Page No.# 1/13 GAHC010012202018 2026:GAU-AS:11471 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : MACApp./306/2018 NATIONAL INSURANCE COMPANY LIMITED (SUBSIDIARY OF GENERAL INSURANCE CORPORATION OF INDIA ) REGISTERED HEAD OFFICE AT 3 ,MIDDLETON STREET, CALCUTTA -700071 REPRESENTED BY THE ASSISTANT MANAGER, GAUHATI REGIONAL OFFICE , BHANGAGARH, GUWAHATI -781005. VERSUS KUSHUNG BASUMATARY AND 6 ORS S/O LATE AKONDA BASUMATARY 3:THE DIVISIONAL MANAGER ORIENTAL INSURANCE COMPANY LTD BONGAIGAON DIVISIONAL OFFICE P.O. AND DIST. BONGAIGAON ASSAM 4:SRI BIMAL PATHAK (OWNER) S/O ARUN PATHAK VILL BHAKRAPARA PART-II P.O..P.S. AND DIST. BONGAIGAON ASSAM PIN 783380 5:SRI PHULESWAR RAY (OWNER) S/O SRI LATISH CH RAY R/O VILL .BIJULI BARI P.O. CHANDRAPARA P.S. AND DIST KOKRAJHAR BTAD ASSAM PIN. 783370 Page No.# 2/13 6:SRI DANJIT RAY S/O LATE THANDA RAY VILL. BASHBARI P.O. BOITAMARI P.S. ABHAYAPURI DIST. BONGAIGAON ASSAM PIN. 783389 7:SRI KRISHNA BARMAN S/O DEBAN CH. BARMAN R/O VILLAGE BIJOYGAON P.O.AND P.S. BASUGAON DIST. CHIRANG ASSAM PIN .78337 Advocate for the Petitioner : MS. R D MOZUMDAR, MS. C MOZUMDAR,MR. S P SHARMA Advocate for the Respondent : MR. A DUTTA (R3), MR. R C PAUL (R-3),MRS. P M DUTTA (R3),MR. M KHAN (R1),KAKALI DEVI (R1),MR. J RAHMAN (R1) BEFORE HONOURABLE MRS. JUSTICE YARENJUNGLA LONGKUMER Date : 13-08-2026 :JUDGMENT&ORDER (ORAL): The instant appeal under section 173 of the Motor Vehicles Act 1988 has been preferred against the order dated 06/06/2017 passed by the learned MACT, Bongaigaon in MAC case number 189/2012 by the appellants/National Insurance Company Limited. 2. Heard learned counsel Ms R.D. Mozumdar for the appellant. Also heard Mr. R. C. Paul, learned counsel for the respondent No.3/Oriental Insurance Company and Mr. M. Khan, learned counsel for the claimant/respondent no 1. Page No.# 3/13 3. The brief facts leading to the filing of this appeal is that on 22.06.2012, the deceased Amit Basumatary as pillion rider along with the driver Krishna Barman were proceeding from North Salmara towards Bongaigaon by vehicle bearing registration No.AS-19/B-0659 (motor Cycle) and when they reached near Bakhalgaon Chowk, suddenly another vehicle bearing registration No.AS- 19/C-2851 (Tata Magic) coming from the opposite direction in rash and negligent manner knocked down the Motor Cycle due to which Amit Basumatary sustained injuries and died on the same day of the accident. 4. 4. It was the case of the claimant/respondent 1 that the deceased was a Car mechanic aged 22 years at the time of the accident and he had a work shop where his earning was Rs.6,000/- per month. It was submitted that a case was registered against the driver of the Tata Magic. In response to the notice, the appellant/opposite party No.1, National Insurance Company, the insurer of the vehicle Tata Magic entered appearance and contested the case by filing written statements denying rash and negligent driving on the part of the vehicle No.AS- 19/C-2851/Tata Magic and also with regard to the road permit, driving license, fitness certificate, registration certificate etc. 5. The respondent No.3/Oriental Insurance company also filed their written statement contending that there was no rash and negligent driving on the part of the driver of the Motor Cycle, and that the deceased was the pillion rider of the motor Cycle and as per the policy condition, a pillion rider is not entitled to receive any compensation from the insurer and the claim petition is liable to be dismissed. 6. After hearing the parties, the learned Tribunal by the impugned judgment and order dated 06.06.2017 awarded an amount of Rs.4,47,000/- to the claimant and directed the appellant/National Insurance Company to pay the Page No.# 4/13 said amount within two months from the date of passing the order. 7. Being aggrieved, the appellant has come before this Court mainly on the ground that there was no eye witness in the said accident and that the accident was a head on collision between the Motor Cycle and the Tata Magic. The claimant who was examined as PW 1 was not an eye witness and the claimant proved the charge-sheet as Ext.4. The charge-sheet clearly mentioned that the accident took place due to rash and negligent driving of Krishna Barman, the driver of the motor cycle. In such circumstances, the learned Tribunal was not justified in coming to a conclusion that the accident took place only due to the fault of the Tata Magic which was insured with the appellant company. 8. The learned counsel for the appellant has also taken the ground that since it was an admitted fact that the accident took place due to head on collision, the compensation should have been directed to be paid by the insurer of both the vehicles as it was composite negligence. More so, when the owners and the drivers of both the vehicles were made parties. The learned counsel therefore prays that the impugned judgment and award may be modified to the effect that there was composite negligence on the part of the Motor Cycle also and prays that the impugned judgment and award may be modified. 