Gujarat High Court
Girdhari Kodandas Gopalani vs New India Assurance Co. Ltd on 2 December, 2025
NEUTRAL CITATION
C/FA/2663/2006 JUDGMENT DATED: 02/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2663 of 2006
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2006
In R/FIRST APPEAL NO. 2663 of 2006
With
CIVIL APPLICATION (FOR ORDERS) NO. 3 of 2006
In R/FIRST APPEAL NO. 2663 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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GIRDHARI KODANDAS GOPALANI
Versus
NEW INDIA ASSURANCE CO. LTD & ANR.
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Appearance:
MR PARTH SALUJA for MR AS VAKIL(962) for the Appellant(s) No. 1
MR HEMANT S SHAH(756) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 02/12/2025
ORAL JUDGMENT
1. This appeal is preferred by the appellant - original plaintiff under Section 96 of the Code of Civil Procedure, 1908 (for short, hereinafter referred to as `the Code') challenging the judgment and decree dated 29.12.2005 (for short, `the impugned judgment') passed by the learned Additional Senior Civil Judge, Gandhidham - Kutch in Special Civil Suit No.47 of 1996 whereby the suit of the present appellant Page 1 of 18 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:08:41 IST 2025 NEUTRAL CITATION C/FA/2663/2006 JUDGMENT DATED: 02/12/2025 undefined was dismissed by learned trial Court.
2. Heard learned advocate Mr. Parth Saluja for learned advocate Mr. A. S. Vakil for the appellant and learned advocate Mr. Hemant Shah for respondent No.1 through Video Conferencing. Though served, none appeared for the respondent No.2. Perused the record.
3. The facts in brief of the case are as under:
* The appellant - plaintiff being is owner of a motor vehicle Mini Bus Swaraj Mazda No.GJ-3-T-9580. The said vehicle was insured with original defendant No.1 - present respondent No.1 insurance company. The said bus met with an accident on 21.10.1991 with a tanker bearing registration No.GJ-12T-5744. FIR was lodged. The vehicle in question Swaraj Mazda No.GJ-3-T-9580 was totally damaged in the accident. The plaintiff filed a claim for an amount of Rs.3,50,000/- before the insurance company. The insurance company repudiated the claim on 10.6.1993. Page 2 of 18 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:08:41 IST 2025
NEUTRAL CITATION C/FA/2663/2006 JUDGMENT DATED: 02/12/2025 undefined The plaintiff therefore filed a suit for recovery of the amount against the defendants.
* Defendant No.2 who was the owner of the other vehicle namely tanker number GJ-12-T-5744, though served, did not remain present and the suit proceeded ex- parte against defendant No.2. Defendant No.1 - insurance company appeared and filed written statement at Exhibit 19 and denied the claim of the plaintiff mainly on the ground that the required mandatory permit to ply a vehicle was not there on the date of accident and the list of passengers which was required to be supplied by the plaintiff was not supplied. The defendant also alleged that there is a breach of the terms and conditions of the policy.
* On the basis of pleadings, learned trial Court framed issues at Exhibit 20. Plaintiff examined himself at Exhibit 71 and produced documentary evidences. Defendant No.1 examined three witnesses namely Hasmukhbhai at Exhibit 128, Yogeshbhai at Exhibit 130 and Anilbhai at Exhibit 133. Defendant No.1 also produced documentary evidences in Page 3 of 18 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:08:41 IST 2025 NEUTRAL CITATION C/FA/2663/2006 JUDGMENT DATED: 02/12/2025 undefined support of the defense. After considering the evidence on record, learned trial Court dismissed the suit. * Being aggrieved and dissatisfied with the impugned judgment, present appellant has preferred the first appeal.
4. Learned advocate for the appellant has contended that the learned trial Court has not appreciated the documentary evidence, more particularly Exhibit 103 which is a communication issued by RTO, Rajkot to the plaintiff dated 6.5.1992. It is contended that the said letter in clear terms indicate that the application of plaintiff dated 22/23.11.1990 seeking contract carriage permit of the bus was granted on 11.10.1991. Therefore, on the date of accident the plaintiff was having a valid permit to ply a vehicle. It is further submitted that on 8 th May, 1992, plaintiff supplied documents to the insurance company for clearance of the claim. Such documents contained list of passengers as well as letter from original Regional Transport Committee, Rajkot regarding permit. Page 4 of 18 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:08:41 IST 2025
NEUTRAL CITATION C/FA/2663/2006 JUDGMENT DATED: 02/12/2025 undefined * The insurance company appointed a surveyor, whose report is produced at Exhibit 100, also states that vehicle is in total loss and as per the report of the surveyor, the market value of the damaged bus was assessed at Rs.2,49,000/-. The insurance company, thereafter offered to settle the claim for Rs.2,49,500/-. Despite this, insurance company did not settle the claim and therefore, plaintiff was constrained to write a letter dated 30.11.1992 (Exhibit
102) and requested the defendant insurance company to reimburse the loss sustained and to settle the claim of Rs.3,50,000/-. The insurance company on 10th June 1993, (Exh.80) repudiated the claim.
