Gujarat High Court
New India Assurance Co. Ltd vs Gayatridevi Brijnarayan Morya on 22 January, 2025
NEUTRAL CITATION
C/FA/4167/2007 ORDER DATED: 22/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4167 of 2007
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NEW INDIA ASSURANCE CO. LTD.
Versus
GAYATRIDEVI BRIJNARAYAN MORYA & ORS.
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Appearance:
MR RITURAJ M MEENA(3224) for the Appellant(s) No. 1
DS AFF.NOT FILED (R) for the Defendant(s) No. 6
MR.HIREN M MODI(3732) for the Defendant(s) No. 1
RULE SERVED BY DS for the Defendant(s) No. 2,3,4,5,7
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 22/01/2025
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 08.03.2007 passed by the Motor Accident Claims Tribunal, Gondal in Motor Accident Claim Petition No.277 of 1990.
2. Brief facts of the case are as under:
2.1 The brief fact of the present appeal is such that on 13.02.1990, the deceased was travelling in jeep No.GBL-9872 which was driven by opponent No.1 in rash and negligent manner and they were going to Mangrol from Ahmedabad and when they reached near the place of accident, opponent No.1 lost control over the steering and due to the the vehicle turned turtle and dragged into one deep dig. As a result, the accident Page 1 of 4 Uploaded by GAURAV J THAKER(HC00951) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:24:07 IST 2025 NEUTRAL CITATION C/FA/4167/2007 ORDER DATED: 22/01/2025 undefined took place and deceased sustained severe injuries and succumbed to the injuries. The legal heirs of the deceased have filed aforestated claim petition under Section 166 of the Motor Vehicle Act, 1988 claiming compensation of Rs.5,00,000/-. The learned Tribunal vide impugned judgment and award dated 08.03.2007 has granted compensation to the tune of Rs.3,44,700/-. Hence, the present appeal.
3. Learned advocate Mr.Rituraj Meena appearing for the appellant - Insurance Company assails the impugned judgment and award on sole ground that the learned Tribunal erred in not believing that the deceased was unauthorized passenger/unauthorized driver of the errant vehicle. He would submit that the FIR on record if read as it is, it suggests that deceased was riding the errant vehicle at the time of accident. He would further submit that since the deceased was not third party, learned Tribunal cannot adjudicate the claim under Section 166 of the Motor Vehicle Act, 1988. However, the learned Tribunal committed serious error in allowing the claim petition in favour of heirs of the deceased. In view of above submission, he submits to allow this appeal and to exonerate the Insurance Company from paying the compensation.
4. As against this submission, learned advocate Mr.Modi appearing for the claimants submits that Insurance Company though has raised the contention, but has failed to prove that the deceased was riding the errant vehicle at the time of accident or he was unauthorized passenger. He points out the reasoning given by the learned Tribunal in para 13 of the impugned judgment and award to submit that learned Tribunal has Page 2 of 4 Uploaded by GAURAV J THAKER(HC00951) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:24:07 IST 2025 NEUTRAL CITATION C/FA/4167/2007 ORDER DATED: 22/01/2025 undefined minutely observed that deceased was third party and thus, owner and Insurance Company is liable to pay the compensation. He would submit that that since the findings arrived at by the learned Tribunal is based upon facts and evidence produced on record, it should not be disturbed. Upon above submissions, he would submit to dismiss this appeal.
5. I have heard learned advocates for both sides and also perused the evidence on record. In para 13 of the impugned judgment and award, learned Tribunal has arrived at the finding as under :
"13. I have carefully gone through the submissions which are submitted by Ms.H.J.Dave, Learned Advocate on behalf of The New India Assurance company Limited opponent No.3. I have also carefully gone through the citations, which are cited by her. After perusal of that , I am of the considered view that looking to the income certificate of the deceased which was issued by the opponent No. 2 Lalbhai Group Rural Development Fund, Arvind Mills , Ahmedabad which is produced vide Ex.23, then it clearly transpires that the deceased was serving as programme Associate LGRDF, in the company of opponent No. 2 and at the time of accident, involved vehicle was also under the ownership of the opponent No.2. No any dev produced by the opponents to show that the deceased was driving the vehicle at the time of accident. Moreover, the opponents have not cared to examine the witnesses i.e. the opponent no.1 and 2 to the establish the fact that at the time of accident, deceased was driving the vehicle in question. So, I am of considered opinion that deceased was not an unauthorised Passenger of that involved vehicle but he was traveling in the said vehicle which was owned by the opponent No.2 and he was serving as programme Associate and he was going on work as entrusted by his employer i.e. opponent No. 2 and hence, it can be easily said that the deceased was travelling in the said involved vehicle as a staff member of the opponent No.2 in that particular involved vehicle at the time of the Page 3 of 4 Uploaded by GAURAV J THAKER(HC00951) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:24:07 IST 2025 NEUTRAL CITATION C/FA/4167/2007 ORDER DATED: 22/01/2025 undefined accident and not an unauthorised passenger and therefore, he can not be said to be an unauthorised passenger."
6. Though Insurance Company has raised contention that the deceased was unauthorized passenger and unauthorized driver in the errant vehicle, hopelessly failed to prove either of the contention. No evidence to that effect has been produced by the Insurance Company before the learned Tribunal and in absence of any evidence produced by the Insurance Company, contention raised by the Insurance Company cannot be believed. Mr.Keshavbhai Shejaji was joined as driver of the errant vehicle and Lalbhai Group Development Fund was joined as owner of the errant vehicle in the claim petition. The opponent No.1 who was arrayed as driver of the errant vehicle did not contest the claim petition and did not state that he was not riding the errant vehicle at the time of accident.
7. Learned advocate Mr.Meena fails to point out any other and further evidence which can indicate that deceased was driver of the errant vehicle at the time of accident or he was unauthorized passenger in the errant vehicle. In view of above and having re-appreciated the evidence on record, I find the appeal bereft of merit and deserves to be dismissed. It is, accordingly, dismissed. Registry is directed to send back the record and proceedings to the concerned Tribunal, forthwith.
(J. C. DOSHI, J) GAURAV J THAKER Page 4 of 4 Uploaded by GAURAV J THAKER(HC00951) on Tue Jan 28 2025 Downloaded on : Tue Jan 28 21:24:07 IST 2025