Gujarat High Court
The New India Assurance Company Ltd vs Babuji Nathaji Rathod on 10 September, 2025
NEUTRAL CITATION
C/FA/605/2022 JUDGMENT DATED: 10/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 605 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE --Sd/-
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Approved for Reporting No Yes
No
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THE NEW INDIA ASSURANCE COMPANY LTD
Versus
BABUJI NATHAJI RATHOD & ORS.
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Appearance:
MR KV GADHIA(319) for the Appellant(s) No. 1
NISHIT A BHALODI(9597) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 3
UNSERVED EXPIRED (R) for the Defendant(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 10/09/2025
ORAL JUDGMENT
1. Heard Mr. K. V. Gadhia, learned advocate for the appellant - insurance company. Mr. Nishit Bhalodi, learned advocate has entered appearance on behalf of the respondent no.2.
2. Notice of admission issued upon the respondent no.3 is Page 1 of 10 Uploaded by AMAR RATHOD(HC01074) on Fri Sep 19 2025 Downloaded on : Sat Sep 20 02:52:42 IST 2025 NEUTRAL CITATION C/FA/605/2022 JUDGMENT DATED: 10/09/2025 undefined reported to have been duly served, however, no appearance has been entered. It is further reported that the respondent no.1, who is a father of the deceased is reported to have expired.
3. Considering the challenge made and the grounds raised in the appeal, the Co-ordinate Bench vide order dated 28 th March, 2022 had admitted the appeal and in an application for stay preferred by the present appellant, this Court had stayed the impugned judgment and award on a condition of deposit of entire award amount with costs and interest with the concerned Tribunal.
4. On 14th July, 2022, noticing the fact that the entire amount has been deposited with the concerned Tribunal, the Co-ordinate Bench had released and disbursed 30% of the deposited amount in favour of the original claimants and 70% of the remaining amount was permitted to be invested in the Fixed Deposit in any Nationalized bank initially for the period of five years, which was directed to be renewed from time to time pending the appeal. The interest on such FDR was directed to be paid periodically to the original claimants. Page 2 of 10 Uploaded by AMAR RATHOD(HC01074) on Fri Sep 19 2025 Downloaded on : Sat Sep 20 02:52:42 IST 2025
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5. Considering the limited challenge by the appellant - insurance company, with the assistance of the learned advocates for the respective parties on record, the present appeal is taken-up for final hearing.
6. Learned advocate for the appellant at the outset has submitted that the original claim proceedings were initiated by the respondent nos.1 and 2 herein by preferring claim petition under Section 163A of the Motor Vehicles Act, 1988 praying for compensation of untimely death of their son Pravin Babuji Rathod, who had in fact join the journey as a cleaner on the offending truck being registration no.GTY- 5166.
6.1 Learned advocate had further pointed-out that on 19 th March, 2017, while deceased was on road, the said truck had collided with an electric pole and due to shock, the deceased had expired. The original claimants have therefore prayed for recovery of Rs.5,11,166/- with interest at the rate of 18% and proportionate costs to be realized from the original opponents.
Page 3 of 10 Uploaded by AMAR RATHOD(HC01074) on Fri Sep 19 2025 Downloaded on : Sat Sep 20 02:52:42 IST 2025
NEUTRAL CITATION C/FA/605/2022 JUDGMENT DATED: 10/09/2025 undefined 6.2 The claim petition was objected by the insurance company by filing written statement at Exh.29, wherein they have not only challenged the facts of the case, the occurrence of the accident vis-a-vis their liability to pay compensation, the specific defence of the driver of the truck not having valid and effective driving license was raised. By raising such contentions, the insurance company has prayed for dismissal of the claim petition.