* The decision to repudiate the claim is against the terms and conditions of the policy and the reasons stated in the letter are wrong. The plaintiff was acquitted in a criminal case which was initiated against him under Sections 471 and 474 of Indian Penal Code, 1860 (for short, hereinafter referred to as `the IPC'). The said acquittal order further strengthens the claim of the plaintiff. The Page 5 of 18 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:08:41 IST 2025 NEUTRAL CITATION C/FA/2663/2006 JUDGMENT DATED: 02/12/2025 undefined learned trial Court has failed to appreciate the important fact that the allegation of a fake permit was not proved and established in a criminal proceedings against the plaintiff and therefore plaintiff was acquitted. * The defense raised by the insurance company that the permit is fake is therefore nullified by the order of acquittal in a criminal trial. It is further contended that the list of passengers which was asked by the insurance company was duly supplied while communication dated 08.05.1992. Certified copy of list of passengers has nothing to do with granting or rejection of permit. No other submissions are made except the above.
5. Per contra, learned advocate for respondent No.1 has supported the judgment and decree and further contended that the appeal lacks merit and, therefore, this Court may dismiss the appeal.
6. It is the case of the insurance company in the written Page 6 of 18 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:08:41 IST 2025 NEUTRAL CITATION C/FA/2663/2006 JUDGMENT DATED: 02/12/2025 undefined statement as well as in oral deposition of Hasmukhbhai Jansari recorded at Exhibit 128 that the plaintiff has committed breach of the terms and conditions of the policy. The plaintiff stated wrong numbers of Chassis and Engine in the plaint. It is also the case of defendant - insurance company that the plaintiff at the time of issuance of policy did not produce permit issued by the RTO authorities for the inspection. After the intimation of the accident, the insurance company appointed a surveyor. As per the survey report, the plaintiff was called upon to produce documents pertaining to the vehicle in question, but plaintiff did not produce the same before the surveyor for inspection. The plaintiff was called upon to produce road permit and passenger list being carried in the bus at the time of accident. However, the plaintiff did not produce the required road permit.
7. The assessment of the damage to the vehicle which was assessed by surveyor at Rs.2,49,000/- could not be processed because for settling the claim, defendant - Page 7 of 18 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:08:41 IST 2025
NEUTRAL CITATION C/FA/2663/2006 JUDGMENT DATED: 02/12/2025 undefined insurance company would require road permit issued by RTO and passenger list travelling in the bus on the date of accident. Number of letters were issued to the plaintiff to fulfill the aforesaid requirements, however the plaintiff did not provide legitimate permit issued by RTO and, therefore, the claim could not be settled. The sum and substance of the defense of the insurance company is that the claim has rightly been repudiated for want of valid permit issued by RTO at the time of accident.
8. I have considered submissions of the learned advocates for the respective parties and perused the Record and Proceedings.
9. The undisputed facts which are recorded by the learned trial Court in the impugned judgment are that Mini Bus bearing No.GJ-3-T-9580 is insured with the defendant No.1
- insurance company and on the date of accident there existed a valid insurance policy. The claim of the plaintiff is that on 21st October, 1991, the Mini Bus owned by the Page 8 of 18 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:08:41 IST 2025 NEUTRAL CITATION C/FA/2663/2006 JUDGMENT DATED: 02/12/2025 undefined plaintiff met with an accident with the tanker bearing No.GJ-12-T-5744. The vehicle in question was totally damaged in the accident. FIR was lodged against the driver of the bus. A spot survey was carried out by the surveyor named M/s. Upadhyaya and Associates, Gandhidham. The survey report of M/s. Upadhyaya & Associates, Gandhidham dated 25.10.1991 is placed on record.
