The Oriental Insurance Company Ltd vs Mst Rukiya Khatun And 6 Ors

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GAHC010029422017

2026:GAU-AS:16104
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : MACApp./325/2017
THE ORIENTAL INSURANCE COMPANY LTD
A CENTRAL GOVT. UNDERTAKING HAVING ITS REGIONAL OFFICE AT
GUWAHATI, G.S. ROAD, ULUBARI, GUWAHATI REPRESENTED BY THE
REGIONAL MANAGER, GAUHATI REGIONAL OFFICE, ULUBARI,
GUWAHATI-781007
VERSUS
MST RUKIYA KHATUN and 6 ORS
W/O LATE RAFIKUL ISLAM
BEFORE
HON’BLE MR. JUSTICE DEVASHIS BARUAH

For the Appellant(s) : Ms. R. D. Mozumdar, Advocate

For the Respondent(s) : Mr. J. Mollah, Advocate
: Mr. R. Ali, Advocate

· Date on which Judgment was reserved : NA
· Date of Pronouncement of Judgment : 03.11.2026
· Whether the pronouncement is of
the Operative Part of the Judgment : Yes

· Whether the full Judgment has been
Pronounced : NA

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JUDGMENT AND ORDER (ORAL)

Heard Ms. R. D. Mozumdar, the learned counsel appearing on
behalf of the Appellant and Mr. J. Mollah, the learned counsel
appearing on behalf of the Respondent Nos. 1 to 5. I have also
heard Mr. R. Ali, the learned counsel appearing on behalf of the
Respondent Nos. 6 & 7.
2. This is an Appeal directed against the judgment and award
dated 20.02.2017 passed in MAC Case No. 389/2012 whereby the
learned Motor Accident Claims Tribunal No.2, Kamrup (Metro) at
Guwahati (hereinafter referred to as “the learned Tribunal”) held
that the owner of the vehicle was liable to pay an amount of
Rs.10,66,000/- along with interest at the rate of 6% per annum
from the date of filing of the application under Section 166 of the
Motor Vehicles Act, 1988 (for short, the “Act of 1988”) till the date
of payment and further, the Appellant would be entitled to recover
the entire awarded compensation amount from the owner in due
course.
3. The Appellant herein who is the Insurance Company, is
aggrieved by the directions passed in the Award dated 20.02.2017
(hereinafter referred to as the “impugned Award”) on the ground
that the learned Tribunal ought not to have directed the Appellant

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Insurance Company to make payment after having come to a
finding that the vehicle was driven by an unauthorized driver. It
was also submitted that the victim was a gratuitous passenger. It is
in that premise, the present Appeal was filed on 05.05.2017.
4. For the purpose of deciding the present Appeal, this Court
finds it relevant to take note of the brief facts.
5. On 20.11.2011, at around 7:20 AM, one Rafiqul Islam (since
deceased) was carrying goods by the vehicle bearing Registration
No.AS-01-DD-1590 (Bolero Lamper) as owner of the goods from
Mukalmua towards Guwahati and on the way, when the same
vehicle reached at Agyathuri, the vehicle met with an accident as a
result of which Late Rafiqul Islam sustained grievous injuries.
Subsequent thereto, he was rushed to the GMCH, Guwahati, where
he succumbed to his injuries on the same day.
6. An FIR was lodged before the Hajo Police Station, which was
registered as Hajo P.S. Case No. 330/2011 under Sections 279,
337, 338 and 304(A) of the Indian Penal Code. Subsequent
thereto, the claim petition was filed by the Respondent Nos. 1 to 5
as claimants before the learned Tribunal which was registered and
numbered as MAC Case No. 389/2012.

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7. The Respondent Nos. 6 and 7 herein who were the Opposite
Party Nos. 1 and 2 in the claim proceedings did not contest.
However, the Appellant who was the Opposite Party No.3 before
the learned Tribunal submitted a written statement. On the basis of
such pleadings, two issues were framed, which were:
“ 1. Whether the victim Late Rofikul Islam died in the alleged road
accident dated 20-11-2011 involving vehicle No.AS-01-DD-1590
(Bolero Lamper) and whether the said accident took place due to
the rash and negligent driving of the driver of the offending
vehicle?
2. Whether the claimant(s) are entitled to get any compensation and
if yes, to what extent and by whom amongst the opposite
parties, the said compensation amount will be payable?”
8. On behalf of the claimants, two witnesses were examined and
various documents were exhibited. On behalf of the Appellant
Insurance Company, two witnesses were examined.
9. The learned Tribunal vide the Award dated 20.02.2017
allowed the claim proceedings by determining the just
compensation. In doing so, the learned Tribunal while deciding the
Issue No.1, came to a categorical finding that the accident
occurred due to the rash and negligent driving of the driver of the
offending Bolero Lamper vehicle.

