Arup Kumar Baruah vs Lakhi Doy Mili

GAHC010045682025




2026:GAU-AS:12737
IN THE GAUHATI HIGH COURT
HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)

MACApp./346/2025

1.
Arup Kumar Baruah
S/O. Lt. Karmadhar Baruah,
R/O. Dinjoy Satra, Chariali,
P/O Dinjoy, P/S Chabua,
District Dibrugarh, Assam, Pin-786184.

…..Appellant
-Versus-

1.
Lakhi Doy Mili
W/O Lt. Krishna Mili
Resident of Laika Phasida Gaon
PO Rangagora PS and District Tinsukia Assam

2.
Dhanbir Mili
S/O. Lt. Krishna Mili
Resident of Laika Phasida Gaon
PO Rangagora PS and District Tinsukia Assam

3.
Gitika Mili
D/O. Lt. Krishna Mili
Resident of Laika Phasida Gaon
PO Rangagora PS and District Tinsukia Assam

4. HDFC ERGO General Insurance Co. Ltd.
th
6 Floor Adityam Building Lachit Nagar G
MACApp./346/2025 Page 1

.S. Road P.O. Ulubari
District Kamrup Metro
Guwahati Assam
……Respondents

For Appellant Mr. A. K. Gupta, Advocate
:
For Respondents Mr. T. Kalita, Advocate
:

Date of Hearing 17.07.2026
:
02.09.2026
Date of Judgment :

HON’BLE MR. JUSTICE MRIDUL KUMAR KALITA
JUDGMENT AND ORDER
1. Heard Mr. A. K. Gupta, the learned counsel for the appellant. Also
heard Mr. T. Kalita, the learned counsel for the respondent/claimant.
2. This appeal under Section 173 of the Motor Vehicles Act, 1988 has
been filed by the appellant/owner of the offending vehicle, impugning
the judgment and award dated 21.08.2024, passed by the learned
Additional Member, Motor Accident Claims Tribunal No. 2, Tinsukia, in
MAC Case No. 20/2023, whereby the Respondent No. 4-Insurance
Company, namely, HDFC Argo General Insurance Company Limited,
was directed to pay a compensation amount of Rs. 17,71,073/- only
with an interest at the rate of 8% to the respondent/claimant and
thereafter, were given liberty to recover the said amount from the
owner/driver of the offending vehicle, i.e., the present appellant. The
present appellant is aggrieved with the judgment to the extent that the
Insurance Company was directed to recover the compensation payable
by it to the claimant from the present appellant.
MACApp./346/2025 Page 2

3. The facts relevant for consideration of the instant appeal, in brief, are

that, on 16.01.2023, at about 3.50 pm, one swift car bearing
Registration No. AS-23-Z-6200, coming from the Tinsukia side towards
Duliajan, knocked one auto rickshaw bearing Registration No. AS-23-
BC-9901, which was parked on the extreme left side of the road at
Nalanihola Panchali. Due to the said accident, the auto rickshaw driver,
namely, Krishna Mili, sustained grievous injuries on his person, and he
died on the spot. After the said accident, one police case namely,
Tinsukia P. S. Case No. 28/2023 was also registered under Sections
279/338/304A/427 of the Indian Penal Code against the driver of the
offending vehicle, and later on, charge sheet was also submitted in the
said case.
4. After the aforesaid accident, the wife and children of the deceased
approached the Motor Accident Claims Tribunal, (Additional Member),
Tinsukia, by filing an application under Section 166 of the Motor
Vehicle Act, 1988, seeking compensation on account of death of their
husband/father in the aforesaid motor vehicular accident. The said
claim case was registered as MAC Case No.20/2023, before the
Additional Member, Motor Accident Claims Tribunal, Tinsukia. The
inquiry proceeded ex-parte against the present appellant, however, the
Insurance Company contested the claim by filing written statement in
the said inquiry.
5. Upon pleadings of the parties, the Motor Accident Claims Tribunal
formulated the following issues:
MACApp./346/2025 Page 3

