1 MACApp./269/2013 Page 1 GAHC010131542013 2026:GAU-AS:7814 IN THE GAUHATI HIGH COURT HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH) MACApp./269/2013 New India Assurance Co. Ltd., Having Its Registered Office At New India Assurance Building 87 Mahatma Gandhi Road, Fort, Mumbai-400001 with One of Its Regional Office At G.S. Road, Bhangagarh, Guwahati-5, Represented By its Chief Regional Manager. …..Appellant -Versus- 1. Kritanjali Dutta, W/o Late Rajesh Dutta. 2. Sinmoy Dutta, S/o Late Rajesh Dutta. 3. Paniram Dutta Father of the Deceased S/o Late Kaneswar Dutta. 2 MACApp./269/2013 Page 2 4. Smti Putu Dutta Mother of the Deceased W/o Sri Paniram Dutta All are residents of Village-Hatiali Sid Siding P.S. and P.O. Chabua-786184. District-Dibrugarh, Assam Claimant No. 2, 3, 4 will be Represented by Claimant No. 1 Smti Kritanjali Dutta Presently Address C/o Sri Subhas Sarmah Building O. 91 Survey P.S. Dispur, P.O. Dispur 781006, District-Kamrup-M. Assam. 5. Sankar Prasad, S/o Sri Shyamdip Prasad, R/o Ledo Bazar, P.S. and P.O. Ledo 786182, District-Tinsukia, Assam, Owner of the Vehicle No. AS-23/E-1694. 6. Md. Sahid Ali, S/o Late Chamat Ali, Village-Jharna Basti, Ledo 786182, P.S. and P.O. Ledo, District-Tinsukia, Assam, Driver of Vehicle No. AS-23/E-1694. 7. The Bajaj Allianz General Insurance Co. Ltd. A.T. Road, Tinsukia Branch. Represented By Its Guwahati Office G.S.Road, Ulubari, Guwahati-781007, District-Kamrup (M), Assam, Insurer of Vehicle No. As-01/AD-507. 3 MACApp./269/2013 Page 3 [1] Heard Ms. M. Choudhury, the learned counsel for the appellant. Also heard Mr. D. Mondal, the learned counsel for the respondent Nos. 1, 2 and 4 as well as Mr. R. Goswami, the learned counsel for the respondent No. 7. [2] This appeal under Section 173 of the Motor Vehicles Act, 1988 has been preferred by the appellant, M/s New India Assurance Co. Ltd., impugning the judgment and award dated 15.05.2013, passed by the Motor Accident Claims Tribunal No. 2, Kamrup at Guwahati, in MAC Case No. 208/2009. [3] By the aforesaid judgment, the present appellant was directed to pay a compensation amount of Rs. 65,46,000/-, along with ……Respondents For Appellant Ms. M. Choudhury, Advocate For Respondent(s) Mr. D. Mondal, Advocate Mr. R. Goswami, Advocate Date of Hearing : 10.03.2026 Date of Judgment : 03.06.2026 BEFORE HON’BLE MR. JUSTICE MRIDUL KUMAR KALITA JUDGMENT AND ORDER 4 MACApp./269/2013 Page 4 an interest @ 6% per annum from the date of filing of the claim petition till realization. [4] The facts relevant for consideration of the instant appeal, in brief, are that the present respondent Nos. 1, 2 and 4 as claimants have approached the Motor Accident Claims Tribunal No. 2, Kamrup at Guwahati by filing an application under Section 166 of the Motor Vehicles Act, 1988claiming compensation of Rs. 1,00,00,000/- (Rupees One Crore only) from the appellant Assurance Company on account of death of their husband/father/son Rajesh Dutta in a motor vehicular accident. It is contended by the claimants in their application under Section 166 of the Motor Vehicles Act, 1988 before the Motor Accident Claims Tribunal that on 29.11.2008, when the deceased Rajesh Dutta was proceeding from Dibrugarh to his residence in a Maruti vehicle bearing Registration No. AS-01- AD-5077. When he arrived near Sealkati T.E., one Truck bearing Registration No. AS-23-E-1694, which was proceeding from opposite direction in a rash and negligent manner, knocked the Maruti vehicle, as a result of which Rajesh Dutta sustained grievous injury and died on the spot. [5] It is also contended in the application filed by the claimants before the Motor Accident Claims Tribunal that after the accident, an FIR was lodged, on the basis of which Chabua P.S. case No. 158/2008 was registered under Sections 279/304/427 of the Indian Penal Code, 1860. The Opposite 5 MACApp./269/2013 Page 5 party Nos. 1 and 2 as well as the present appellant as opposite party No. 3 filed written statement against the claim of the claimants. [6] On the basis of the pleadings of the parties following issues were framed by the Motor Accident Claims Tribunal No. 2, Kamrup at Guwahati: - i. “Whether the victim Rajesh Dutta died as a result of injuries sustained by him in the alleged road accident dated 29.11.2008 involving vehicle No. AS-23- E-1694 (Truck), and whether the said accident took place due to rash and negligent driving of the driver of the offending vehicle?” ii. “Whether the claimants are entitled to receive any compensation and if yes, to what