period, the insurer would not
be allowed to avoid its liability towards the
insured unless the said breach or breaches on
the condition of driving licence is/are so
fundamental as are found to have contributed to
the cause of the accident. The Tribunals in
interpreting the policy conditions would apply
“the rule of main purpose” and the concept of
“fundamental breach” to allow defences
available to the insurer under Section 149(2) of
the Act.
(vii) The question, as to whether the owner has
taken reasonable care to find out as to whether
the driving licence produced by the driver (a
fake one or otherwise), does not fulfil the
requirements of law or not will have to be
determined in each case.
[31] From the above observations made by the Apex Court in the
aforesaid judgment, it appears that mere absence or invalid
driving license or disqualification of the driver for driving at
the relevant time are not in themselves defense available to
the insurer to avoid liability against either the insured or the
third party. To avoid its liability towards the insured, the
insurer has to prove that the insured was guilty of negligence
and failed to exercise reasonable care in the matter of fulfilling
the condition of policy regarding use of vehicle by duly
MACApp./95/2017 21
WITH
CO/17/2019
22
licensed driver or one who was not disqualified to drive at the
relevant time. The insurance company with a view to avoid
the liability must not only establish the available defenses in
the said proceeding, but must also establish breach on the
part of the owner of the vehicle. It is also a settled law that
the breach which has been pleaded by the insurance company
for avoiding its liability towards the insured must be the
breach so fundamental as found to have contributed to the
cause of the accident.
[32] To put it simply, it is for the insurance company to prove the
facts of breach of any policy condition by the insured in order
to avoid its liability of indemnifying the insured for payment of
any compensation to any claimant in the motor accident
claims case.
[33] In the instant case, it appears that the Motor Accident Claims
Tribunal has held that the testimony of DW-1 and DW-2 is not
sufficient to prove the fact that the driving license of the
driver of the offending vehicle was lapsed. It was observed by
the Tribunal that to prove the said fact, the examination of
concerned District Transport Officer, i.e., DTO, Nalbari was
necessary.
[34] This Court finds no infirmity or error in the aforesaid reasoning
of the Motor Accident Claims Tribunal for discarding the
testimony of DW-1 and DW-2 as regards the fact of proving
MACApp./95/2017 22
WITH
CO/17/2019
23
the lapse of validity of the driving license of the driver of the
offending vehicle. Merely because by its order dated
14.07.2016, the Motor Accident Claims Tribunal disallowed the
prayer of the insurance company to examine to summon the
DTO, Nalbari as a witness cannot be a reason to find fault
with the reasoning of the Motor Accident Claims Tribunal given
in paragraph No. 38 of the impugned judgment.
[35] The Insurance company could have challenged the order
dated 14.07.2016 if it was not satisfied with the said order.
Nowhere in the said order, it was observed by the Motor
Accident Claims Tribunal that the testimony of DW-1 and DW-
2 regarding invalidity of the driving license would be relied
upon by the Motor Accident Claims Tribunal while passing the
final judgment or that the said testimony is sufficient to prove
the said fact.
[36] Apparently, it appears that the reasoning of the Motor
Accident Claims Tribunal in discarding the prayer of the
insurance company for summoning the DTO, Nalbari in order
dated 14.07.2016 was a fallacious reasoning. However, that
cannot be a reason or that cannot stop the Motor Accident
Claims Tribunal in taking a correct decision while disposing of
the MAC Case No.1218/2013 by the impugned judgment. This
Court is of considered opinion that the reasoning of the Motor
Accident Claims Tribunal in paragraph No. 38 of the impugned
judgment, whereby it discarded the testimony of DW-1
MACApp./95/2017 23
WITH
CO/17/2019
24
regarding the fact of lapse of validity of driving license of the
driver of the offending vehicle, cannot be regarded as
perverse.
[37] This Court is of considered opinion that the insurance
company has failed to establish the breach of policy condition
by the insured by adducing admissible and cogent evidence.
Accordingly, this Court is of the considered opinion that the
reasoning made by the Motor Accident Claims Tribunal in
paragraph No. 38 of the impugned judgment and award,
cannot be faulted with and the insurance company cannot be
absolved of its liability to indemnify the owner for the
compensation to be paid to the claimants for death of their
husband/father in the accident which occurred on 26.04.2013.
[38] The appeal filed by the insurance company is, therefore,
devoid of any merit and accordingly, dismissed.
[39] As regards the cross-objection filed by the
respondents/claimant Nos. 1 to 7, it appears that while
computing the annual income of the deceased, the Motor
Accident Claims Tribunal has, in paragraph No. 31 of the
impugned judgment and award in the Court, deducted 50% of
the income of the deceased towards his personal and living
expenses.