9. The learned counsel for the appellant submits that in fact the Tribunal had made contrary finding in the judgment wherein it was held that during cross examination by the contesting opposite party, nothing could be elicited regarding rash and negligent driving of the offending Tata Magic. However, the Tribunal contradicted itself and held in the next sentence that from the evidence of PW 1, both oral and documentary it appears that there was rash and negligent driving of the driver of the Tata Magic. Page No.# 5/13 10. The learned counsel for the appellant has relied on the following judgments:- 1. New India Assurance Co. Ltd vs Bismillah Bai& Others reported on (2009) 5 SCC 112. 2. Bijoy Kumar Dugar vs Bidyadhar Dutta & Ors reported in AIR 2006 SC 1255. 3. Judgment dated 09.11.2018 in MACApp.60/2016 passed by a Coordinate bench of this Court. 4. Judgment dated 15.06.2023 in MACApp.115/2015 passed by a Coordinate Bench of this Court 11. On the other hand Mr. M.Khan, learned counsel appearing for the respondent No.1/claimant submits that there is no denial by the appellant regarding the factum of the accident and the death of the deceased person in the said accident. He has also submitted that the Tribunal had clearly come to the conclusion that there was rash and negligent driving on the part of the driver of the vehicle bearing No.AS-19/C-2851 (Tata Magic). He submits that the claimant was examined as PW 1 and his evidence regarding the fact that the driver of the Tata Magic was at fault was not rebutted by the appellant/Insurer. In fact, the insurer did not adduce any evidence to the contrary. The learned counsel submits that before the Tribunal the insurer did not raise this ground regarding composite negligence and therefore, in the appeal before this Court, the appellant cannot be allowed to raise a new ground. The learned counsel further submits that the insurer had also filed a review application before the learned Tribunal but the same was also dismissed by order dated 13.11.2017. Page No.# 6/13 12. The learned counsel for the respondent 1 further submits that the charge-sheet was exhibited, however, the insurer did not examined any Police Officer or the I.O to clarify the charge-sheet and therefore at this stage, the appellant cannot be allowed to raise the issue regarding composite negligence. 13. The learned counsel Mr. R.C.Paul appearing for the Oriental Insurance Company has also adopted the submission made by the learned counsel for the claimant/respondent. He has submitted that there was no rebuttal by the National Insurance company with regard to the evidence of PW 1. He also submits that the charge-sheet was already exhibited before the Trial Court but the appellant Insurance Company did not examine any witness to clarify the same. Even in the cross-examination of the claimant/PW 1 it has been clearly proved that it was the Tata Magic which was the offending vehicle and that there was no fault on the part of the Motor Cycle. The evidence-in-Chief of the PW 1/claimant could not be shaken during the cross-examination. He has therefore submitted that this appeal is without merit and may be dismissed by this Court. 14. The respondent/claimant has also filed a Cross Objection in MACApp.306/2018 and by filing the Cross Objection, the claimant/respondent has prayed for enhancement of the awarded amount in the award dated 06.06.2017 in MAC case 189/2012. 15. The learned counsel for the claimant/respondent submits that the Tribunal came to a finding that the accident took place due to rash and negligent driving of the driver of the Tata Magic. However, the tribunal has arrived at erroneous calculation regarding compensation to the claimants. The claimant has adduced sufficient evidence to substantiate that the deceased was a car mechanic in profession and earning Rs.6000/- per month but the Tribunal Page No.# 7/13 has failed to consider the same and monthly income of the deceased was taken only as Rs.4000/- per month. The Tribunal has also not awarded any amount towards future prospects, loss of estate, loss of love and affection and loss of consortium. The learned counsel submits that it is well settled in a catena of cases that the parents and children are entitled to be awarded for loss of consortium under the head of Filial Consortium and parental consortium. In the instant case, the claimant being father of the deceased is entitled to be awarded for loss of filial consortium of Rs.40,000/- but the same was not considered while computing compensation. The learned counsel further submits that according to the principles laid down in the Pranay Sethi Case the deceased being a self employed person on fixed salary under the age of 40 years, an amount of 40% should have been added as future prospect. However, the same was not added by the learned Tribunal. 16. The learned counsel for the respondents had relied on the following judgments:- 1. Chandra @ Chanda @ Chandraram and another vs Mukesh Kumar YAdav and others. 