extent and by whom amongst the opposite parties, the said compensation amount will be payable?” [7] During the inquiry the claimant’s side examined two witnesses, who were also cross-examined by opposite parties. The opposite party, i.e., the present appellant adduced no evidence countering the claim of the claimant. Ultimately, by the judgment and award which has been impugned in this appeal, the Motor Accident Claims Tribunal had come to 6 MACApp./269/2013 Page 6 affirmative findings as regards both the issues which were framed by it and directed the present appellant to pay the compensation in the manner which has already been described in the foregoing paragraphs of this judgment. [8] Ms. M. Choudhury, the learned counsel for the appellant has submitted that the Motor Accident Claims Tribunal No. 2, Kamrup at Guwahati has erred in directing the present appellant to pay the entire compensation amount. She submits that in the written statement filed by the present appellant before the Motor Accident Claims Tribunal, a specific plea was taken that the accident was caused due to head-on collision between two vehicles, i.e., the truck as well as the vehicle in which the deceased was there, i.e., the Maruti vehicle. She submits that though the insurance company has taken specific plea regarding contributory negligence by the driver of the Maruti vehicle where the deceased himself was present, however, the Motor Accident Claims Tribunal did not frame any issue, in that regard and have not considered the aspect of contributory negligence committed by the deceased, which resulted in the accident. [9] The learned counsel for the appellant further submits that the Motor Accident Claims Tribunal also erred in coming to the conclusion in relying on the testimony of the eye-witness, i.e. CW-2. She submits that during cross-examination the CW-2 has categorically stated that the vehicle in which she was travelling was moving behind the vehicle in which the 7 MACApp./269/2013 Page 7 deceased was travelling and it was a foggy night. She submits that the visibility during the foggy night may not be clear and this aspect was not considered by the Tribunal. She has further submitted that the Motor Accident Claims Tribunal has not discussed anything regarding the aspect of contributory negligence by the deceased himself or regarding the liability of the opposite party No. 4, i.e., the present respondent No. 7 to share the liability of paying the compensation which was directed to be paid to the claimants proportionate to the contributory negligence of the deceased. She further submits that in the Accident Information Report as well as in the FIR, it was clearly stated that both the vehicles were involved in the accident and it occurred due to head on collision between two vehicles, but this aspect was not taken into consideration by the Motor Accident Claims Tribunal. [10] The learned counsel for the appellant further submits that as regards assessment of the income of the deceased the Motor Accident Claims Tribunal also erred in concluding that the annual income of the deceased was Rs. 3,34,980/-. She submits that the income tax return for the year2008-2009,on the basis of which the earning of the deceased was assessed by the Tribunal was not proved in accordance with law by examining the authorities, who have issued the said income tax returns. [11] The learned counsel for the appellant has further submitted that the income tax return submitted by the wife of the 8 MACApp./269/2013 Page 8 deceased after the death of Rajesh Dutta for the year 2009 and 2010 shows that the business of the deceased is still giving some income, therefore, the extent of loss of earning of the claimants may not be as assessed by the Motor Accident Claims Tribunal. She orally submits that the insurance company may be allowed to file an additional affidavit under Order 41 Rule 27 CPC, to bring on record the said document. [12] The learned counsel for the appellant has cited following rulings in support of her submission: - i. “Sarla Verma & Ors. Vs. Delhi Transport Corporation” reported in “(2009) 6 SCC 129.” ii. “National Insurance Co. Ltd. Vs. Pranay Sethi” reported in “(2017) 16 SCC 60.” iii. Smt. Payari Devi & 4 Ors. Vs. Sri Manoj Kumar Jain and Anr. (MACApp. No. 377/2018). iv. “State of Haryana &Anr. Vs. Jasbir Kaur” reported in “(2003) 7 SCC 484.” v. “T.O. Anthony Vs. Karvarnan And Others” reported in “(2008) 2SCC (Cri)738;” [13] On the other hand, Mr. D.Mondal, the learned counsel for the claimants