Page No.# 1/10 GAHC020003862019 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH Case No. : MACApp./11/2019 THE UNITED INDIA INSURANCE CO.LTD. REPRESENTED BY ITS BRANCH MANAGER, DIMAPUR, N/L VERSUS RITA TIMUNGPI AND 2 ORS W/O THE DECEASED BORSING TERON @ BORSING TERANG, REPRESENTED BY SMTI. RITA TIMUNGPI, PERMANENT R/O BALIPATHAR, KARBI- ANGLONG,ASSAM, TEMPORARY RESIDING NEAR NEW FIELD CHECK GATE, GOLAGHAT ROAD, DIMAPUR, N/L 2:DORSON KRO S/O LATE BALIRAM KRO R/O TARALANGSO VILLAGE DIPHU KARBI-ANGLONG ASSAM(DRIVER OF VEHICLE NO.AS-23/6063-GYPSY) 3:MILON TANTI S/O J TANTI R/O LAHORIJAN KHATKHATI KARGI-ANGLONG ASSAM (OWNER OF VEHICLE NO.AS-23/6063-GYPSY Advocate for the Petitioner : TAYONGCHUBA, PFOSEKHO PFOTTE Advocate for the Respondent : B. N. SARMAH (R-1), IMTIWAPANG Page No.# 2/10 BEFORE HON'BLE MR. JUSTICE KALYAN RAI SURANA ORDER Date : 08.09.2025 Heard Mr. Tayongchuba, learned counsel for the appellant. Also heard Mr. B.N. Sarmah, learned counsel appearing for the respondents. 2. By filing this appeal, the appellant i.e. the United India Assurance Co. Ltd. has assailed the order and award dated 20.02.2019, passed by the learned Member, Motor Accident Claims Tribunal, Dimapur, Nagaland in MAC Case No. 20/2013, thereby awarding a compensation to the extent of Rs.19,65,690/- in favour of the respondent no.1(a), who had made claim on the death of her husband, namely, Borsing Teron @ Borsing Terang. The respondent no.1(a) is the claimant and the wife of the deceased and respondent nos. 1(b) to 1(f) are the sons of the deceased. 3. The case before the learned Tribunal is to the effect that their predecessor-in-interest, who was pedestrian was knocked down by a vehicle (Gypsy) bearing registration No. AS-23-6063 on 05.10.2011 and he had expired on 19.07.2013 after being treated for the grievous injuries and fractures at Bokajan Hospital, District Hospital, Dimapur, Zion Hospital, Dimapur, Gauhati Medical College and Hospital, Guwahat, GNRC, Guwahati and lastly at District Hospital, Dimapur. 4. On the basis of pleadings, the following issues were framed by the learned Tribunal: Page No.# 3/10 (i) Whether the deceased received injuries in vehicular accident on 05.10.2011 involving vehicle B/R No.AS- 23/6063(Gypsy). If so, what is the cause of the accident? (ii) Whether the deceased died on 19.07.2013 and was having continuous treatment and post-mortem was conducted on the cadaver to ascertain the cause of death? (iii) Whether there was a regular case registered and the driver of the vehicle has been charge-sheeted/ awarded with punishment? (iv) Whether the deceased was an earning member and 46 years old? (v) Whether the claimants are entitled to compensation under the provision of Sec.166 M.V. Act, if so, to what extent and payable by whom? 5. In support of the claim, the respondent no.1(b), namely, Sri Verang Terang was examined as PW-1. He had exhibited the following documents, viz., claim petition (Ext.P-1), re-cast petition [Ext.P-1(a)], police report (Ext.P-2), driving licence of the driver (Ext.P-3), vehicle documents in series (Ext.P-4), insurance police (Ext.P-5), medical document and cash memos in series including X-Ray report (Ext.P-6), certificate issued by the District Hospital regarding the cause of death (Ext.P-7), succession certificate (Ext.P-8), death certificate (Ext.P-9), service record (Ext.P-10). The PW-1 had stated that on 05.10.2011, he was walking with his father where the accident had occurred. His father was walking ahead of him towards Bokajan and the offending vehicle had knocked down his father. The vehicle owner as well as the appellant Insurance Company had cross-examined said PW-1. 6. The claimants had examined one Gopal Dey as PW- 2. He claims to have witnessed the accident. The appellant had cross-examined the said PW-2. Page No.# 4/10 7. The Branch Manager of the appellant company also examined himself as DW-1 and he was cross-examined on behalf of the claimant. Thereafter, the learned Tribunal had heard the matter. On behalf of the claimants as well as the appellant, the written submission was also filed. 8. The learned Tribunal had appreciated the materials available on record including the evidence tendered by both sides and decided all the issues in favour of the claimants by holding in respect of issue no. 1 that the cause of accident was due to rash and negligent driving by the driver of the offending vehicle in which the deceased received injuries in the said vehicular accident on 05.10.2011. In respect of issue no.2, the learned Tribunal took note that the post mortem was not conducted. However, based on the evidence on record, it was held that the oral evidence of the PW-1 and DW-1 and the documentary evidence corroborates each other to prove that the deceased died on 19.07.2013 due to injury arising out of the vehicle accident on 05.10.2011. The issue no.3 was also decided in favour of the claimant by holding that it is immaterial to consider whether a regular case was registered or not or whether the driver was punished. By further holding that the scope of the Tribunal was only to consider that there was an accident involving a motor vehicle and that a person who suffers wrong or injury due to fault of any person in connection with the use of the motor vehicle. In respect of issue no.4, the learned Tribunal considered the evidence including the service book of the deceased and in respect of issue no.5, considering the salary and further prospects, an award to the extent of Rs.19,65,690/- was awarded. Page No.