i. Whether the claim petition filed by the Claimants is
maintainable?
ii. Whether Krishna Milli died in a motor accident that took place
on 16 November 2023 at about 3:30 PM at Nalini Hola
Panchali involving swift vehicle bearing registration number AS
06 Z 6200 ?
iii. Whether the accident took place due to rash and negligent
driving of the Maruti Swift vehicle bearing registration number
AS 06 Z 6200 ?
iv. Whether the claimants are entitled to get compensation, if so,
to what extent and from whom?
6. In support of their claim, the claimant No. 1 examined herself as CW-1
and exhibited certain documents, which were exhibited as Exhibit 1 to
Exhibit 9. The claimant No. 2 was also examined as CW-2 as a witness
for the claimants’ side. One Krishna Preme was also examined as CW-3
as a witness for the claimant side as well as one Labanya Nagate was
examined as CW-3 for the claimant side. The Insurance Company did
not adduce any evidence in their defence. Ultimately, by the
judgement and award which has been impugned in this appeal, the
claim petition was allowed and the compensation was awarded to the
claimants in the manner as already been described in the foregoing
paragraph of this judgment.
7. Mr. A. K. Gupta, the learned counsel for the appellant, has submitted
that the present appellant is the owner and the driver of the offending
vehicle. He submits that after filing of the MAC Case No.20/2023,
before the Additional Member, Motor Accident Claims Tribunal, No. 2,
Tinsukia when the matter was fixed before the said Tribunal on
MACApp./346/2025 Page 4

19.05.2023, both the claimants as well as the present appellant were
represented by their respective counsel. However, on that day, since
the Form 54 was not filed by the claimant, the said MAC Case was kept
in abeyance, till arrival of Form 54 in that case. He submits that
thereafter, though the matter was again put up before the Motor
Accident Claims Tribunal on 28.06.2023 on the basis of an application
filed by the claimants before the Tribunal bringing on record the Form
54, however, since, this date was not known to the present appellant
and since, no notice was issued to the appellant after keeping the MAC
Case No. 20/2023 in abeyance on 19.05.2023, the appellant being
unaware about the putting up of MAC case before the Tribunal on
28.06.2023, he could not appear before the Tribunal on that date. He
submits that thereafter, on 01.09.2023, though, the Tribunal in its
order passed on the same date mentioned that notice issued to
opposite party No.1, (i.e., the present appellant) have returned after
service, however, it was the original notice issued in the aforesaid case
in pursuant to which the appellant had already appeared before the
Tribunal on 19.05.2023. He submits that after keeping the aforesaid
case in abeyance by the Tribunal, no fresh notice was issued to the
present appellant in the aforesaid case and therefore, he was unaware
about fixing of the case ex-parte against him.
8. The learned counsel for the appellant further submits that the Motor
Accident Claims Tribunal has also erred in coming to the conclusion
that there was a breach of policy condition on the part of the present
appellant, as he was found to drive the offending vehicle on the date
of alleged accident under the influence of liquor. He submits that no
MACApp./346/2025 Page 5

evidence is there on record to indicate that the appellant was under
the influence of liquor. He submits that the only material on record,
which indicates that the appellant might be under the influence of
liquor is the written argument submitted by the counsel of the
Insurance Company before the Tribunal as well as the FIR, which was
exhibited by the claimant side as Exhibit-2.
9. He further submits that in the Exhibit-2, the informant has alleged that
it has come to know that the appellant was driving the offending
vehicle under the influence of liquor, which he submits that is in the
nature of hearsay evidence. He further submits that the informant of
the FIR, which has been exhibited as Exhibit-2, namely, Shri Brojen
Borgohain was not examined either by the claimant or by the
Insurance Company to adduce evidence as regards allegations of the
present appellant driving the offending vehicle under the influence of
liquor.
10. He further submits that no such plea was taken by the Insurance
Company in the written statement filed by it in the MAC Case No.
20/2023. As such, he submits that the Tribunal has arrived at a finding
regarding breach of policy condition without there being any
admissible evidence on record. As such, he submits that the impugned
judgment and award is liable to be set aside to the extent by which it
directs the Insurance Company to recover the compensation payable
by it from the present appellant.
11. He further submits that though the Insurance Company had filed an
application before the Motor Accident Claims Tribunal on 02.07.2024
MACApp./346/2025 Page 6

