Page No.# 1/14 GAHC020003342025 2026:GAU-NL:460 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) KOHIMA BENCH Case No. : MACApp./9/2025 NATIONAL INSURANCE CO. LTD HAVING ITS REGISTERED AND HEAD OFFICE AT PREMISES NO. 18- 0374, PLOT NO. CBD-81, NEW TOWN, KOLKATA-700156 AND REGIONAL AND DIVISIONAL OFFICES IN SEVERAL PLACES, INCLUDING A REGIONAL OFFICE ATGUWAHATI, ASSAM AND A BUSINESS OFFICE AT DIMAPUR IN THE STATE OF NAGALAND VERSUS SMTI IDULNISHA BEGUM AND 7 ORS W/O LATE ABDUL HAKIM, R/O VILLAGE MANIPUR PART II, P.S LAKHIPUR DISTRICT-CACHAR ASSAM, PRESENTLY RESIDING AT NEISATOU COLONY, KHER MAHAL, DIMAPUR, NAGALAND (WIFE OF THE DECEASED) 2:SHRI ABDUL RASHI F/O LATE ABDUL HAKIM R/O VILLAGE MANIPUR PART II P.S. LAKHIPUR DIST- CACHAR-ASSAM. PRESENTLY RESIDING AT NEISATOU COLONY KHEL MAHAL DIMAPUR NAGALAND (FATHER OF THE DECEASED) 3:SMTI. SABURJAN BIBI M/O THE DECEASED R/O VILLAGE MANIPUR PART II P.S. LAKHIPUR DIST- CACHAR-ASSAM. PRESENTLY RESIDING AT NEISATOU COLONY Page No.# 2/14 KHEL MAHAL DIMAPUR NAGALAND (FATHER OF THE DECEASED) 4:KHAMNURAI NESHA MINOR SISTER OF THE DECEASED R/O VILLAGE MANIPUR PART II P.S. LAKHIPUR DIST- CACHAR-ASSAM. PRESENTLY RESIDING AT NEISATOU COLONY KHEL MAHAL DIMAPUR NAGALAND (FATHER OF THE DECEASED) 5:MASTER ABDUL KALAM MINOR SON OF THE DECEASED R/O VILLAGE MANIPUR PART II P.S. LAKHIPUR DIST- CACHAR-ASSAM. PRESENTLY RESIDING AT NEISATOU COLONY KHEL MAHAL DIMAPUR NAGALAND (FATHER OF THE DECEASED) 6:MASTER ABDUL SALAM MINOR SON OF THE DECEASED R/O VILLAGE MANIPUR PART II P.S. LAKHIPUR DIST- CACHAR-ASSAM. PRESENTLY RESIDING AT NEISATOU COLONY KHEL MAHAL DIMAPUR NAGALAND (FATHER OF THE DECEASED) 7:MISS SAMSUN NESHA MINOR DAUGHTER OF THE DECEASED R/O VILLAGE MANIPUR PART II P.S. LAKHIPUR DIST- CACHAR-ASSAM. PRESENTLY RESIDING AT NEISATOU COLONY KHEL MAHAL DIMAPUR NAGALAND (FATHER OF THE DECEASED) 8:SHRI FAYAZ UDDIN S/O IRSHAD ALI R/O KHEL MAHAL NEISATUO COLONY Page No.# 3/14 DIMAPUR NAGALAND. (OWNER OF THE VEHICLE Advocate for the Petitioner : KEDUVI ZHOTSO, MEDO KIKHI,MHALE WEO Advocate for the Respondent : SARIF AHMED, FARHANA AHMED,AMENKA AYEH,JUNJIPA,ARIBEN,YUWANG,LHOUSINO BEFORE HON'BLE MRS. JUSTICE YARENJUNGLA LONGKUMER ORDER 07/09/2026 The present Appeal under Section 173 of the Motor Vehicles Act, 1988, (referred to as the MV Act) has been preferred by the appellant/National Insurance Company Limited challenging the impugned Judgment and Order dated 28.02.2025 passed by the learned Member, Motor Accident Claims Tribunal, Dimapur, Nagaland in MAC Case No. 40/2012. 2. Heard learned counsel for the appellant, Mr. Keduvi Zhotso. Also heard Mr. Sarif Ahmed, learned counsel for the claimant/respondent Nos. 1 to 7 and Mr. Lelimthong P. Yimchunger, learned counsel for the respondent No. 8. 3. The facts pertaining to the instant case is that the claimant/respondents had filed a claim petition under Section 166 of the MV Act before the learned MACT, Dimapur stating that on 26.06.2011, at around 4:00 pm, the deceased person driving Maruti Alto car bearing registration No. NL 01C 5616 was sent to town with the vehicle for some domestic work by the owner of the vehicle. As he did not return home late Page No.# 4/14 in the evening, the owner of the vehicle lodged an FIR at the West P.S Dimapur on the ground that his driver and vehicle was missing since 26.06.2011. On 27.06.2011 the dead body of the driver Abdul Hakim was recovered at the Kathaitoli P.S in Assam and the vehicle Maruti Alto was recovered at Doboka P.S under Nagoan District, Assam. 4. The MAC Appeal No. 40/2012 was therefore preferred by the wife and children of the deceased driver claiming compensation under Section 166 of the MV Act. 5. The learned MACT, Dimapur, Nagaland, after hearing the parties passed the impugned judgment and award dated 28.02.2025 in favour of the claimant/respondents awarding compensation of Rs. 10,20,000/- (rupees ten lakhs twenty thousand) only. 6. Being aggrieved, the appellant has come before this Court on the ground that:- i) the accident leading to the death of the deceased is not an accident involving a motor vehicle within the meaning of the motor vehicles act. Hence, it is not a case where the appellant company would have any liability to compensate the claimants since it has not been established that the deceased has died in an accident involving the use of the vehicle. Therefore, there is no compensation payable by the appellant company. Further, there was nothing on record to indicate the circumstances and with what motive the deceased person was attacked. ii) it is a settled position of law that the Tribunal has to calculate the Page No.