6.3 Noticing the overall pleadings on record, the Tribunal has framed issues. While considering the issue no.1, which pertains to the occurrence of accident vis-a-vis the cause of death of the deceased due to accident in which the vehicle of the opponent was involved, the Tribunal has mainly dealt with the contention about the existence of the valid and effective driving licence, however, the Tribunal has failed to consider the issue with regard to the involvement of the vehicle and the death of the deceased being caused due to use of offending vehicle. Learned advocate had therefore urged to quash and set aside the impugned judgment and award and to exonerate the insurance company from its liability to pay compensation. Page 4 of 10 Uploaded by AMAR RATHOD(HC01074) on Fri Sep 19 2025 Downloaded on : Sat Sep 20 02:52:42 IST 2025
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7. Per contra, learned advocate for the respondent no.2 - original claimant has mainly relied upon the findings and reasons assigned by the Tribunal. However, he was unable to contradict the aforesaid submissions made by the learned advocate for the appellant. Referring to the findings and reasons assigned by the Tribunal, learned advocate had submitted that the Tribunal has observed that from the evidence on record, it has been established that the deceased has expired out of use of offending truck, he has therefore urged this Court to not to interfere with the impugned judgment and award and to dismiss the present appeal.
8. Considering the aforesaid submissions of the learned advocates for the respective parties, in light of the findings and reasons assigned by the Tribunal, the only issue which falls for consideration of this Court in the appeal is as to whether the Tribunal committed any error while deciding the issue as to whether the original applicant had proved that the deceased had died due to accident in which the vehicle of the original opponent was involved?
9. To appreciate the argument of the learned advocate for Page 5 of 10 Uploaded by AMAR RATHOD(HC01074) on Fri Sep 19 2025 Downloaded on : Sat Sep 20 02:52:42 IST 2025 NEUTRAL CITATION C/FA/605/2022 JUDGMENT DATED: 10/09/2025 undefined the appellant, it would be appropriate to revisit the findings and reasons assigned by the Tribunal while answering the aforesaid issue no.1.
"...[8] This issue pertains to the negligence of the offending vehicle and the resultant death of Pravinbhai Babuji Rathod i.e. the Son of the applicants. The applicant has filed his affidavit of examination-in-chief at Ex. 14, and narrated the facts of the application. The said witness has been cross-examined by the Learned Advocate of the Opponent No.2., wherein she has admitted that she was not present at the time of accident and therefore she has no personal knowledge about the accident. She further denied that there was no negligence on part of the driver of truck no.
GTY 5166 even though she claimed for compensation against the driver and she has accepted that FIR was not lodged of the accident and she also accepted that she has not produced any evidence that her son was earned Rs.40,000/ p.a by doing labour work. She Denied that her son was not earned Rs. 40,000/- p.a. but admitted that she has not produced any proof regarding the age of her Son and expenses incurred towards the religious ritual.
In support of his case, the applicant has produced the copy of panchnamas, P.M. Report, Page 6 of 10 Uploaded by AMAR RATHOD(HC01074) on Fri Sep 19 2025 Downloaded on : Sat Sep 20 02:52:42 IST 2025 NEUTRAL CITATION C/FA/605/2022 JUDGMENT DATED: 10/09/2025 undefined Insurance Policy, R.C. Book of offending vehicle, Fitness report and permit of the truck and other documents. It is important to note that present petition has been filed under Section 163(A) of M.V Act and therefore the question of negligence is not required to be decided. It is only required to decide that whether the offending vehicle was involved in the accident or not. It is also important to decide that whether death of the deceased i.e. pravinbhai has been caused due to use of offending vehicle or not. From the evidence on record, it is clear that deceased Pravinbhai has expired out of use of offending Truck No. GTY 5166. The insurance company has taken contention that driver of the Truck was not holding driving license and therefore the Insurance Company is not liable to pay compensation and therefore Insurance Company may be exonerated. But the Insurance Company has not tried to examine the driver of the truck or the owner of the truck. Of course, the Insurance Company has submitted an application of production of driving license and fitness certificate from Opponent No.1 vide exh. 26, but the Opponent has not produced any such documents. But at the same time, the Insurance Company also could have applied to issue witness summons to the driver and owner of the truck but it has not done so. Therefore adverse inference Page 7 of 10 Uploaded by AMAR RATHOD(HC01074) on Fri Sep 19 2025 Downloaded on : Sat Sep 20 02:52:42 IST 2025 NEUTRAL CITATION C/FA/605/2022 JUDGMENT DATED: 10/09/2025 undefined has to be drawn against the Insurance Company and taken into consideration the dispute of the Insurance Company that the driver of the truck was not holding driving license to drive the truck. Hence, I answer the issue No. 1 accordingly in the affirmative."
