Gauhati High Court
The Oriental Insurance Company Ltd vs Smti Lakhi Das And 3 Ors on 30 April, 2026
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GAHC010123182017
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THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp./84/2017
THE ORIENTAL INSURANCE COMPANY LTD
A CENTRAL GOVT. UNDERTAKING, HAVING ITS REGIONAL OFFICE AT
GUWAHATI, G.S. ROAD, ULUBARI, GUWAHATI REPRESENTED BY THE
DEPUTY MANAGER, GAUHATI REGIONAL OFFICE, ULUBARI, GUWAHATI
781007
VERSUS
SMTI LAKHI DAS and 3 ORS
W/O LATE DWIJEN CH. DAS
2:SMTI PHULESWARI DAS
M/O LATE DWIJEN CH. DAS
BOTH ARE R/O VILL. JHARPARA
P.O. LENGTISINGA
P.S. ABHAYAPURI
DIST. BONGAIGAON
ASSAM
PIN 783384
3:TARUN KUMAR SINGHA
S/O SRI TANJEW SINGHA
BERABAX
P.O. SONAI
DIST. CACHAR
ASSAM
PIN 788119
4:M/S DUDHNOI OIL SERVICE
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P.O. and P.S. DUDHNOI
DIST. GOALPARA
ASSAM
PIN 78312
Advocate for the Petitioner : MS.R D MOZUMDAR, MS.C MOZUMDAR
Advocate for the Respondent : MR.A BOROR-3, MS A RAMCHIARY,MS C TALUKDAR (R-4),MS
T RAMCHIARY (R-4),MS.M BASUMATARY(R-3),MR.B RAMCHIARY(R-3,4),MR. T U
LASKAR,MR.N DHAR,MS.C TALUKDAR,MR.M DEKA,MR.S ISLAM,MRH HAQUE,FOR
CAVEATOR,MR.I A TALUKDAR
BEFORE
HONOURABLE MRS. JUSTICE YARENJUNGLA LONGKUMER
Date : 30-04-2026
Judgment and Order (ORAL)
The instant appeal under section 173 of the Motors Vehicle Act (M.V.
Act 1988 for short) has been filed by the Oriental Insurance Company against
the judgment and award dated 05.06.2015 passed by the learned Member,
MACT-3 Kamrup in MAC Case No.718/2011 and the order dated 21.12.2015
passed in MISC Case No.14/2015.
2. By the impugned judgment 05.06.2015 the MACT has awarded
compensation of Rs.12,77,00/- to the claimants as compensation on account of
the death caused to the deceased husband of the claimant No.1 in a motor
vehicle accident and the liability to pay such compensation has been fastened
upon the appellant/Insurance Company. Thereafter, a Misc Case No.14/2015
was filed by the claimants praying for recovery of the awarded amount as the
insurance company did not deposit the awarded amount even after the lapse of
four months from the day of passing the judgment and award dated
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05.06.2015. The appellant/insurance company also filed an affidavit in the Misc
Case 14/2015 objecting to the deposit of the awarded amount as the date of
accident was not covered by the alleged insurance policy and therefore the
insurer was not liable to pay the compensation amount. However, the learned
MACT dismissed the objection of the insurer on the ground that the insurance
company should have proved the same during the trial.
3. Learned counsel Ms. R.D Mozumdar appearing for the insurance company
submits that it is clearly established from the record that the insurance policy
was effective only from 27.01.2011, whereas the accident occurred on
22.01.2011. Learned counsel states that this Court by order 17.07.2018 had had
taken the view that in view of the allegations and counter allegations made by
both the sides an opportunity should be given to adduce evidence in respect of
the policy. The Trial Court record was sent to the Tribunal for allowing the
parties to adduce additional evidence in respect of the policy. It was further
directed that the Tribunal shall complete the process of taking evidence within 3
months from the date of the evidence of the parties and send back the record
along with the additional evidence. Thereafter, the additional evidence was
adduced and the records have been received back. Learned counsel for the
appellant draws the attention of this Court to the evidence of DW-2/Pranay Kr.
