Gujarat High Court
National Insurance Company Limited vs Bariya Sanjaykumar Prabhatsinh on 13 January, 2025
NEUTRAL CITATION
C/FA/2648/2012 ORDER DATED: 13/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2648 of 2012
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NATIONAL INSURANCE COMPANY LIMITED
Versus
BARIYA SANJAYKUMAR PRABHATSINH & ORS.
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES for
the Defendant(s) No. 3
MR.HIREN M MODI(3732) for the Defendant(s) No. 3.1,3.2,3.3,3.4,3.5,3.6
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 13/01/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor Vehicles Act, 1988, is preferred by the appellant - Insurance Company being aggrieved and dissatisfied with the judgment and award dated 18.04.2012 passed by the Motor Accident Claims Tribunal, Vadodara in Motor Accident Claim Petition No.659 of 2005.
2. Brief facts of the case are as under :
2.1 The brief fact of the present appeal is such that on 23.02.2005, the claimant went travelling in Jeep No.GJ-17-C-
1791 and when he reached near the place of accident, the driver of the jeep i.e. opponent No.1 who was driving the jeep rashly and negligently lost control over the steering of the jeep and dashed with the rickshaw coming from opposite side. As a result, the accident took place and claimant sustained severe injuries.
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Therefore, offence to that effect is registered before the Halol Police Station vide FIR being I-C.R.No.47 of 2005. The claimant has filed aforestated claim petition under Section 166 of the Motor Vehicle Act, 1988 claiming compensation of Rs.6,00,000/-. The learned Tribunal vide impugned judgment and award dated 18.04.2012 has granted compensation to the tune of Rs.5,95,800/-. Hence, the present appeal.
3. Based upon the contents made in the FIR at Exhibit-28, it is argued by learned advocate Mr.Vibhuti Nanavati that the claimant was travelling in the jeep as fare paying passenger yet learned Tribunal erred in not exonerating the Insurance Company from liability to pay the compensation as there was a serious breach of the terms and conditions of the policy. Upon above submissions, he submits to allow this appeal and to exonerate the Insurance Company.
4. Per contra, learned advocate Mr.Hiren Modi appearing for the claimant submits that there is no evidence produced by the Insurance Company to prove the contention that the claimant was travelling in the jeep as fare paying passenger. He would further submit that merely a statement in the FIR would not constitute as evidence, the contents of the FIR cannot be treated as evidence and since the Insurance Company failed to establish that the claimant was travelling as fare paying passenger, learned Tribunal has rightly fastened liability of the Insurance Company. Upon above submissions, he would submit to dismiss this appeal.
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5. Having heard learned advocates for both sides and perusing the record and proceedings, what could be noticeable that the Insurance Company though has raised the contention that the claimant was travelling in the jeep as fare paying passenger, Insurance Company did not produce any evidence to establish the contention raised in the written statement. The solitary argument of learned advocate Mr.Nanavati is based upon FIR at Exhibit-33 which states that claimant was travelling as fare paying passenger. There is no gainsaying that the contents of the FIR cannot be read as gospel truth. It cannot be considered as evidence to believe that claimant was travelling in the jeep as fare paying passenger more particularly in absence of examining the maker of the FIR. In cross-examination of the claimant (Exhibit-28, PW-1), it is rather suggested by learned advocate appearing for the Insurance Company that the claimant was travelling in the jeep which belongs to his relative. Such suggestion itself demonstrates that even as per the cross- examination made by the Insurance Company, the claimant was not travelling as fare paying passenger.
6. If oral evidence is in contrast to the contents of the FIR, the oral evidence before the Court has to be believed that is what held by Hon'ble Supreme Court in case of National Insurance Company Limited vs. Chamundeshwari and others - 2021 (18) SCC 596. In chief-examination of PW-1 at Exhibit-28, the claimant stated that he was travelling in the jeep and was coming back after selling milk. Perusal of the chief and cross- examination indicates that Insurance Company has hopelessly failed to prove its defense that the claimant was travelling as fare Page 3 of 4 Uploaded by GAURAV J THAKER(HC00951) on Tue Jan 21 2025 Downloaded on : Sat Feb 01 00:36:54 IST 2025 NEUTRAL CITATION C/FA/2648/2012 ORDER DATED: 13/01/2025 undefined paying passenger. In view of the above, the appeal sans merit and deserves to be dismissed. It is, accordingly, dismissed. Registry is directed to send back the record and proceedings, if any, to the concerned Tribunal, forthwith.
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