GUWAHATI, India, Nov. 30 -- Gauhati High Court issued the following order on Oct. 30:
1. Heard Ms. R. D. Mazumdar, learned counsel, appearing for the appellant. Also heard Mr. K. Bhattacharjee, learned counsel appearing for the respondent No. 2 (claimant).
2] It appears from the Office Note dated 31.01.2022 in the I.A.(Civil) 1625/2018 connected with the present MACApp., that the service report in respect of respondent No. 3 (owner of the offending vehicle) and respondent No. 4 (driver) has been received back with the process service remark "notice was duly served." The said service report is available in the file and is marked as "Flag-A." It further appears that in the I.A.(Civil) No. 1625/2018, this court was further pleased to observe that notice in respect of the respondent Nos. 3 & 4 has been duly served. Despite, notice having been duly served as indicated above, today when the matter is called for hearing, there is no representation on behalf of respondent Nos. 3 & 4.
3] It is pertinent to mention that during the pendency of the case, the respondent No. 1 expired; hence, the name of respondent No. 1 was struck off from the cause title by the order of this court dated 03.08.2022. Accordingly, the matter is taken up today for final disposal.
4] The present appeal has been preferred under Section 173 of the Motor Vehicle Act, 1988, against the judgment and award dated 21.05.2012 passed in M.A.C. Case No. 84/2008 by the learned Member, Motor Accident Claims Tribunal, Nagaon, Assam, (hereinafter referred to as the "Tribunal") awarding a compensation of Rs. 2,80,540/- to the claimants for the death of the deceased, and the liability to pay such compensation has been fastened upon the appellant/insurance company.
5] Ms. R. D. Mazumdar, learned counsel, appearing for the appellant, submits that it is clearly established before the learned Tribunal that the accident occurred on 29.11.2007 at about 9.15 am, and the vehicle was insured with the appellant insurance company on the same day at about 1.32 pm. She accordingly submits that since there has been a clear finding recorded by the learned Tribunal that at the time of the accident the offending vehicle was not covered under any subsisting policy of insurance, and the policy was obtained only subsequent to the occurrence of the accident, therefore fastening the liability upon the appellant/insurance company is wholly unsustainable in law. In support of her aforesaid submission, she relies upon the decision of the coordinate bench of this court passed on 13.12.2018 in Oriental Insurance Co. Ltd v. Sahizuddin @ Sahazuddin Admed and Ors., in MACApp./190/2014.
6] Per contra, Mr. K. Bhattacharjee, learned counsel appearing for the respondent No. 2/claimant, seeks to sustain the award, submitting that since the vehicle was subsequently insured with the appellant/insurance company, the Tribunal has rightly fastened the liability upon the appellant/insurance company. He further vehemently opposed the submission made by the learned counsel and submitted that the Apex Court has clearly indicated in the case of National Insurance Company Limited v. Sunita Devi, reported in 2025 STPL 8338 SC, that the liability of an insurance company remains as long as the insurance policy is alive and is operational at the time of the accident, notwithstanding that due to the lapse of the premium there was a break in the insurance policy. He further relies upon the decision of the coordinate bench of this court in the case of United India Insurance Company Limited v. Smti Damyanti Lahkar and Anr., passed on 15.12.2022 in MACApp./110/2016, to buttress his argument that even if a driver of an offending vehicle does not possess a valid driving license, the principle of pay and recover can be ordered.
*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=T2Oj5Y97nX2tmju2FyqIUxL%2BewJppamaQL%2BqLoM8Wy%2FG8RQnaqyiypB8sXR7HdAO&caseno=MACApp./244/2013&cCode=1&cino=GAHC010251092013&state_code=6&appFlag=)
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