[40] If we go through the testimony of PW-1 (the claimant No.1), it
appears that she has categorically stated, during her cross-
MACApp./95/2017 24
WITH
CO/17/2019
25
examination, that the deceased left behind five daughters and
one son and the eldest daughter, at the date of deposition by
PW-1,wasof 19 years of age. It appears that the PW-1 was
cross-examined by the counsel for insurance company on
26.04.2015, whereas the accident in question had occurred on
26.04.2013 i.e., two years prior to recording of deposition of
PW-1 in the above mentioned claims case. It thus become
clear that on the date of accident, all the children of the
deceased were minor and, therefore, there is no doubt that he
left behind seven dependents at the time of his death. The
Apex Court in the case of Sarla Varma (Supra) and Pranay
Sethi (Supra) has held that where deceased has left more
than six numbers of defendants at the time of his death, the
deduction towards personal and living expenses of the
deceased has to be one fifth of his income. As such the
Tribunal has erred in deducting the 50% amount from the
income of the deceased against personal and living expenses.
[41] As regards, the computation of the income of the deceased,
the Motor Accident Claims Tribunal took the gross salary of
the deceased to be ₹23,388/-, on the basis of the salary slip
for the month of March 2013[Ext. 3(11)]. It is pertinent to
mention here in that the month of March 2013 was the last
month before the accident, for which the deceased got his full
salary, as in the next month itself, i.e., on 26th April, the
accident took place.
MACApp./95/2017 25
WITH
CO/17/2019
26
[42] It also appears that the Claimant No.1 has exhibited total 11
salary slips of the deceased as Exhibit- 3(1) to Exhibit- 3(11)
and the gross earnings and net earnings of the deceased in
every salary slip appears to be different. It also appears that
to the gross earning of the deceased, incentive earning under
the heads: labour OT wages and labour incentive and
sometime labour OT incentive are added.
[43] In his cross-examination, the PW-2 has deposed that he
worked with the deceased as a colleague in the same capacity
and his basic salary is ₹24,860/-. He has also deposed that
they used to get incentive on crossing the limit of carrying 105
bags. He has also stated that incentive vary from day to day.
[44] The Apex Court, in the case of “Kavita Devi and others
versus Sunil Kumar And another” [2025 INSC 938] has
held that the question as to whether allowance can be
regarded as a component of salary or not is dependent on the
fact that such allowances were regularly received by the
deceased and used for family’s benefit. In the instant case,
the evidence of PW-2 and PW-3 shows that receipt of
incentive by the deceased was dependent on carrying more
than 105 bags and if one carries only 105 bags, he may not
get any incentive.
[45] On perusal of the pay-slip for the month of November 2012,
which is exhibited as Exhibit- 3(2), it appears that, in that
MACApp./95/2017 26
WITH
CO/17/2019
27
month the incentive earning of the deceased was only
₹2432/-. Whereas, for other months, this amount was
different. Thus, there is no fixed amount which can be taken
as regular monthly incentive earnings of the deceased. As
such, this court is of considered opinion that the Tribunal was
right in taking last gross salary minus incentive received by
the deceased as the basis for computation of his earnings for
the purpose of awarding just compensation to his dependents.
[46] Accordingly, taking the last full salary of the deceased i.e., for
the month of March 2013 which included allowances at Rs.
23,388/- as the monthly income of the deceased, the annual
income of the deceased comes at Rs. 2,80,686/-. As was
done by the Motor Accidents Claims Tribunal,10% of the
income of the deceased is deducted towards income tax and
as such the actual annual income of the deceased was
computed at Rs. 2,52,591/-(Rs. 2,80,656/- minus Rs.
28,065/-).Thereafter, as was correctly done by the Motor
Accident Claims Tribunal in paragraph No. 29 of the impugned
judgment, after adding 30% of the income of the deceased
towards his future prospects, the annual income of the
deceased comes at Rs. 3,28,368/-.
[47] Thereafter, as deduction against the personal and living
expenses of the deceased has to be only one fifth of his total
income, the one fifth of the total income i.e., Rs. 65,673/-is
deducted from Rs. 3,28,368/-. The total income of the
MACApp./95/2017 27
WITH
CO/17/2019
28
deceased comes at Rs. 2,62,695/- only. Thereafter, multiplying
the said amount with the multiplier of 14, the loss of
dependency comes at Rs. 36,77,730/-.