praying for examination of the Investigating Officer of the G.R. Case
No. 56/2023 as DW and also to issue a direction to the Investigating
Officer to produce the toxicological report of the driver of the offending
vehicle before the Tribunal was rejected by the Tribunal by its order
dated 02.07.2024 and the said order of rejection was not put to
challenge by the Insurance Company. Hence, he submits that there is
no evidence on record on the basis of which the Tribunal could have
arrived at a finding that the present appellant was under the influence
of liquor when the alleged accident occurred and, as such, there was a
breach of the policy condition.
12. On the other hand, Mr. T. Kalita, the learned counsel for the Insurance
Company submits that the Motor Accident Claims Tribunal has rightly
arrived at the conclusion that there was a breach of policy condition by
the owner of the offending vehicle in as much as after perusing the
materials on record which includes the FR (Forwarding Report) of the
present appellant as an accused in the criminal case, which was filed
after the accident as well as extract of the Duliajan G.D. Entry No. 250
and 254 dated 16.11.2023, it came to the conclusion that the present
appellant was driving the vehicle under the influence of alcohol on the
date of alleged incident.
13. He submits that the fact as to whether the petitioner was under the
influence of liquor or not is a special knowledge, which could be
exclusively known to the present appellant only and therefore, he
ought to have adduced evidence to counter this allegation, which was
leveled in the FIR in the connected criminal case. He also submits that
during the inquiry which proceeded ex-parte against the present
MACApp./346/2025 Page 7

appellant, he could have filed an application for setting aside ex-parte
order and later on, he could have also filed an application for setting
aside the ex-parte decree, but same was not done by the present
appellant. Hence, he submits that now the present appellant cannot
take this plea in this appeal.
14. He also submits that the allegations against the present appellant that
he was under the influence of the liquor could have been denied by
him by filing written statement. However, he failed to do so as the
inquiry proceeded ex-parte against him. He also submits that as the
fact as to whether he had consumed liquor on the date of
alleged incident or not was known exclusively to the present petitioner.
It was he who had the burden of proving the said fact under Section
106 of the Indian Evidence Act.
15. The learned counsel for the respondent/Insurance Company
also submits that in view of the provisions contained in Section 150 (2)
(a) (ii) of the Motor Vehicles Act, 1988, there was a breach of policy
condition in as much as he was driving the offending vehicle under the
influence of alcohol. Hence, he submits that the impugned judgment
and order needs no interference by this court and the appeal should
be dismissed.
16. 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 learned counsel for both
sides in support of their respective submissions.
MACApp./346/2025 Page 8

17. The point to be determined in this appeal is as to whether the Motor

Accident Claims Tribunal was correct in holding that there was a
breach of policy condition on account of the driver of the offending
vehicle driving the vehicle on the date of accident under the influence
of liquor, and thereby holding that the insurance company may recover
the compensation paid by it from the owner of the offending vehicle.
18. Before we discuss the main question involved in this appeal, let us also
discuss as to whether the Tribunal was correct in proceeding ex parte
against the owner of the offending vehicle by its order dated
01.09.2023. It appears from record that on 19.05.2023, the owner of
the offending vehicle was represented before the Tribunal. However,
on that day, the MAC Case No. 20/2023 was directed to be kept in
abeyance till the Form No. 54 is received by the Tribunal. Thereafter, it
appears that on 28.06.2023, the aforesaid MAC case was put up before
the Tribunal on strength of an application filed by the claimant side,
wherein it was intimated to the Tribunal that the Form No. 54 has been
received. Since the aforesaid MAC case was not fixed on 28.06.2023, it
was not expected that the owner of the offending vehicle to remain
present on that date or on the next date unless he is notified about the
putting up of the records on an off-date and thereafter notified about
the next date. It also appears that the Tribunal also erred in recording
in its order dated 01.09.2023 that though the notice issued to Opposite
Party No. 1, i.e., the present appellant, have returned after service,
hence, in his absence, the enquiry shall proceed ex parte. However, it
failed to take into consideration the fact that in between the issuance
of notice, the Opposite Party No. 1, i.e, the present appellant, had
MACApp./346/2025 Page 9