10. As per the report dated 10 th July, 1992, (Exhibit 100), market value of the bus was assessed at Rs.2,49,000/-. It is reported by the surveyor that at the time of the assessment of loss, RC book, driving license and vehicle documents were not available for verification. There was no road permit and passenger list given by the plaintiff to the said surveyor and, therefore, the surveyor had no opportunity to verify such documents. On the basis of this report, the insurance company called upon the plaintiff to provide valid permit issued by RTO.
11. A reliance has been placed upon by learned advocate for the appellant on Exhibit 103 which is dated 6.5.1992 and Page 9 of 18 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:08:41 IST 2025 NEUTRAL CITATION C/FA/2663/2006 JUDGMENT DATED: 02/12/2025 undefined submitted that an application seeking contract carriage permit was submitted by plaintiff on 22/23.11.1990 which came to be granted by the concerned RTO office on 11.10.1991. However, if the said letter is perused, it states that the vehicle documents were not submitted within the time limit for verification and, therefore, application seeking contract carriage permit came to be rejected on 10.4.1992. The contention that on the date of the accident, the vehicle was having a valid RTO permit is only a bald statement and if the plaint is perused, it is not the case of plaintiff that on the date of accident plaintiff was having a valid permit to ply the vehicle. The repudiation of the claim of the plaintiff is on the ground of non-submission of valid permit issued by RTO at the time of accident. Time and again, plaintiff was informed to submit a valid permit issued by RTO but plaintiff has failed to submit a valid permit issued by RTO. Exhibit 103 cannot be termed as a valid permit as the said letter does not indicate the chassis number, engine number or the make of the vehicle. Exh.103 is a communication issued by RTO to the plaintiff. Page 10 of 18 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:08:41 IST 2025
NEUTRAL CITATION C/FA/2663/2006 JUDGMENT DATED: 02/12/2025 undefined The learned trial Court has observed this lacuna in evidence and dismissed the suit.
12. The contention raised by learned advocate for the appellant that by way of a civil application, plaintiff has sought to produce a document in the nature of a special permit. It is contended by learned advocate for the appellant that the said special permit is issued under Rule 70(7)(VIII) of the Gujarat Motor Vehicles Rules, 1989. The validity of permit was from 20.10.1991 to 23.10.1991. The said document could not be produced before the learned trial Court and, therefore, the appellant is seeking permission to produce this special permit issued on 8.10.1991 by RTO, Rajkot by invoking provision of Order 47 Rule 27 of the CPC.
13. As against this, learned advocate for the insurance company submitted that the application seeking permission to produce additional evidence is not maintainable as the appellant has not fulfilled the basic Page 11 of 18 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:08:41 IST 2025 NEUTRAL CITATION C/FA/2663/2006 JUDGMENT DATED: 02/12/2025 undefined requirements contemplated under Order 41, Rule 27 of the Code. It is further contended that the special permit which is placed on record also does not mention the make of the vehicle, chassis number and engine number and, therefore, the special permit which is sought to be produced is not a reliable evidence and, therefore, it cannot be taken on record.
14. The provision for the production of additional evidence in Appellate Court is laid down under Order 41, Rule 27 of the Code which is reproduced hereunder for the sake of convenience:
"27. Production of Additional Evidence in Appellate Court.
(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if-
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was Page 12 of 18 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:08:41 IST 2025 NEUTRAL CITATION C/FA/2663/2006 JUDGMENT DATED: 02/12/2025 undefined passed, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined."
15. To invoke the said provision, the party must satisfy that the documents which are sought to be produced has been refused by the Court to admit or parties seeking to produce additional evidence establishes that even after due diligence, such evidence was not within his knowledge or could not after due diligence, be produced during the trial. A power is also given to the Appellate Court who requires any documents to be produced for a substantial cause. Before exercising powers under CPC, clause (b) of Sub-Rule (1) of Rule 27 of Order 41, the Court must be satisfied prima facie that the documents which are sought to be produced as additional evidence is so relevant that if those documents are taken on record and admitted, would certainly change the complexion of the dispute and the document/s is such that it would be helpful to the Court in arriving at a conclusion.
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NEUTRAL CITATION C/FA/2663/2006 JUDGMENT DATED: 02/12/2025 undefined
16. If the document named "Special Permit" is perused, in my opinion, the same cannot be permitted to be admitted in evidence for the following reasons:
(a) The "Special Permit" produced by the appellant along with the application mentions only the name of plaintiff and the registration mark of the vehicle as GJ-3-T-9580, but the Special Permit does not mention the chassis number and engine number of the vehicle, which are very crucial and important details to be mentioned in a Special Permit, if at all granted by the concerned RTO office.