# 5/14 income based upon the Net Salary of the deceased after personal deductions and tax deductions if any and not the Gross Salary. However, in the present case, the learned tribunal has awarded the claim based solely on the gross salary without any deductions. iii) the learned tribunal had converted the application under Section 166 of the MV Act into a petition under Section 163A of the MV Act. In view of the conversion, the Tribunal had to follow the provision of the second schedule to the motor vehicles act. In the second schedule it is specifically noted that the amount of compensation so arrived at in the case of fatal accident claims shall be reduced by ⅓ in consideration of the expenses which the victim would have incurred towards maintaining himself had he been alive. However, the learned tribunal instead of deducting ⅓ has deducted ⅕ as personal expenses which is against the provisions of the second schedule. 7. Learned counsel for the appellant has relied on the case of (i) DILIP AGARWAL Vs. RAJSHRI AGARWAL & ORS, reported in (2026) INSC 736 and (ii) RANJU RANI @ RANJU DEVI AND OTHERS Vs. BRANCH MANAGER, THE NEW INDIA ASSURANCE COMPANY LIMITED reported in (2003) ACJ 1588 to supplement his submission that the intention of the persons who took away the Maruti Alto vehicle was to commit murder of the deceased and that the killing was not an accidental murder. He submits that it is murder simpliciter and the murder of the deceased even at the time of use of the Maruti Alto vehicle cannot be a ground to award compensation under the provisions of the motor Page No.# 6/14 vehicles act. He submits that the tribunal had committed an error by not taking into account the relationship between the death of the deceased and the motor vehicle. He submits that the difference between a murder which is not an accident and a murder which is an accident depends on the proximity of the cause of such murder. Relying on the cited cases, learned counsel submits that the intention of the miscreants in the instant case was to kill the deceased and therefore, it is not an accidental murder. Learned counsel therefore prays that the impugned judgment may be quashed and set aside. 8. On the other hand, the learned counsel for the claimant/respondents submitted that the instant appeal is not maintainable basing on the principle of law laid down by the Hon’ble Supreme Court in the case of National Insurance Company Limited Vs. Nicolletta Rohtagi and Others reported in (2002) 7SCC 456. Learned counsel submits that in the case of Nicolletta Rohtagi (supra), the Supreme Court held that the statutory position of the insurer whose right to contest was confined to the grounds available under the then Section 149(2) of the MV Act, unless permission under Section 170 had been obtained. It was further held that an insurer cannot challenge the award on merits including quantum or negligence beyond the grounds in Section 149(2) unless Section 170 permission has been granted. 9. Learned counsel submits that in the instant case the insurer/appellant has not obtained permission from the tribunal under Section 170 of the MV Act. Moreover, the vehicle owner had also contested the claim. He submits that it is only when the vehicle owner fails to contest the claim, Page No.# 7/14 the insurer has the right to contest the claim on all or any of the grounds that are available to the person against whom the claims has been made. Learned counsel therefore submits that the instant appeal is not maintainable and is liable to be dismissed on this ground alone. 10. With regard to the ground taken by the appellant that the cause of the death of the deceased was not an accident involving a motor vehicle within the meaning of the MV Act, the learned counsel relies on the case of RITA DEVI AND OTHERS Vs. NEW INDIA ASSURANCE CO. LTD reported in (2000) 5 SCC 113. He submits that the Hon’ble Supreme Court in the case of RITA DEVI (supra) has conclusively decided the issue by holding that a victim or his heirs are entitled to claim from the owner/insurance company compensation for death or permanent disablement suffered due to accident arising out of the use of the motor vehicle without having to prove wrongful act or neglect or default of anyone in an application under Section 163A of the MV Act. It was further held by the Supreme Court that there are instances where murder can be by accident on a given set of facts. If the dominant intention of the act of felony is to kill any particular person, then such killing is not an accidental murder but, it is a murder simpliciter. However, if the cause of murder or act of murder was originally not intended and the same was caused in furtherance in any other felonious act, then such murder is an accidental murder. Learned counsel for the claimant/respondent further submits that the instant case is squarely covered by the decision of the Supreme Court in the case of Rita Devi (supra). In the Rita Devi case, the deceased who was a driver of an Auto Rickshaw, used to take the auto rickshaw on hire basis. During the course of his duty, some of the passengers had decided Page No.