appeared before the Tribunal on 19.05.2023, and thereafter, it is by
the order of the Tribunal itself, the MAC Case No. 20/2023 was kept in
abeyance and the owner of the offending vehicle was not notified
about putting up of the case again. The Tribunal ought to have notified
the owner of the offending vehicle after receipt of the Form 54 and
after the case was taken up for hearing again. Be that as it may, since
the owner of the offending vehicle has not prayed for setting aside the
ex parte order or setting aside of the ex parte decree, we are not, in
this appeal, going into the said question any further.
19. Let us now discuss as to whether there was any cogent material on
record on the basis of which the Tribunal could have arrived at a
finding that the owner of the offending vehicle was driving the said
vehicle on the date of the accident under the influence of liquor.
20. On perusal of the records, it appears that the only material wherein an
indication is given that the owner of the offending vehicle might be
under influence of liquor on the date of accident is the FIR lodged by
one Brajen Borgohain and which was exhibited as Exhibit-2 by the
claimant. In the said FIR, the first informant, namely Sri Brajen
Borgohain, had stated that he had come to know that the driver of the
offending vehicle was driving the same under the influence of liquor. It
is not disclosed in the FIR as to from where he came to know the said
fact. Neither the insurance company had examined the first informant,
Sri Brajen Borgohain, to verify this fact, nor any other evidence was
adduced by the Insurance Company to produce any material from
which the Tribunal could have arrived at a finding that the
owner/driver of the offending vehicle was driving the same on the date
MACApp./346/2025 Page 10

of accident under the influence of liquor, so as to come to a conclusion
that there was a breach of policy condition by the owner of the
offending vehicle.
21. It is pertinent to note herein that the facts alleged in an FIR is
normally in form of an accusation and same cannot be regarded as an
established fact. However, after investigation, when some materials are
found in support of the accusation made in the FIR and charge-sheet
is filed, and in the charge-sheet the facts stated in the FIR are
reiterated, then there may be some justification to rely on such
allegations which were made in the FIR. However, in the instant case,
the Insurance Company has not produced anything to show that
during investigation it was established that the owner/driver of the
offending vehicle was under the influence of liquor on the date of the
accident while driving the offending vehicle.
22. It is also pertinent to note that though the Insurance Company made
an attempt during the enquiry before the Tribunal in MAC Case No.
20/2023 to get the toxicological report of the driver of the offending
vehicle produced before the Tribunal, however, such a prayer was
rejected by the Tribunal by its order dated 02.07.2024, and the said
order of rejection was not challenged before any higher judicial
authority by the insurance company. As such, the insurance company
has failed to produce any reliable material before the Tribunal during
the enquiry in MAC Case No. 20/2023 on the basis of which the
Tribunal could have arrived at a finding that the owner/driver of the
offending vehicle was under the influence of liquor on the date of
accident while driving the offending vehicle. As such, the said finding is
MACApp./346/2025 Page 11

arrived at on the basis of unreliable evidence, which is in the nature of
hearsay evidence. Hence, the said finding cannot be sustained in law
and same is liable to be set aside.
23. In view of the discussions made and reasons stated in the foregoing
paragraphs, the finding arrived at by the Motor Accident Claims
Tribunal in the impugned judgment to the extent that there was a
breach of policy condition by the owner of the offending vehicle
inasmuch as the said vehicle was driven by the driver of the offending
vehicle under the influence of liquor is held to be without any cogent
basis and as such, same is hereby set aside. Consequently, the
observations made by the Tribunal in the impugned judgment that the
Insurance Company is entitled to recover the compensation payable to
the claimant from the owner of the offending vehicle is also set aside.
24. In view of the above discussion, it is hereby held that it is the
respondent No. 4 Insurance Company, which shall have to bear the
entire liability of paying compensation assessed by the Tribunal in the
impugned judgment.
25. This appeal is, accordingly, allowed.
26. Send back the records of MAC Case No. 20/2023 along with a copy of
this judgment to the concerned Tribunal.

JUDGE
Comparing Assistant

Amita Sharma
2026.09.03 14:33:21 +05'30'
MACApp./346/2025 Page 12