2. National Insurance Company Limited vs Pranay Sethi (2017) 16 SCC 680 3. Raj Kumar Das (D) THR.LRS vs National Insurance Co.Ltd reported in 2026 INSC 541 4. Modern Insulators Ltd. v. Oriental Insurance Co. Ltd., reported in (2002) 2 SCC 734 5. Judgment dated 12.12.2024 in MACApp.07/2024 passed by the High Court of Sikkim. Page No.# 8/13 17. With regard to the counter claim of the respondent/claimant, the learned counsel for the National Insurance company/appellant has submitted that the accident occurred in the year 2012 and it was much before the judgment of Pranay Sethi and accordingly, the learned Tribunal has rightly calculated the award under the head of funeral expense and no illegality has been rendered by not awarding any compensation under future prospect or under loss of consortium. 18. I have duly considered the submissions of learned counsel for the parties and perused the records. 19. The claimant/respondent No.1 was examined as PW 1 and in his evidence on affidavit he has stated that his son was riding in the Motor Cycle bearing No.AS-19/B-0659 as pillion rider being driven by his friend and when they reached near Bakhalgaon Chowk, suddenly another vehicle bearing registration No.AS-19/C-2851 (Tata Magic) coming from the opposite direction in rash and negligent manner knocked down the Motor Cycle due to which his son Amit Basumatary sustained injuries and died on the same day of the accident. 20. What is pertinent herein is the cross examination of the respondent/claimant by the appellant/insurer. On being cross-examined by the appellant the claimant/respondent No.1 stated that he does not know the vehicle number which dashed his son but he reconfirmed that his son was dashed by the Tata Magic. Further, in the cross-examination, the respondent No.1/claimant stated that he knows that due to the fault of the Tata Magic, the accident occurred. He deposed that the Tata Magic dashed the Moto Cycle from the front side. 21. The respondent No.1/claimant had also exhibited the charge-sheet as Page No.# 9/13 Ext.4. In the charge-sheet the I.O has stated that during course of investigation, it came to light that Shri Krishna Barman who was driving the Motor Cycle No.AS-19/B-0659 was driving the Motor Cycle carelessly as a result of which the accident occurred. Pertinently, in the charge-sheet itself it is stated that in respect of the Driver of the Tata Magic, there was no witness found against him so the I.O prayed before the Court to discharge him from the case. This would mean that in the criminal case the driver of the Tata Magic was discharged simply because witnesses were not there. In the case of Sithara N.S Vrs Sai Ram General Insurance Co.Ltd, 2025 INSC 1425, the Supreme court held that a chargesheet cannot automatically be treated as conclusive proof of the vehicle’s involvement. It is also seen that the appellant had filed review petition before the learned Tribunal for modification of the award dated 06.06.2017 but after hearing the parties, the said review petition was also dismissed. 22. The appellant herein had no doubt filed written statement before the Tribunal denying the involvement of Tata Magic bearing registration No.AS-19/C- 2851 but the appellant did not examine any defense witness and therefore by merely stating that there is no involvement of the Tata Magic, the same cannot be taken as a proper plea. The plea regarding non involvement of the Tata Magic if at all had to be proved by the insurer by adducing evidence and examining witness. 23. Regarding the evidence of the claimant/respondent, this Court finds that there was no rebuttal defense evidence and also in the cross-examination, the deposition of the respondent/claimant could not be demolished by the insurer/appellant. 24. In the case of Modern Insulators (supra), the Hon’ble Supreme Court has held that in an appeal, the parties cannot urge new facts. From the Page No.# 10/13 proceedings before the Tribunal, it is found that the appellant pleaded in the written statement that the Tata Magic was not involved in the accident and was not responsible for the accident and it was the Motor Cycle which was at fault. However, the appellant did not adduce any evidence to prove the same as the insurer did not examine any witness nor did they exhibit any documents. Further, in the case of Nim Tshering Sherpa (supra), the High Court of Sikkim relying on the case of Modern Insulators Ltd (supra) also held that new grounds cannot be urged in appeal when it is not raised at all before the learned MACT. Hence, it was held that the argument pertaining to vis major, being a new ground in appeal, is not sustainable in law and accordingly disregarded. 25. In view of the above authorities and in view of the facts and circumstances of the present case, this Court is of the opinion that the ground put forward by the appellant regarding composite negligence of the Motor Cycle as well as the Tata Magic on the ground that there was a head on collision between the two vehicles is a new ground taken in the present appeal. 