# 8/14 to commit an act of felony by stealing the auto rickshaw, and in the course of achieving the said object of stealing the auto rickshaw, they had to eliminate the driver. In such circumstances, the Supreme Court held that it cannot, but be said that the death so caused to the driver of the auto rickshaw was an accidental murder. The stealing of the auto rickshaw was the object of the felony and the murder that was caused in the said process of stealing the auto rickshaw is only incidental to the act of stealing of the auto rickshaw. Therefore, the Supreme Court held that on the facts and circumstances of the case, the death of the deceased was caused accidentally in the process of committing theft of the auto rickshaw. The Supreme Court therefore held that the trial court had rightly come to the conclusion that the claimants were entitled for compensation. 11. Learned counsel submits that even in the instant case, the intention of the miscreants was to steal the Maruti Alto car. Even in the Final Report of the criminal case, it is the finding of the investigating agency that the unknown miscreants had the intention of theft i.e., by murdering the driver and stealing the vehicle. Therefore, it is evident that the death of the deceased in the instant case was due to an accident occurring out of the use of a motor vehicle. 12. In respect of the contention of the appellant that the tribunal in an application under Section 163A of the MV Act could not have made a deduction towards personal expenses beyond ⅓ as specified in the second schedule of the MV Act, learned counsel by relying on the case of Sarla Verma Vs. DTC reported in (2009) 6 SCC 121 submits that the Hon’ble Supreme Court in the cited case has already set out the formula Page No.# 9/14 to be applied while calculating deduction as the personal and living expenses of the deceased. He submits that in the case of Sarla Verma (supra), it has been laid down that in the case of one dependent, the deduction will be 50% or ½; in the case of two to three dependents, the deduction for personal expenses will be ⅓; in the case of four to six dependents the deduction for personal expenses will be ¼ and when there are more than six dependents, the deduction will be ⅕. He therefore submits that the learned tribunal has rightly deducted ⅕ as the deceased had left behind seven dependents. 13. In view of the above submissions, learned counsel for the claimant/respondents submits that the appellant has failed to make out a case for interference of this Court and the appeal deserves to be dismissed. 14. Learned counsel for the respondent No. 8, Mr. Lelimthong P. Yimchunger, has adopted the submission made by learned counsel for the claimant/respondent and further submits that the Maruti Alto bearing registration No. NL 01C 5616 was duly insured with the National Insurance Company Limited and further there was no breach of the insurance policy and the driving license was valid and legal. And therefore liability if any has to be borne by the appellant. 15. I have duly considered the submission made by the learned counsel for the parties and examined the pleadings as well as the Trial Court Records. 16. Before considering the case on merits the objection regarding the Page No.# 10/14 maintainability of the Appeal may be considered. 17. In the case of United India Insurance Company Ltd Vrs Shila Datta, reported in (2011) 10 SCC 509, a three judge bench of the Supreme Court drew a distinction between an insurer who is merely issued notice under Section 149 (2) and an insurer who is impleaded as a party respondent. The Supreme Court held that where the insurer is properly impleaded as a party respondent by the claimant himself the insurer is entitled to contest the matter on all grounds on all available to the person against whom the claim is made and is not required to obtain permission under Section 170 for that purpose. In the case of Shila Datta (supra), the three Judge Bench has no doubt questioned the correctness of Nicolletta Rohtagi (supra) on certain aspects and referred the matter to a larger bench which is still awaiting adjudication. Nevertheless, in the meantime, the Supreme Court in another decision on 19th March 2026 in the case of National Insurance Company Limited Vs. Gauri Gurudas Gaonkar, in SLP(Civil) No. 11439 of 2023 has reaffirmed the principle in Shila Datta. The Supreme Court held that where the Insurer is impleaded as a party respondent in the claim petition it is entitled to contest the claim on all available grounds including the quantum of compensation, without being restricted to the grounds under Section 149 (2) and without obtaining permission under Section 170. Consequently, the High Court’s dismissal of the insurer’s appeal as not- maintainable was set aside and the matter was remanded for reconsideration of quantum. 18. The decision in Nicolletta Rohtagi (supra) does not compel a Page No.