Brahma who is the Divisional Manager Bongaigaon Division of the Oriental
Insurance Company. The DW-2 testified that the offending vehicle was insured
with the company till 2010 but after that the vehicle was being driven without
any policy from 21-01.2011 to 27.01.2011. He also stated that the owner has to
submit the RC, proposal form, station report of the Motor vehicle Inspector and
money receipt for getting the vehicle insured with the company. Further, the
proposal form is to be signed by the owner along with its declaration. He
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deposed that manual policies were issued only till 2008 and from 2009 onwards
the system has become computerised. He stated that barcode was issued from
the year 2017. In his cross-examination the DW-2 deposed that upon
verification of the documents it was revealed that the policy was issued on
27.01.2011 from 00.00 hrs till midnight of 26.01.2012. However, the accident
occurred on 22.01.2011 and as such the policy submitted by the owner of the
vehicle is found to be a manufactured document as the policy was issued only
on 27.01.2011 with validity till midnight of the next year instead the date
21.01.2011 as shown in the policy exhibited as Ext.II by the vehicle owner. Shri
Sarvesh Suman, A.O Legal department of the regional office of Oriental
Insurance company at Guwahati also adduced evidence as the policy in question
was issued from the Bongaigaon office which is under the Guwahati Regional
office. This DW has exhibited the computer generated insurance policies
pertaining to the Oriental Insurance Company. The computer-generated policy
at Exhibit C shows that the owner of the vehicle/respondent 4 had a valid
insurance policy only from 27.01.2008. The computer generated policies issued
on 21.01.2011 is also exhibited as Ext.D wherein the name of the respondent
no.4 does not figure.
4. Learned counsel has also relied on the evidence of one Mr. Robin Gayari
who was produced as a witness by the respondent No.4/M/s Dudhnoi Oil
Service. This witness deposed that he is the owner of the vehicle bearing
registration AS-25 C/3037, oil tanker which had been hired by the M/s Dudhnoi
Oil Service on contractual basis. He had deposed that the said vehicle was duly
insured by the Oriental Insurance Company Ltd vide insurance policy
No.322300/31/2011/7279 dated 21.01.2011. However, in his cross-examination
Robin Gayari stated that he is not the registered owner of the vehicle and
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further that he is not a salaried employee of the Dudhnoi Oil Station. Therefore,
learned counsel submits that the respondent No.4/Dudhnoi Oil Service who was
the owner of the offending vehicle never appeared before the Tribunal. Learned
counsel submits that the insurance police exhibited by the vehicle owner before
the Tribunal is clearly a manufactured document as the issuance of manual
policy has stopped in 2009 and only computer generated policies were issued
from the year 2009 and as per the policies in the computer database, it is
apparently clear that the policy was effective only from 27.01.2011. She has
submitted that it is abundantly clear that at the time of accident, the offending
vehicle was not covered under any insurance policy and the policy was obtained
only subsequent to the occurrence of the accident therefore, fastening the
liability upon the appellant is unsustainable in law. The learned counsel for the
appellant has placed reliance on the following authorities in support of her
submission: -.
1. Judgment 13.12.2018 passed in MACApp.190/2014
2. Judgment dated 30.10.2025 passed in MACApp.244/2013
3. Anil and Others vs New India Insurance Company Ltd in (2018) 2
SCC 482
4. United India Insurance Company vs Rajendra Singh in (2000) 3
SCC 581
Relying on the above judgments, the learned counsel submits that by
producing a fake policy, the claimants have managed to obtain the award from
the Tribunal. No judgment of a Court can be allowed to stand if it has been
obtained by fraud as fraud unravels everything. She submits that it a settled
proposition of law that a judgment or decree obtained by plain fraud on the
Court is a nullity and non est in the eye of law.
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5. Per contra learned counsel Mr S.Islam appearing for the claimant
respondents submits that Robin Gayari is the owner of the offending vehicle but
he had given the vehicle to the respondent No.4 on contractual basis. He
submits that the insurer had never raised the issue of fraud at any time during
the trial of the case before the Tribunal. If at all the appellant had come to know
that the policy produced by the owner of the vehicle was fake, the insurer
should have filed an FIR, however, no such steps had been taken by the insurer
till date. He has also submitted that the Insurance Company also failed to
produce before the Tribunal any proposal form that the vehicle owner
submitted. By relying on Balbir Kaur & others vs New India Assurance
Company, 2009 13 SCC 370 , learned counsel submits that a policy, which is
issued from a future date must be with the consent of the policy maker. The
insurance company cannot issue a policy unilaterally from a future date without
the consent of the policy holder. He submits that from the deposition of DW-2,
the Divisional Manager, it can be seen that the vehicle owner had been
consistently paying the premium till 2010 and DW also deposed that he had not
submitted the application form submitted by the insured to the company and he
also did not remember as to when the vehicle owner had submitted the
proposal form. This goes to show that it was due to the lapses of the officials of
the insurance company that the policy was not issued on time.
