The Oriental Insurance Company Ltd vs Mofida Ahmed @ Minu Ahmed And 2 Ors

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GAHC010002902015

2026:GAU-AS:16324
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp./976/2018
THE ORIENTAL INSURANCE COMPANY LTD
(A CENTRAL GOVT. UNDERTAKING) HAVING ITS REGIONAL OFFICE AT
GUWAHATI, G.S. ROAD, ULUBARI, GUWAHATI 781007 REPRESENTED BY
THE REGIONAL MANAGER, GAUHATI REGIONAL OFFICE, ULUBARI,
GUWAHATI 781005
VERSUS
MOFIDA AHMED @ MINU AHMED and 2 ORS
W/O LATE ZAHIDUL ISLAM, SANTINAGAR OF GOALPARA TOWN, WARD
NO. 17, P.O. BALADMARI, P.S. and DIST. GOALPARA ASSAM
2:JADAV CH. ROY
S/O LATE KANAI RAY
VILL. CHAKAPARA
P.S. and DIST. BONGAIGAON ASSAM
3:SAYED ALI
S/O MAHAR ALI
VILL. CHOTOPARA
P.O. and P.S. JOGIGHOPA
DIST. BONGAIGAON
ASSAM
Advocate for the Petitioner : MS. R D MOZUMDAR, MRS. B BORAH
Linked Case : MACApp./104/2015
THE ORIENTAL INSURANCE COMPANY LTD
A CENTRAL GOVT. UNDERTAKING HAVING ITS REGIONAL OFFICE AT
GUWAHATI
G.S. ROAD
ULUBARI

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GUWAHATI 781007 REPRESENTED BY THE REGIONAL MANAGER
GAUHATI REGIONAL OFFICE
ULUBARI
GUWAHATI 781005
VERSUS
KALYANI DAS and 2 ORS
W/O LATE JYOTISH DAS
BAPUJI NAGAR OF GOALPARA TOWN
WARD NO. 17
P.O. BALADMARI
P.S. and DIST. GOALPARA ASSAM
2:JADAV CH. ROY
S/O LATE KANAI RAY
VILL. CHAKAPARA
P.S. and DIST. BONGAIGAON ASSAM DRIVER
------------

BEFORE
HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY
JUDGMENT
For the appellants : Ms. R.D. Mozumdar, Adv

For the Respondents : Mr. H Das, Adv

Date on which judgment was reserved : 29.09.2026

Date of pronouncement of judgment : 06.11.2026

Whether the pronouncement is of the
operative part of the judgment? : N.A

Whether the judgment has been pronounced? : Yes

UDGMENT RDER
J & O (CAV)
1. These two appeals are taken up together, as
both challenge the common judgment and award dated

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21.11.2014, passed in MAC Case No. 51/2011 and MAC Case
No. 52/2011. Both the MAC cases are offshoots of a motor
vehicular accident, wherein the husbands of both the claimants
in the respective cases died.
2. The appellant's principal challenge is to the
finding of negligence and liability. It is contended that the
deceased themselves were negligent, that they violated traffic
rules, that the accident occurred due to their own negligence,
and, alternatively, that there was contributory negligence on
the part of the deceased to the extent of 50 percent. The
appellant has also questioned the quantum of compensation
awarded by the learned trial court.
3. The facts giving rise to the claim are not in
serious dispute.
4. On 12.04.2010, at about 6 p.m., Jahedul Islam,
who was working as Forester-I in the Forest Department, and
Jyotish Das, Forester-II, were on duty at Budhipara/Agiya Beat
Office. At that time, they noticed the offending truck bearing
registration number AS-25/6049 coming from Bolbola side,
loaded with sand.
5. Suspecting the vehicle was carrying forest
produce, they signaled the vehicle to stop. The driver did not
stop the vehicle, and when both the deceased attempted to
pursue and stop the truck, the truck knocked them down.

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Both of them sustained injuries and died.
6. An FIR was lodged by Dalim Das, Range Forest
Officer, Goalpara Range, which was registered as Goalpara PS
case No.232/2010, under section 304/427 IPC, and upon
investigation, a charge-sheet was submitted against the driver
of the offending vehicle for rash and negligent driving, though
subsequently, the driver was acquitted for want of evidence.
7. Sayed Ali owned the offending vehicle, which
was insured with the Insurance Company under Policy
No.322300/31/2010/4484, valid on the date of the accident.
The deceased, Jeherul Islam, was stated to be aged about 47
years and was serving in the Forest Department. The
claimants are the widow Mofida Ahmed @ Minu Ahmed, his
son Md. Rohan Afridi, his daughter Rosleen Islam, and his
mother Jahanara Begum.
8. The other claimants are Kalyani Das, wife of the
deceased Jyotish Das, and the deceased's sons, Nilam Kr. Das
and Bikram Das and mother Dhaneswari Das. The victim was
serving in the Forest Department and his age was 55 years.
9. The Insurance Company, in its written
statement, denied liability and, inter alia, pleaded that the
deceased violated traffic rules and that the accident occurred
due to their own negligence. It was further pleaded that there
was suppression of material facts and that, in any event, the

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deceased had contributed to the accident.
10. In the alternative, the appellant pleaded
contributory negligence to the extent of 50%. These pleas
were specifically taken as grounds to avoid or reduce the
insurer's liability.
However, the Insurance Company led no evidence. Therefore,
the difficulty in accepting the aforesaid defense is that the
allegations made in the written statements were not supported
by any evidence.
11. There is no evidence on record establishing that
the deceased had violated any particular traffic rule, that they
had acted negligently in a manner which contributed to the
occurrence, or that their negligence was either the sole cause
or a contributing cause of the accident. The plea of 50%
contributory negligence in particular remains a bare assertion
in the written statement.
12. It is true that the claimants were not eyewitnesses
to the actual impact. PW-2 Binoy Kr. Nath, who claimed to
have witnessed the occurrence, had admitted in his cross-
examination that he was at a distance when he saw the Forest
Officer signaling the vehicle. The learned Tribunal therefore
did not place implicit reliance upon his evidence.
13. Though such evidence may not conclusively
establish the manner of impact, it also does not establish the

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affirmative defense of contributory negligence pleaded by the
Insurance Company.
14. The burden to establish specific plea of
contributory negligence lies upon the party asserting it. A plea
in the written statement is not evidence.
In the present case, apart from making the allegation, the
appellant has not brought on record any material from which it
can be concluded that the deceased had acted negligently or
that their conduct materially contributed to the accident.
15. A reference to the police case, violation of traffic
rules, or the observation made in the criminal case against the
driver, or his acquittal, cannot, without evidence proved before
the Tribunal, be a sufficient ground to apportion liability or
conclude that the deceased contributed to the accident.
16. The materials on record, therefore, do not justify
interference with the finding of the learned Tribunal fastening
liability upon the offending vehicle, consequently upon the
appellant insurance Company.
17. Accordingly, the challenge to the finding of
negligence and liability fails. The appeals are dismissed.
18. The appellant Insurance Company shall deposit
the compensation, after adjusting the amount already
deposited or paid pursuant to the impugned order, together
with interest, before the learned Tribunal in terms of the

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impugned judgment.
19. The direction of the learned Tribunal regarding
disbursement and protection of compensation shall insofar
remain operative subject to, however, the change in
circumstance of attainment of majority by the minors in the
meantime or death of any of the claimants.
20. Registry to return the statutory deposit to the
appellants. The TCR be returned back forthwith.

JUDGE
Comparing Assistant