Gujarat High Court
United India Insurance Co.Ltd vs Benkiben Wd/O Bharatbhai Gumajibhai ... on 3 December, 2025
NEUTRAL CITATION
C/FA/638/2022 JUDGMENT DATED: 03/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 638 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Sd/-
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Approved for Reporting Yes No
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UNITED INDIA INSURANCE CO.LTD
Versus
BENKIBEN WD/O BHARATBHAI GUMAJIBHAI BHURIYA & ORS.
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Appearance:
MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1
RULE SERVED for the Defendant(s) No. 1,2,3,4,5,6,7,8,9
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 03/12/2025
ORAL JUDGMENT
1. The present appeal under Section 173 of the Motor Vehicles Act, 1988 has been filed challenging the judgment and award dated 12.09.2018 and 14.09.2018 passed by the learned MACT (Aux.), Dahod in MACP No. 357 of 2006.
2. Heard Mr. Palak Thakkar, learned advocate for the appellant. Though served, none appears for the respondents.
3. The brief facts of the present appeal are that on 30.06.2006, the deceased Bharatbhai was walking from Nahpur towards Garbada. When he reached near Gulbar Patiya, opponent No.1, who was acquainted with the deceased, offered him a lift in Jeep bearing registration No. GJ-18-A-2046.
Page 1 of 5 Uploaded by ALI ISTAYAK(HC01093) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:16:17 IST 2025NEUTRAL CITATION C/FA/638/2022 JUDGMENT DATED: 03/12/2025 undefined Opponent No.1 was driving the vehicle in a rash and negligent manner and, near the place of incident, suddenly applied the brakes, causing the deceased to be thrown out of the vehicle and fall on the road. As a result, the deceased sustained severe injuries and subsequently succumbed to death.
4. Learned advocate for the appellant submitted that the Tribunal has committed an error in fastening liability upon the insurance company, even though the record clearly establishes a violation of the conditions of the insurance policy. It is submitted that the deceased and the claimant were travelling in the vehicle for hire and reward in a private vehicle. Other passengers paid the fare to the driver/owner, and although the deceased and the claimant were also to pay the fare, the deceased could not do so due to the accident. As it stands proved on record that the deceased was travelling as a fare-paying passenger, the Tribunal erred in saddling liability upon the insurance company. Hence, it is requested that the insurance company be exonerated and the present appeal be allowed.
5. Having heard the learned advocate for the appellant- insurance company and upon perusal of the record and the impugned judgment, it appears that the learned Tribunal saddled liability upon the insurance company on the ground that the insurer failed to prove its defence regarding hire and reward. No witness was examined by the insurance company to establish this defence. In the absence of any evidence on record to show that the deceased was a fare-paying passenger, and since the Page 2 of 5 Uploaded by ALI ISTAYAK(HC01093) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:16:17 IST 2025 NEUTRAL CITATION C/FA/638/2022 JUDGMENT DATED: 03/12/2025 undefined risk of third parties was covered under the policy, the insurance company failed to prove breach of policy conditions.
6. The cross-examination of the claimant, Devkiben Bharatbhai Munia, who was travelling along with the deceased, is produced at Exhibit 20. The involvement of the offending vehicle is not in dispute. The complaint is produced at Exhibit 24, and the charge-sheet has also been filed against the driver of the offending vehicle. The insurance policy is produced at Exhibit 30, and the coverage under the policy is also not in dispute. The factum of death due to the vehicular accident is also undisputed.
7. From the evidence on record, it appears that the claimant- witness, who was travelling along with the deceased, admitted that she and the deceased were travelling in Jeep No. GJ-18-A- 2046 and that other passengers travelling in the jeep had paid the fare. She further admitted that she was also required to pay the fare but could not do so due to the accident. Thus, it stands established that both the claimant and the deceased were travelling in a private vehicle as fare-paying passengers, amounting to a clear breach of policy conditions. When the breach stands proved through cross-examination and documentary evidence on record, no further independent evidence is required. The Tribunal ought to have appreciated this material, as claim petitions are required to be decided on the preponderance of probabilities. Once breach of policy conditions is proved, further proof is unnecessary. It is also relevant that Page 3 of 5 Uploaded by ALI ISTAYAK(HC01093) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:16:17 IST 2025 NEUTRAL CITATION C/FA/638/2022 JUDGMENT DATED: 03/12/2025 undefined opponent No.1, the driver of the offending vehicle, though duly served, did not appear or step into the witness box.
8. In view of the above, the learned Tribunal committed an error in saddling liability upon the insurance company, and therefore the insurance company is required to be exonerated. To that extent, interference is warranted. However, it is clarified that the deceased was a third party, and on the date of the accident, the insurance policy was in force. The deceased had no privity with the insurance contract, as the policy is an agreement between the owner and the insurer. Considering the object of the Motor Vehicles Act, the principle of "pay and recover" ensures that victims are not left uncompensated due to disputes between the owner and insurer. At the same time, contractual accountability mandates that an owner who breaches policy conditions cannot escape financial responsibility, and the insurer retains the right to recover the amount paid to the claimant. This dual approach justice to the victim and fairness to the insurer maintains the integrity of the motor accident compensation system.
9. In view of the judgments of the Hon'ble Supreme Court in Rambabu Tiwari v. United India Insurance Co., (2008) 8 SCC 165; K. Nagendra v. New India Insurance Co. Ltd., 2025 SCC OnLine SC 2297; Parminder Singh v. New India Assurance Co. Ltd., (2019) 7 SCC 217; and Chatha Service Station v. Lalmati Devi, 2025 INSC 468, wherein the Court exonerated the insurance company from liability for breach of Page 4 of 5 Uploaded by ALI ISTAYAK(HC01093) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:16:17 IST 2025 NEUTRAL CITATION C/FA/638/2022 JUDGMENT DATED: 03/12/2025 undefined policy conditions but declined to interfere with the direction of "pay and recover", the direction issued by the learned Tribunal in the present case also does not warrant any interference.
10. This Court also deems it fit to refer to the judgment dated 02.12.2025 passed by this Court in United India Insurance Co. Ltd. v. Minor Shobhaben Madhubhai Patadia & Ors., First Appeal No. 3885 of 2025, wherein the order of "pay and recover" passed by the learned Tribunal was held to be just and proper.
11. In view of the above, the present appeal is partly allowed. The insurance company is directed to pay the amount of compensation to the claimant/deceased and shall thereafter have liberty to recover the same from the driver and owner of the offending vehicle opponent Nos. 1 and 2, who are respondent Nos. 8 and 9 herein.
12. Record and proceedings, if any, be sent back to the concerned Tribunal forthwith. Pending civil applications, if any, shall stand disposed of accordingly.
Sd/-
(HASMUKH D. SUTHAR,J) ALI Page 5 of 5 Uploaded by ALI ISTAYAK(HC01093) on Thu Dec 04 2025 Downloaded on : Thu Dec 04 21:16:17 IST 2025