# 5/10 9. The learned counsel for the appellant had urged that though the accident took place on 05.10.2011 and the injured person expired on 19.07.2013, without producing any post mortem report, the cause of death was never established by the claimants. Therefore, it is specifically submitted that the appellant had not been given any opportunity of the cross-examining of the witnesses. In this regard, the submission was modified by stating that the doctors were not examined by the claimants by producing them as witnesses and therefore, there is no opportunity to the appellant to cross-examine the doctors or hospitals where the deceased was treated. 10. Heard both sides on the submissions made by the learned counsel for the appellant. 11. In this case, the trial Court records of the Tribunal does reflect that the appellant insurer was granted reasonable opportunity to cross-examine PW-1 and PW-2. Though the trial Court record was handed over to the learned counsel for the appellant, no worthwhile cross-examination could be shown to dispute any of the exhibited documents. On a pointed query of the Court, the learned counsel for the appellant has submitted that he had not previously consulted the TCR from the Tribunal. 12. It is also seen that the appellant has also tendered evidence by examining the Branch Manager of the United India Assurance Co. Ltd., Dimapur Branch as DW-1. His cross-examination is found to be extracted under paragraph 8 of the impugned opinion. Page No.# 6/10 13. The claimants in the evidence of PW-1 had exhibited the police report as Ext. P-2, which is a copy of the accident report issued by the Officer-in-Charge, Khatkhati Police Station, District Karbi Anglong. The records do not reveal that any objection was filed on the introduction of the evidence in form of the police report (Ext.P-2). In the evidence of DW-1, the DW-1 has admitted that vehicle (Gypsy) baring registration No. AS-23-6063 was insured by the Duliajan Branch of their company which was valid from 22.09.2011 to 21.09.2012. The DW-1 has also admitted that the police of Khatkhati PS had registered a case vide GDE No. 165/2011. In the evidence of DW-1, he has stated that no regular case was registered. There was no mechanical report of the vehicle and there was no post mortem report to establish the cause of death of the deceased and that there was no income certificate filed in support of the claim. 14. However, the DW-1 in his deposition before the learned Tribunal had referred to the document relating to deceased drawing salary after the accident and on 01.07.2012, he was drawing salary of Rs.11,300/- and referred it as Ext. P-8. In his cross-examination, the said witness had stated that he has no contradiction with regard to Ext.P-8 and Ext.P-10 respectively being the succession certificate as next of kin and service record. 15. The learned Tribunal has determined the loss of earning based on the projection regarding salary income of the deceased as Rs.19,000/-. However, on a perusal of the record, it is surprising that Ext.P-8 is a photocopy of certificate under the caption “to whom it may concern”, signed by the Addl. Deputy Page No.# 7/10 Commissioner, Karbi Anglong. The said certified merely states that the respondent nos. 1(a) to 1(f), are the next of kin of the deceased, late Borsing Terang. The document which is exhibited as Ext. P-10 is the photocopy service book of the deceased which refers to his pay fixation of Rs.11,300/- as on 01.07.2012. The said Ext.P-10 was not proved in original. However, as per the contents of the said photocopy of the service book, it merely contains an entry at page 61 of the TCR that the deceased had availed one month earned leave vide office memo referred therein w.e.f. 08.10.2011 to 07.11.2011, which was counter signed by the Sub-Divisional Primary Education Officer, Bokajan Sub-Division and it contains an entry of 30 days earned leave granted to the deceased vide memo referred therein w.e.f. 17.02.2012 to 16.03.2012. Therefore, the said document (Ext.P-10) does not contain any entry to the effect that the deceased was continuously absent from his duty from 05.10.2011 till his death on 19.07.2013. Moreover, the learned Tribunal is found to have calculated monthly loss of income by taking into account the monthly income of Rs.11,300/- with 30% addition towards further prospects. 