10. On close perusal of the aforesaid findings and reasons assigned by the Tribunal, it is apparent that a general observation has been made by the Tribunal by holding that "from the evidence on record, it is clear that the deceased has expired out of use of offending truck no.GTY 5166." Except the aforesaid observation, no further discussion with regard to the evaluation of evidence to arrive at conclusion about the same having contributed to the death of the deceased has been drawn by the Tribunal. Noticing the aforesaid findings and reasons, in the opinion of this Court, this is a fit case of remand. Let the Tribunal may reconsider and reevaluate the entire evidence brought on record by the respective parties and to accordingly decide on the respective issues of negligency and liability. In absence of any arguments being advanced with regard to the quantum of compensation, the same is not required to be reconsidered. The findings and reasons and ultimate conclusion, which may be drawn by the Page 8 of 10 Uploaded by AMAR RATHOD(HC01074) on Fri Sep 19 2025 Downloaded on : Sat Sep 20 02:52:42 IST 2025 NEUTRAL CITATION C/FA/605/2022 JUDGMENT DATED: 10/09/2025 undefined Tribunal on the issue no.1, the quantum of compensation may be appropriately considered while passing final judgment and award.
11. With these observations, the First Appeal is allowed. The matter is remanded back to the Tribunal for the limited purpose to reexamine the issue no.1 in light of the evidence brought on record so far.
12. At this stage, learned advocate for the respective parties have urged this Court to make suitable observation in order to appreciate their respective case before the Tribunal in case if the parties are required to led further evidence, they may be permitted to do so.
13. Noticing the aforesaid submissions of the learned advocate for the respective parties, since the matter is remanded back to the Tribunal to reexamine the issue no.1 in light of the evidence brought on record, it shall be open for the respective parties to led further evidence in case if required before the Tribunal to assist the Tribunal on the aforesaid issue, if the circumstances demands so.
14. With these observations, First Appeal stands disposed Page 9 of 10 Uploaded by AMAR RATHOD(HC01074) on Fri Sep 19 2025 Downloaded on : Sat Sep 20 02:52:42 IST 2025 NEUTRAL CITATION C/FA/605/2022 JUDGMENT DATED: 10/09/2025 undefined of. Needless to clarify that the ultimate conclusion of the Tribunal on issue no.1 shall govern the further directions of the quantum of compensation, which is otherwise not disturbed by this Court in the present appeal. Since the accident relates to the year 2017 and the matter is remanded back to the Tribunal for reconsideration on limited issue, it is expected from the Tribunal to expedite the hearing of the proceeding and conclude the same preferably within a period of three months from the date of receipt of this order.
15. Since the appeal is dismissed and the matter is remanded back to the Tribunal, 70% of the invested amount amount in the Fixed Deposit shall continue to be invested in the cumulative Fixed Deposit and shall be governed by the outcome of the final judgment and award which may be passed by the Tribunal.
16. The R. & P. are hereby directed to be send back forthwith to the concerned Tribunal with the writ of this order.
Sd/-
(NISHA M. THAKORE, J.) AMAR RATHOD...sfs/17.09 Page 10 of 10 Uploaded by AMAR RATHOD(HC01074) on Fri Sep 19 2025 Downloaded on : Sat Sep 20 02:52:42 IST 2025