6. The learned counsel further submits that the fraud has not been established
during the trial. He submits that the alleged fraud policy was produced and
exhibited by the vehicle owner which was not rebutted by the insurance
company before the trial Court. He also submits that the claimants/respondents
have already withdrawn half of the 50% of the award deposited by the
insurance company. He has therefore prayed that the interest of justice would
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be met if this Court directs the insurance company to pay the remaining amount
of the award and to recover from the owner and the driver of the offending
vehicle.
7. The learned counsel for the respondents/claimants have also relied on the
case of:-
1. Oriental Insurance Company vs Zaharulnisha in 2008 12 SCC 385
2. Oriental Insurance Company vs Premlata Shukla and Others in 2007 13 SCC
476
3. Manager National Insurance Compnay Ltd vs Saju P.Paul and Another in
2013 2 SCC 41
4. Amrit Paul Singh and Another vs Tata AIG General Insurance company Ltd in
AIR 2018 SC 2662
8. The Court has duly considered the submissions of the learned counsel for
the parties and perused the material available on record including the Trial Court
Records. The Court has also duly considered the authorities relied upon by the
parties.
9. The main issue to be decided in this appeal is whether the Insurance
Company can be held liable for payment of compensation to the victim of a road
accident when it is evident that the offending vehicle was not insured, and
whether the subsequent insurance of the vehicle after the accident would fasten
any liability upon the insurance company.
10. In the instant case it is an admitted fact that the claimant
respondents are the legal heirs and rightful dependants of the deceased who
died in a motor vehicle accident. It is also not denied that the deceased was a
third party and therefore entitled to be compensated. No doubt, the insurance
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company had never raised the issue of the policy being fake and manufactured
before the Tribunal. However, as was held in the case of Rajendra Singh
(supra) the appellants could not have resisted the claim before the Tribunal on
the basis of the fake policy because the insurance company at that stage had no
knowledge that the policy was fake. The law is settled that the issue of fraud
can be raised at any stage of legal proceedings including appeal or revision
because fraud vitiates everything. A judgment or decree obtained by fraud is a
nullity.
11. Moreover, the fact that there was no valid insurance policy covering
the vehicle of respondent No.4 is a negative fact and the insurance company
cannot be asked to prove a negative fact by leading evidence as held by a
coordinate bench of this Court in MACApp.190/2014. The Court held that on the
contrary the burden to establish the fact that the vehicle was insured is upon
the claimant.
12. As a result this Court is of the view that at the time of the accident
there was no valid insurance coverage in respect of the offending vehicle. No
doubt the legislative intent behind the motor vehicles act is clear. The victims of
road accident should not be left remediless merely because of dispute between
the insured and the insurer.
13. This case was remanded back to the Tribunal for adducing additional
evidence and has returned back. By adducing additional evidence, the Appellant
Insurer has been able to prove that the policy produced during the trial was a
clear case of misrepresentation as far as the dates of validity are concerned.
This was a fraudulent act on the part of the owner to change the dates.
14. It is noted that the contention of misrepresentation was raised belatedly by
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the Insurance company only in the objection in Misc case No.14/2015. Nothing
was produced in the main claim proceedings due to which the Tribunal
proceeded on the basis that the Insurance Policy was valid on the date of the
accident. Relying on the case of New India Assurance Co.Ltd Vrs Narayan
Singh & Others reported in 2025 INSC 1178, the impugned judgement and
award dated 05.06.2015 is partially modified. The appellant/Oriental Insurance
Company shall not recover the amount of Rs.3,19,250/- already withdrawn by
the claimant/respondents. However, the claimant/respondents shall be at liberty
to realise the remaining amount of the award from the respondent No.4/M/s
Dudhnoi Oil Station, owner of the vehicle AS-25 C 3036 (Oil tanker), in
accordance with law.
15. The amount deposited by the appellant/insurance before this Court
by way of statutory deposit of Rs. 25,000/- and the balance amount of
Rs.3,19,250/- shall be refunded to the appellant after due verification.
16. The appeal is allowed and the impugned judgment stands modified
to the extent indicated above.
18. Registry is directed to return the TCR forthwith.
JUDGE
Comparing Assistant
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