# 11/14 different conclusion. That decision concerns the statutory limitations applicable to an insurer seeking to contest an award beyond the grounds available under Section 149 (2), particularly in the absence of the conditions contemplated by section 170. The subsequent decision in Shila Datta distinguished the situation where the Insurer is itself impleaded as a party respondent by the claimant. The distinction has been subsequently recognized and applied by the Supreme Court in Gauri Gurudas Gaonkar (supra). The fact that the vehicle owner had also contested the claim does not alter the position since the appellant’s right to contest in the present case flows from its status as a party respondent, having been impleaded by the claimants themselves. 19. This Court is therefore of the view that the reliance placed by the claimant/respondents on the case of Nicolletta Rohtagi (supra), to content that the present appeal by the insurer is not maintainable for want of permission under Section 170 of the MV Act is misplaced. It is held that the instant appeal is maintainable and the appeal is taken up for consideration on merits. 20. We now examine the ground taken by the appellant that the death of the deceased in the instant case was not accidental. This Court has perused the Final Report which was filed in the West P.S Case No. 0073/2011 under Section 364/379/302 IPC. In the FR the Investigating Officer has stated that the unknown miscreants had the intention of stealing the Maruti Alto vehicle by murdering the driver. I find force in the submission of the learned counsel for the claimant/respondents that the instant case is squarely covered by the decision of the Hon’ble Supreme Page No.# 12/14 Court in the case of Rita Devi (supra). It is seen that the facts of the case in Rita Devi (supra) are identical to the present case, the only difference being the vehicle was an auto rickshaw in Rita Devi (supra) and in the instant case the vehicle involved was a Maruti Alto. Upon consideration of the facts and circumstances, this Court has no hesitation to hold that the murder of the deceased was due to an accident arising out of the use of motor vehicle as the stealing of the Maruti Alto was the object of the miscreants and the murder that was caused in the said process of stealing the vehicle was only incidental to the act of stealing of the Maruti Alto. The Tribunal has therefore rightly awarded the compensation under the motor vehicle act. 21. In the case of Sarla Verma (supra), the Supreme Court has adopted a standardized formula to bring uniformity and consistency to MAC Awards. The underlying logic is that the larger the number of dependents, the smaller the proportion of income that can reasonably be contributed to the deceased’s own consumption. Therefore it created the standardized formula for practical adjudication. That is why it prescribed for a married deceased with 7(seven) genuine dependents the deduction of ⅕. Therefore, once the factual finding is that there are more than 6(six) dependent family members, Sarla Verma prescribed the standardized deduction of ⅕. This Court therefore does not find any infirmity in the deduction of ⅕ as personal expense by the learned Tribunal. The deduction made towards personal and living expenses have been made in accordance with the settled principles governing such deductions. No error warranting interference has been demonstrated. Page No.# 13/14 22. With regard to the monthly income of the deceased which was taken to be Rs. 5000/- by the tribunal, this Court has seen from the records that the claimants had produced a salary certificate issued by the employer of the deceased which was not rebutted by the appellant before the tribunal. The deceased was not a government employee and no deductions were made by the employer. The tribunal has therefore rightly taken the monthly income of the deceased as Rs. 5000/-. 23. It is well settled that the determination of compensation in a motor vehicle claim is required to be just, fair and reasonable. The tribunal is not expected to adopt a mathematical approach divorced from the evidence and circumstances of the case. At the same time, the Appellate Court would not interfere with the finding on income merely because another assessment may also be possible, unless the assessment made by the tribunal is shown to be perverse, unsupported by evidence or contrary to the settled principles governing assessment of compensation. In the present case no such infirmity has been demonstrated. 24. For the reasons mentioned above, the objection regarding maintainability of the appeal for want of permission of under Section 170 of the MV Act is rejected. Upon examination of the appeal on merits, this Court however finds no substance in the challenge raised by the appellant/insurance company to the quantum of compensation. 25. The appeal accordingly fails. The judgment and award dated 28.02.2025 in MAC Case No. 40/2012 is hereby affirmed. The amount of Rs. 25,000/- (rupees twenty five thousand) deposited by the appellant as statutory deposit shall be refunded back to the appellant. Page No.# 14/14 26. Petition is disposed. No costs. JUDGE Comparing Assistant