Gujarat High Court
National Insurance Company Ltd vs Shardaben Dineshbhai Hajariya on 2 April, 2025
NEUTRAL CITATION
C/FA/429/2015 JUDGMENT DATED: 02/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 429 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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NATIONAL INSURANCE COMPANY LTD.
Versus
SHARDABEN DINESHBHAI HAJARIYA & ORS.
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Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
RULE SERVED for the Defendant(s) No. 1,2.1,2.2,2.3,2.4,2.5
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 02/04/2025
ORAL JUDGMENT
1. The present First Appeal is filed by the appellant-Insurance Company against the judgment and award dated 22.08.2014 passed by the learned Motor Accident Claims Tribunal (Aux.), Panchmahals at Godhra in MACP No.632 of 2006, wherein the learned Tribunal has partly allowed the claim petition. Page 1 of 8 Uploaded by MANOJ KUMAR(HC01092) on Thu May 01 2025 Downloaded on : Fri May 02 21:26:42 IST 2025
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2. Heard learned advocate G.C.Mazmudar for the appellant - Insurance Compnay. Though served, none appeared for respondents.
3. Brief facts of the case are as under:-
3.1 On 31.03.2004, at about 11.00 a.m., claimant -
Shardaben Dineshbhai Hajariya had loaded food grains in Tractor bearing registration No.GJ-20B-81 and Trolley No.GJ-20T-7571 and was going to Limkheda village to sell the food grains in the said vehicle along with her daughter. The said tractor was being driven by Opponent No.1 in rash and negligent manner. When they were passing by village Dhanpur-Limkheda, opponent No.1, lost control over vehicle. Resultantly, tractor turned turtle and because of the said fact, claimant sustained serious injuries. FIR was lodged by one Pratapbhai Hamirbhai Hajariya against opponent No.1 Page 2 of 8 Uploaded by MANOJ KUMAR(HC01092) on Thu May 01 2025 Downloaded on : Fri May 02 21:26:42 IST 2025 NEUTRAL CITATION C/FA/429/2015 JUDGMENT DATED: 02/04/2025 undefined 3.2 Claimant filed a claim petition under Section 166 of the Motor Vehicles Act claiming compensation of Rs.5,00,000/- from the opponents. Notices were issued. Opponents were served except opponent No.1. Opponent No.1 was deleted as he could not be served. Opponent No.2 passed away during the pendency of claim petition, therefore, legal representatives were brought on record and joined as party Opponents. Opponent No.3 - Insurance Company appeared and filed Written Statement at Ex.12. Claimant was examined at Ex.31. Claimant produced documentary evidence such as copy of complaint, panchnama, Injury Certificate, Medical Bills, and other documents. After considering the evidence both oral as well as documentary, learned Tribunal partly allowed claim petition by directing opponents to pay compensation of Rs.4,30,000/- with 9% interest per annum from the date of petition till realization.
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NEUTRAL CITATION C/FA/429/2015 JUDGMENT DATED: 02/04/2025 undefined 3.3 Being aggrieved and dissatisfied with the impugned judgment and award, appellant - Insurance Company is before this Court.
4. Learned advocate for the appellant has submitted that the claimant was a gratuitous passenger travelling in tractor-trolley and under such circumstances Insurance Company cannot be held liable. It is further submitted that complaint was filed by one of the co-passengers of tractor- trolley, who has stated that he was carrying food-grains and that other co-passengers were also sitting in tractor- trolley. In her examination-in-chief, claimant stated that she was travelling in tractor-trolley for the purpose of unloading food-grains. In paragraph 5 of her deposition, she has stated that due to injuries sustained, she is unable to perform her tailoring work for 12 months. In view of these contradictory statements, it cannot be conclusively said that the claimant was not a gratuitous passengers. Page 4 of 8 Uploaded by MANOJ KUMAR(HC01092) on Thu May 01 2025 Downloaded on : Fri May 02 21:26:42 IST 2025
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5. It is further submitted that, during the cross- examination, claimant has admitted that there were 10-15 other persons in tractor-trolley at the time of accident and that she did not pay any fare to the driver for journey. It is therefore, submitted that the owner of vehicle has committed a breach of terms and conditions of the insurance policy. Hence, Insurance Company be absolved from liability to pay compensation. Except above, no other submissions are canvassed by learned advocate for the appellant.
6. I have considered the submissions canvassed by learned advocate for the appellant perused the materials available on record. Complaint was filed by one Pratapbhai, who stated that he was travelling in tractor - trolley along with food-grains and that other passengers were also sitting in the vehicle. Due to mechanical failure, driver lost control over tractor-trolley, which overturned. Page 5 of 8 Uploaded by MANOJ KUMAR(HC01092) on Thu May 01 2025 Downloaded on : Fri May 02 21:26:42 IST 2025
NEUTRAL CITATION C/FA/429/2015 JUDGMENT DATED: 02/04/2025 undefined Complaint indicates that claimant-Shardaben was one of the passengers, who sustained injury in the accident.
The contention which has been raised by the learned advocate for the appellant that since there is a contradiction in the oral deposition of claimant and the facts stated in the FIR, it is established that claimant was a gratuitous passenger. However, learned Tribunal has observed that the driver of offending vehicle was not examined during the proceedings. The driver of offending vehicle was the best witness to clarify whether the claimant had paid any fare for journey or not?. The burden of establishing that the claimant was a gratuitous passenger lies with the Insurance Company. The failure on the part of Insurance Company to discharge the burden will not disowned the claimants from entitlement of compensation.
7. The principle of pay and recovery under the Page 6 of 8 Uploaded by MANOJ KUMAR(HC01092) on Thu May 01 2025 Downloaded on : Fri May 02 21:26:42 IST 2025 NEUTRAL CITATION C/FA/429/2015 JUDGMENT DATED: 02/04/2025 undefined Motor Vehicles Act, 1988 mandates that an insurance company must first pay compensation to third party claimant and subsequently recover the amount from the owner of the offending vehicle even in cases where there are violation of policy conditions. This principle is designed to protect the rights of third party victims in motor vehicle accident. The principle of pay and recovery serves as a protective measure for third party claimants in motor vehicle accidents ensuring they receive compensation promptly while allowing the insurers to recover the amount from the vehicle owners in cases of policy violation.
8. Considering the aforesaid discussions, appellant shall first pay compensation to the claimant and thereafter can recover the amount from the owner and driver of tractor-trolley, if so desirous. Resultantly, First Appeal is partly allowed.
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11. Record and proceedings, if any, received, be sent back to the concerned Court/Tribunal.
(D. M. DESAI,J) MANOJ Page 8 of 8 Uploaded by MANOJ KUMAR(HC01092) on Thu May 01 2025 Downloaded on : Fri May 02 21:26:42 IST 2025