has submitted that the Tribunal has rightly assessed the negligence of the driver of the truck as the cause for the accident in which the deceased Rajesh Dutta died. He submits that the Tribunal, while considering the issue No. 2 framed by it, has categorically come to the finding that it was the driver 9 MACApp./269/2013 Page 9 of the truck, who was responsible for the accident which resulted in the death of Rajesh Dutta. [14] He further submits that the evidence of independent eye- witness, i.e., CW-2 clearly indicates that the offending vehicle hit the Maruti car from the front side after coming on the wrong side of the road, which indicates that it was the driver of the truck who was negligent in driving the said truck which resulted in the said accident. [15] The learned counsel for the claimants further submits that in the grounds taken by the appellant in the memorandum of appeal, no such ground has been taken that the Tribunal was wrong in relying on the income tax return in assessing the income of the deceased. He further submits that the insurance company also did not adduce any evidence before the Tribunal during the inquiry to counter the case of the claimant; therefore, he submits that the Tribunal has correctly arrived at the finding as regards the income of the deceased in computing a just compensation. [16] The learned counsel for the claimants, however, submits that the compensation awarded to the claimants is on the lower side, considering the fact that the Tribunal has added against future prospect only 30% of the income of the deceased, whereas, it ought to have been 40% as per the judgment of 10 MACApp./269/2013 Page 10 Apex Court in the case of “National Insurance Co. Ltd. Vs. Pranay Sethi” reported in “(2017) 16 SCC 680.” [17] He also submits that considering the fact that the deceased was more than 35 years of age at the time of his death, but has not completed the age of 36. Hence, the multiplier in computing the compensation ought to have been 16 in place of 15. [18] On the other hand, Mr. R. Goswami, learned counsel for the respondent No. 7 has submitted that since the Tribunal has categorically given a finding that it was the driver of the offending truck, who was at fault and because of which the accident occurred. The respondent no. 7, which is the insurer of the Maruti vehicle in which the deceased was travelling, is not liable to share the liability for the compensation to be paid to the claimants. He further submits that even if the owner of the Maruti vehicle was found to have contributed to the cause of accident, the insurance company is not liable to indemnify the owner. [19] He also submits that owner of the vehicle of the Maruti car cannot be regarded as a third party as regards the insurer of the said vehicle. Hence, he submits that the insurer of the Maruti car is not liable to pay any compensation. In support of his submissions, he has cited following rulings: - 11 MACApp./269/2013 Page 11 i. “Raj Rani &Ors. Vs. Oriental Insurance Co. Ltd. & Ors.” reported in “(2009) 13 SCC 654;” ii. “T.O. Anthony Vs. Karvarnan And Others” reported in “(2008) 2SCC (Cri)738;” iii. “M/s Tamil Nadu State Transport Corporation, Tanjore Rep. By Its MD Vs. Natarajan And Others” reported in “(2003) 6 SCC 137.” [20] I have considered the submissions made by the learned counsel for both sides and have gone through the materials available on record. I have also gone through the rulings cited by the learned counsel for both sides. [21] The phrase “contributory negligence” itself connotes that there is a contribution of negligence on the part of the person to whom it is being referred to. If the claimant is found wanting in taking reasonable care which could have averted the accident, he shall be treated to have contributed to the negligence which resulted in the accident. However, if there is no material on record to indicate that the accident could have been averted by taking reasonable care by the claimant. He cannot be said to have contributed in occurrence of the accident. [22] In the instant case, though there is evidence to indicate that when the accident occurred it was a foggy night, but there is no evidence to suggest anything regarding extent of visibility. In absence of any evidence indicating the percentage of 12 MACApp./269/2013 Page 12 visibility, it cannot be concluded that the testimony of the CW- 2, who deposed that he saw the offending truck hit the Maruti vehicle head on coming from a wrong side, cannot be relied upon. If the vehicle