(b) Further, it is not the case of the plaintiff in the notice correspondence as well as in the pleadings that on the date of accident, a Special Permit dated 8.10.1991 was granted by the concerned RTO and on that ground, the repudiation is illegal. On the contrary, plaintiff has been reiterating in notice as Page 14 of 18 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:08:41 IST 2025 NEUTRAL CITATION C/FA/2663/2006 JUDGMENT DATED: 02/12/2025 undefined well as in other correspondence to clear the claim of the plaintiff.
17. The appellant, during the course of hearing also could not point out any valid permit issued by the concerned RTO. The terms and conditions of the policy are binding to the parties. It is a contract between insured on one hand and insurer on the other hand. Any breach committed by the insured would absolve the insurance company from its liability to pay claim. In the policy also limits use of the vehicle. In the policy, Exhibit 98, there is a specific condition as "TO LIMITATIONS AS TO USE" and knowledge or limitation as to use. The said clause stipulates that the insured can use only carriage of passengers in accordance with the permits (contract carriage or stage carriage) issued within the meaning of Motor Vehicles Act, 1988.
18. Therefore, the policy in clear terms envisages that the use of the vehicle is subject to permit issued by the authorities under the Motor Vehicles Act. The learned trial Court has Page 15 of 18 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:08:41 IST 2025 NEUTRAL CITATION C/FA/2663/2006 JUDGMENT DATED: 02/12/2025 undefined considered a fact that on the date of accident, the plaintiff was not having a valid RTO permit to ply the vehicle. The contention of learned advocate for the appellant that plaintiff was acquitted in criminal trial which were initiated under Sections 471 and 474 of the IPC, and, therefore, the allegation of fake RTO permit or not having valid RTO permits to ply vehicle on the date of accident does not survive. Such contentions though sounds attractive but has no legal force. It is well established notion of law that decision / findings of criminal proceedings cannot be used as evidence in civil proceedings. Considering the evidence, the learned trial Court dismissed the suit. In my view, the findings and reasonings of the learned trial Court are in consonance with law and as per the evidence on record. Merely because of second view is possible, the view adopted by the learned trial Court on the basis of evidence cannot be replaced by interfering in the findings of fact.
19. It will be in the fitness of things to refer a decision of Hon'ble Apex Court in the case of Kishan Singh v. Gurpal Page 16 of 18 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:08:41 IST 2025 NEUTRAL CITATION C/FA/2663/2006 JUDGMENT DATED: 02/12/2025 undefined Singh reported in 2010(8) SCC, 775. Relevant paragraph of the said decision is reproduced hereunder:
"18. Thus, in view of the above, the law on the issue stands crystallized to the effect that the findings of fact recorded by the Civil Court do not have any bearing so far as the criminal case is concerned and vice-versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject matter and both the cases have to be decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of Sections 41 to 43 of the Indian Evidence Act, 1872, dealing with the relevance of previous Judgments in subsequent cases may be taken into consideration."
20. A criminal case judgment is generally not used as evidence in a civil case because the two proceedings are separate with different standards of proof and legal objectives. A Civil Court is not bound by the outcome of a criminal case and a Criminal Court is not bound by the outcome of civil case. Criminal cases require proof beyond a reasonable doubt while Civil cases require a preponderance of the evidence. The term judgment is defined in Section 2(9) off the Code of Civil Procedure, 1908 and denotes the final determination of the rights and obligations of the parties in a civil proceedings, setting for the grounds of decision, Page 17 of 18 Uploaded by VATSAL S. KOTECHA(HC00352) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:08:41 IST 2025 NEUTRAL CITATION C/FA/2663/2006 JUDGMENT DATED: 02/12/2025 undefined including the facts, issues, evidence, and findings thereon. Criminal proceedings encompasses the points for determination, the decision and the reasons for the decision as stipulated in Section 354 of the Code of Criminal Procedure, 1973.
21. In view of the totality of the facts and in view of above discussion, the appeal deserves to be dismissed and accordingly, it is dismissed. Record & Proceedings be sent back to the concerned Court forthwith. Interim Relief, if any, stands vacated forthwith. No order as to costs.
22. Connected civil applications also stand disposed of as they would not survive in view of dismissal of the main matter.
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