[48] The Apex Court has while considering the compensation to be
paid against the conventional heads in the Motor Accident
Claims Tribunal, observed in the case of Pranay Sethi
(Supra) as follows:
“The conventional and traditional
heads, needless to say, cannot be
determined on percentage basis
because that would not be an
acceptable criterion. Unlike
determination of income, the said
heads have to be quantified. Any
quantification must have a reasonable
foundation. There can be no dispute
over the fact that price index, fall in
bank interest, escalation of rates in
many a field have to be noticed. The
court cannot remain oblivious to the
same. There has been a thumb rule in
this aspect. Otherwise, there will be
extreme difficulty in determination of
the same and unless the thumb rule is
applied, there will be immense variation
lacking any kind of consistency as a
consequence of which, the orders
passed by the tribunals and courts are
likely to be unguided. Therefore, we
think it seemly to fix reasonable sums.
It seems to us that reasonable figures
on conventional heads, namely, loss of
estate, loss of consortium and funeral
expenses should be Rs. 15,000/-, Rs.
40,000/- and Rs. 15,000/- respectively.
MACApp./95/2017 28
WITH
CO/17/2019
29The principle of revisiting the said
heads is an acceptable principle. But
the revisit should not be fact-centric or
quantum-centric. We think that it would
be condign that the amount that we
have quantified should be enhanced on
percentage basis in every three years
and the enhancement should be at the
rate of 10% in a span of three years.
[49] From the above, it appears that the reasonable figures on
conventional head namely loss of estate, loss of consortium
and loss of funeral expenses should be Rs.15,000/-
,Rs.40,000/- and Rs.15,000/- respectively.
[50] In the case of Magma General Insurance Company
Limited Vs. Nanu Ram alias Chuhru Ram and Others
(Supra), the Apex Court has observed that in legal parlance,
the word consortium is a compendious term which
encompasses spousal consortium, parental consortium and
filial consortium. Spousal consortium is generally defined as
right pertaining to the relationship of a husband-wife which
allows compensation to the surviving spouse for loss of
company, society, cooperation, affection and aid of other in
every conjugal relation. Similarly parental consortium is
granted to child upon premature death of parent for loss of
parental aid, protection, affection, society, discipline, guidance
and training.
MACApp./95/2017 29
WITH
CO/17/2019
30
[51] In the instant case as discussed herein above, all the six
children of the diseased were dependent on him along with
his wife as such all of them also are invited to get
compensation against loss of parental consortium. Hence, by
applying the principle of awarding compensation under
convention heads as laid down in the case of Pranay Sethi
(Supra),the funeral expenses is reduced from Rs.25,000/- to
Rs. 15,000/-, loss of estate is reduced from Rs. 25,000/- to
Rs.15,000/- and each of the dependents is awarded an
amount of Rs.40,000/- each against loss of spousal
consortium (for claimantNo.1) and loss of parental consortium
(for claimant Nos.2 to 7). Thus, an amount of Rs. 2,80,000/-
is awarded to the claimants against loss of consortium on
death of their husband/father.
[52] Thus, if with the total amount towards loss of
dependencyassessedatRs.36,77,730/- an addition of Rs.
15,000/- towards funeral expense and further addition of
Rs.15,000/- towards loss of estate as well as an addition of
Rs.2,80,000/- towards loss of consortium of the claimants is
made, it would bring the total amount of compensation
payable to the claimants at Rs. 39,87,730/-.
[53] The aforesaid awarded amount shall carry an interest at the
rate of 7.5 % per annum from the date of filing of the claim
petition till its realization.
MACApp./95/2017 30
WITH
CO/17/2019
31
[54] The awarded amount is to be apportioned in to seven parts
and each claimant will get one part therefrom. Out of their
respective shares of each of the minor dependents, an
amount of Rs. 3,00,000/- shall have to be kept in fixed deposit
in any nationalized bank till the date of attainment of age of
maturity by the said minor claimants. As regards the claimants
who have already attained the age of maturity, their
respective shares may be disbursed to them immediately.
[55] The awarded compensation may be deposited before the
concerned Motor Accident Claims Tribunal by the appellant
within a period of six weeks from the date of this judgment.
Thereafter, same shall be disbursed in the manner as
indicated herein above.
[56] The instant appeal and the cross objection are accordingly
decided.
[57] Send back the records of MAC Case No. 1218/2013 to the
Motor Accident Claims Tribunal, No. 2, Kamrup (M), Guwahati
along with a copy of this judgment.
JUDGE
Comparing Assistant
MACApp./95/2017 31
WITH Digitally signed
CO/17/2019 Munmu by Munmun
Boruah
n Boruah Date: 2026.04.20
18:48:53 +05'30'