driven by the deceased was on the right side and the offending truck came from a wrong side and dashed it from the front side on a foggy night, it clearly indicates, as held by the Motor Accident Claims Tribunal, that the driver of the offending truck was at fault for the accident. [23] There may be a case of the deceased not using indicator lights or fog lights of his vehicle while driving, which could have indicated negligence on his part. However, there is no evidence on record to suggest that any such lapse was there on the part of the deceased while driving the vehicle. The principle of “res ipsa loquitor” may not be extended to such an extent to presume contributory negligence on the part of driver of the vehicle in which the deceased/injured was travelling, in all cases where the accident is a result of head on collision. [24] Since, the appellant insurance company is pleading contributory negligence on the part of the deceased, apart from showing that the night on which the accident occurred was a foggy night, it has to adduce some evidence to indicate that the deceased was also at fault of not taking reasonable care while driving the vehicle on a foggy night. However, the appellant insurance company has failed to adduce any 13 MACApp./269/2013 Page 13 evidence to show the same. As such, this court does not find any evidence on record to suggest contributory negligence on the part of the deceased, therefore, the impugned judgment and award cannot be faulted on that count. [25] As regards the contention that the Tribunal erred in relying on the income tax return for computing the annual income of the deceased, this court is of the considered opinion that since strict rules of evidence is not applicable to an enquiry under Motor Vehicles Act, 1988 under Section 166 of the said Act, non-summoning of an official from Income Tax Department may not be a valid ground for discarding the income tax return documents exhibited by the claimants and which could not be contradicted by the insurance company during cross examination of the witness, who exhibited the same. The income tax returns, being statutory documents, can be the basis for determining the income of the deceased and there is no fault on this count by the Motor Accident Claims Tribunal. [26] The contention of the learned counsel for the appellant that even after death of the deceased, the business of the deceased is continuing and there is no loss of income from the said business, there appears to be no materials on record to suggest that. A mere oral prayer, by the learned counsel for the appellant, to adduce additional evidence, without filing any written application under Order 41 Rule 27 of the Code of Civil Procedure, 1908,cannot be allowed at this belated stage. 14 MACApp./269/2013 Page 14 [27] As regards the prayer of the learned counsel for the claimants/respondents for enhancement of the quantum of the compensation awarded to the claimants on grounds pleaded by him during his oral submission, this court is of considered opinion that, in view of the observations made by the Apex Court in the case of “Ranjana Prakash Vs. Divisional Manager” reported in “(2011)14 SCC 639,” unless a cross- objection is filed by the claimants, such enhancement of quantum of compensation cannot be allowed in an appeal preferred by the insurance company. For the sake of convenience, the observation made by the Apex Court in the aforesaid case is quoted herein below: - “8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by the owner/insurer for reduction. The 15 MACApp./269/2013 Page 15 High Court cannot obviously increase the compensation in an appeal by the owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation.” [28] In view of the discussions made and the reasons stated in the foregoing paragraph, this court finds no merit in the instant appeal. Accordingly, same is dismissed. [29] Send back the records of M.A.C. Case No. 208/2009 to the concerned Tribunal, along with a copy of this judgment. The appellant/insurance company is directed to deposit the remaining part of the compensation awarded by the Tribunal, to the claimants within 4(four) weeks from the date of this judgment. [30] The statutory deposit made by the appellant before the Registry of this court at the time of filing of this appeal may be returned back to the appellant after proper verification. [31] This appeal is, accordingly, dismissed. JUDGE Comparing Assistant Munmun Boruah Digitally signed by Munmun Boruah Date: 2026.06.05 14:25:36 +05'30'