16. Therefore, on an appreciation of the materials available on record, in view of the entries contained in the service book showing intermittent thirty days absence of the deceased, the Court is of the considered opinion that the respondent nos. 1(a) to 1(f), who are the claimants before the learned Tribunal have failed to demonstrate that the deceased was totally incapacitated from the date of accident i.e. 05.10.2011 till his death i.e. 19.07.2013. In paragraph 8 of the claim petition, it has been projected that the deceased had suffered multiple nature grievous injuries and Page No.# 8/10 subsequently died during treatment. In the evidence of claimant respondent no.1, there is no statement by the PW-1 regarding continuous bed ridden condition of his father and without referring to the relevant date regarding medical treatment and the period of hospitalization, all the medical documents were exhibited as Ext.P-6 and the certificate of death issued by the Department of Health Services was marked as Ext. P-9. 17. In the absence of any assistance from the learned counsel for the appellant, the Court has examined the TCR. The ultrasound examination report dated 25.06.2011 issued by Daisy Scan Lab (Ext.P-6) shows that the deceased was suffering from “both renal calculi and right ureteric calculi”. This does not relate to the injuries suffered in the vehicular accident. Respondent no.1 has submitted a medical interim bill for the period from 16.05.2012 to 19.05.2012, but the documents available at pages 82-92 of the TCR do not reflect the name of the illness. Similarly, the Zion Hospital bill available at pages 99-101 also does not mention the name of the illness. Other documents at pages 93-98 and 102-108 likewise do not indicate the illness. However, the Zion Hospital discharge summary shows that the deceased was hospitalized from 05.10.2011 to 07.10.2011 for injuries sustained in the accident. Therefore, there is no evidence to establish that the deceased was under continuous treatment from 05.10.2011 till his death. 18. Therefore, the Court is unable to concur with the finding of the learned Tribunal that the deceased was under continuous treatment by holding that the oral evidence of PW-1 and DW-1 and the documentary evidence do not corroborate with each Page No.# 9/10 other to prove that the deceased Borsing Terang died on 19.07.2013 due to injuries arising out of vehicle accident on 05.10.2011. In the opinion of the Court as the accident took place on 05.10.2011, the learned Tribunal ought to have recorded finding as to whether in terms of the service record (i.e. Ext.P-10), showing that the deceased has only availed intermittent leave, the claimant has been able to prove that the deceased was under continuous treatment for the accident. 19. As the said relevant and essential facts have not been gone into by the learned Tribunal, the Court is inclined to set aside the impugned order and award dated 20.02.2019, passed by the learned Member, Motor Accident Claims Tribunal, Dimapur, Nagaland in MAC Case No. 20/2013, and remand the matter for a fresh decision. 20. It may be mentioned that the issue regarding continuous treatment after the accident or the proximate cause of death must be determined by the learned Tribunal on the basis of the evidence on record. Therefore, based on the available documents alone, it would not be appropriate for this Court, in the exercise of its appellate jurisdiction, to engage in fact-finding or to render a conclusive finding regarding the proximate cause of death, which arose from the accident that occurred on 05.10.2011. Such a determination can only be made through the examination of witnesses and evaluation of the evidence on record. Accordingly, this Court has no alternative but to remand the matter to the learned Tribunal for a fresh decision in accordance with law. 21. Having regard to the nature of claim made, in the Page No.# 10/10 event any of the parties to the proceedings make a prayer before the learned Tribunal to allow them to adduce additional evidence, the same shall be considered by the learned Tribunal in accordance with law. 22. The Registry shall transmit back the records of the learned Tribunal as expeditiously as possible. 23. As the appellant and the respondent nos. 1(a) to 1(f) are represented through their learned counsel, both sides are permitted to appear before the learned Member, Motor Accident Claims Tribunal, Dimapur, Nagaland on 25.09.2025, and by producing a certified copy of the order, seek further order from the said learned Tribunal. 24. This appeal stands partly allowed to the extent as indicated above, leaving both parties to share their own costs. Sd/- JUDGE Comparing Assistant