26. This Court upon perusal of the impugned order does not find anywhere that the appellant/insurer had adduced any rebuttal evidence regarding rash and negligent driving of the Motor Cycle. Hence, the ground taken by the appellant regarding the head on collision and the composite negligence of both the vehicle is not sustainable in law and is not considered by this Court. 27. In view of the fact that MACApp. 306/2018 has been found to be without merit and rejected, the counter claim CO 46/2019 is taken up for consideration. 28. This Court has seen that the accident occurred in the year 2012. The claimant had stated in his evidence that the deceased was a Car mechanic and Page No.# 11/13 that he was earning Rs.6000/- per month but no document in the form of salary slip or salary certificate was proved by the claimant. The claimant also did not examine any witness from the workshop to prove the same. Since the actual income was not proved, the Tribunal had taken the income as Rs.4000/- per month. As there is no cogent evidence of income, it is reasonable for the Tribunal to have taken the minimum wages prevailing in the year 2012 which would have been around Rs. 3450/- per month. Therefore, the amount of Rs.4000/- per month has been rightly calculated by the learned Tribunal. This Court therefore does not interfere with the amount awarded under the head of loss of dependency. However, it is seen that the learned Tribunal has not awarded any amount under the head of loss of consortium or loss of estate. Therefore, the award granted under funeral expense amounting to Rs.25,000/- is set aside and alternatively, Rs. 40,000/- is granted as award for loss of filial consortium, Rs. 15,000/- for loss of estate and Rs.15,000/- for funeral expenses. 29. This court also deems it fit to allow 40% as future prospects as the case of Sarla Verma in (2009) 6 SCC 121 as well as Santosh Devi Vrs National Insurance Co.Ltd , (2012) 6 SCC 421 had also recognized addition of future prospects to self-employed/fixed income persons, observing that income cannot be assumed to be remain static. Pranay Sethi in 2017 standardized the percentages rather than creating the concept of future prospects for the first time. 30. The learned counsel for the claimant/respondent has prayed that in view of Pranay Sethi interest of 10% maybe added for every three years. With regard to this submission of the claimant it has come to the notice of this Court that there is a significant judgment of the Supreme Court decided on 17.12.2025 in the case of Hasina Yasmin & others Vrs National Insurance Co.ltd and anr, Page No.# 12/13 2025 SCC OnLine SC 2919, wherein the Supreme Court held as under: “According to us the Constitution bench only provided for an enhancement of 10% in every three-year period with respect to accidents which occurred after 2017, the first enhancement being applied in 2020. Otherwise, as is indicated in the cited decision; which we find, with due respect, difficult to accept, the accident in 2010 is applied with a 10% increase when it is disposed of in 2020 and a further 10% increase if the matter is finally disposed of in 2023. This with due respect is not the purport of the decision in Pranay Sethi, as we understand it. There cannot be any enhancement made with respect to an accident which occurred in the year 1998, since the compensation for loss of estate and consortium as also expenses incurred for funeral is as on that date, which has been standardized by Pranay Sethi at 15,000/-, 40,000/- & 15,000/-, the delay in payment of which is compensated by the interest directed to be paid. We hence respectfully sound a doubt, with all the respect at our command, regarding the enhancement as made in the aforesaid decision to the conventional heads based on Pranay Sethi Being a co-ordinate Bench, we would only refer the matter to a Larger Bench, which we do. The Registry is directed to place the matter before the Hon'ble the Chief Justice of India for appropriate orders”. 31. This Court is therefore of the view that till such time the larger bench adjudicates in the matter there can be no periodic 10% enhancement in respect of a pre Pranay Sethi accident. 32. In view of the observations made hereinabove, the modified total Page No.# 13/13 compensation would stand as under:- 1. Loss of dependency :Rs.4,32,000/- Plus 40% future prospect :Rs.6,04,800/- 2. Funeral expenses :Rs.15,000/- 3. Loss of estate :Rs.15,000/- 4. Loss of consortium :Rs.40,000/- TOTAL COMPENSATION: Rs.6,74,800/- (rupees six lakhs seventy four thousand eight hundred) only. 33. It is stated by the parties that the claimant has already received 50% of the awarded amount which was deposited before the Registry of this Court. The appellant is directed to deposit the remaining amount of the award as modified herein, after deducting the withdrawn amount, before the learned Tribunal within a period of 6(six) weeks from today along with interest at 6% per annum from the date of filing the claim petition as directed by the Tribunal. 34. Registry shall allow the appellant to withdraw the statutory deposit of Rs.25,000/- deposited by the appellant. 35. Registry shall also send back the TCR forthwith. JUDGE Comparing Assistant