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10. Insofar as the Issue No.2, which related to the just and proper
compensation, the learned Tribunal by applying the ratio of the
judgment of the Supreme Court in the case of Sarla Verma Vs.
Delhi Transport Corporation , reported in (2009) 6 SCC 121 along
Rajesh and
with the judgment of the Supreme Court in the case of
Others Vs. Rajbir Singh and Others reported in (2013) 9 SCC 54

determined that the just compensation would be Rs.10,66,000/-.
The learned Tribunal also went into the question of whom to be
saddled the liability and after examining the insurance policy, came
to an opinion that the insurance policy was valid at the time when
the accident occurred but also opined that the driving license was
fake and the owner of the vehicle had allowed an unauthorized
driver to drive the vehicle.
11. The learned Tribunal, further taking into account the judgment
in the case of National Insurance Co. Limited Vs. Swaran Singh
reported in (2004) 3 SCC 297 , came to a categorical opinion that
this is a fit case wherein directions can be issued to the Appellant
Insurance Company to pay the compensation and thereupon to
recover from the owner.
12. In the backdrop of the above, this Court heard the learned
counsels appearing on behalf of the parties.

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13. The pivotal question which arises in the instant proceedings is
as to whether the impugned Award as it stands is required to be
interfered with by this Court in exercise of its appellate jurisdiction.
The challenge so made is solely on the question that the learned
Tribunal ought not to have directed the Appellant to make payment
of the compensation and then to recover, inasmuch as, it is the
case of the Appellant that after the learned Tribunal had found that
the vehicle was driven by a person who was unauthorized to drive,
the liability should have been saddled only upon the owner of the
vehicle without the involvement of the Appellant Insurance
Company.
14. Ms. R. D. Mozumdar, the learned counsel appearing on behalf
of the Appellant further submitted that the learned Tribunal failed
to issue appropriate directions as to how after making payment by
the Appellant Insurance Company, the recovery would be made,
inasmuch as the directions should have been in tune with the
observations of the Supreme Court in the case of Oriental
Insurance Company Limited Vs. Nanjappan and Others reported in
(2004) 13 SCC 224 . Specific reference was made to paragraph No.8
of the said judgment.
15. Mr. J. Mollah, the learned counsel appearing on behalf of the

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claimants submitted drawing reference to a judgment of the
Supreme Court in the case of Hind Samachar Limited (Delhi Unit)

Vs. National Insurance Company Limited and Others reported in
(2026) 2 SCC 773 , that merely because a driving licence is fake,
the Insurance Company is not absolved of its liability to make
payment, inasmuch as the Insurance Company have an additional
responsibility to discharge that the owner also had due knowledge
that the vehicle in question was driven by a person using a fake
driving license.
16. Mr. R. Ali, the learned counsel who appears on behalf of the
Respondent Nos. 6 and 7 submitted that the instant Appeal so filed
has no legs to stand in view of the judgment of the Supreme Court
in the case of Hind Samachar Limited (supra) as well as the recent
judgment dated 11.02.2026 of the Supreme Court in the case of
Kaminiben and Others Vs. The Oriental Insurance Company Limited
and Others , wherein the Supreme Court categorically observed that
when the victim was a gratuitous passenger, directions can be
issued against the insurer of the offending vehicle to first satisfy
the awarded sum and then to recover the same from the insured in
the same proceedings.
17. This Court has given an anxious consideration to the

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respective submissions.
18. The owner of the vehicle have not put to challenge the Award
dated 20.02.2017. In fact, the owner of the vehicle, who is the
Respondent No.6, even did not participate in the said proceedings
by filing the written statement. The findings of fact insofar as the
Issue No.1 calls for no interference as there appears to be in
consonance with the evidence so led. Insofar as the discussion and
the determination of the just compensation, it is the opinion of this
Court that the same is in consonance with the settled principles of
law holding the field at the time when the Judgment and Award
was pronounced.
19. The only question which arises in the instant Appeal is as to
whether the directions so passed by the learned Tribunal upon the
Appellant Insurance Company to make payment of the
compensation and recover the same from the Respondent No.6
herein (Opposite Party No.1 in the claim proceedings) calls for no
interference.
20. This Court has given an anxious consideration and have also
perused the settled principles of law including the judgment of the

Supreme Court in the case of Swaran Singh (supra) as well as

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Nanjappan (supra) wherein the Supreme Court categorically held
that the principle of pay and recover can be adopted for satisfying
the awarded compensation by issuing directions upon the
insurance company to make the payment and thereafter recover
the same from the owner of the vehicle.
21. This Court has also taken note of the judgment of the
Hind Samachar Limited (supra)
Supreme Court in the case of but in
the present facts, the said judgment would not be applicable
considering the fact that there is a clear finding of fact at
paragraph No.31 of the impugned judgment that the owner of the
vehicle had allowed an unauthorized driver to drive the vehicle and
without that finding of fact being put to challenge, the said
judgment in the case of Hind Samachar Limited (supra) would not
apply.
22. The recent judgment of the Supreme Court in the case of
Kaminiben (supra) also adopts the pay and recover principle by
observing inter alia that even in the case of gratuitous passengers,
directions can be issued upon the insurance company to make
payment for satisfying the award and thereupon to make the
recovery.

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23. Considering the above, this Court does not find any merit in
the instant Appeal challenging the directions so passed by the
learned Tribunal in the impugned Award dated 20.02.2017.
Accordingly, the Appeal stands dismissed.
24. Six weeks’ time is granted to the Appellant Insurance
Company to deposit the compensation as awarded by the learned
Tribunal along with interest at the rate of 6% as awarded by the
learned Tribunal.
25. It has been duly submitted by Ms. R. D. Mozumdar, the
learned counsel appearing on behalf of the Appellant that 50% of
the compensation was deposited before the Registry pursuant to
the order dated 17.07.2018.
26. Mr. J. Mollah, the learned counsel appearing on behalf of the
claimants submitted that an application was filed for withdrawal of
the said amount however the same was objected to and as such,
the application still remains pending. Under such circumstances,
this Court directs that upon an application being filed by the
Appellant before the Registry along with providing details of the
deposit of the entire compensation along with interest before the
Tribunal as directed hereinabove, the amount so deposited by the

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Appellant Insurance Company before the Registry in pursuance to
the order dated 17.07.2018 be refunded to the Appellant.
27. In addition to that, upon production of an order from the
learned Tribunal that the amount so directed hereinabove to be
deposited along with interest have been deposited before the
learned Tribunal, the Appellant Insurance Company be also
refunded the statutory deposit of Rs.25,000/-.
28. This Court, before parting with the records, however, finds it
also relevant to observe that while disbursing the amount by the
learned Tribunal to the claimants, the learned Tribunal shall bear in
mind the observations of the Supreme Court in the case of
Nanjappan (supra) , more particularly at Paragraph No.8, which is
reproduced herein under.
“ 8. Therefore, while setting aside the judgment of the High Court we
direct in terms of what has been stated in Baljit Kaur case that the insurer
shall pay the quantum of compensation fixed by the Tribunal, about which
there was no dispute raised, to the respondent claimants within three
months from today. For the purpose of recovering the same from the
insured, the insurer shall not be required to file a suit. It may initiate a
proceeding before the executing court concerned as if the dispute between
the insurer and the owner was the subject-matter of determination before
the Tribunal and the issue is decided against the owner and in favour of the
insurer. Before release of the amount to the claimants, owner of the vehicle

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shall be issued a notice and he shall be required to furnish security for the
entire amount which the insurer will pay to the claimants. The offending
vehicle shall be attached, as a part of the security. If necessity arises the
executing court shall take assistance of the Regional Transport Authority
concerned. The executing court shall pass appropriate orders in accordance
with law as to the manner in which the insured, owner of the vehicle shall
make payment to the insurer. In case there is any default it shall be open to
the executing court to direct realization by disposal of the securities to be
furnished or from any other property or properties of the owner of the
vehicle, the insured. The appeal is disposed of in the aforesaid terms, with
no order as to costs.”
29. The instant Appeal is dismissed with a cost quantified at
Rs.15,000/- upon the Appellant Insurance Company which shall be
also deposited before the learned Tribunal along with the
compensation so directed here hereinabove.
30. Return the TCR.
Digitally signed by Bijoy
Saha
Date: 2026.11.05 19:38:00
+05'30'
JUDGE
Bijoy Saha
Comparing Assistant