[Cites 1, Cited by 0]
Bombay High Court
Bajaj Allianz General Insurance ... vs Vijay Hanumant Gaikwad And Anr. on 22 December, 2025
2025:BHC-AS:56786
S.S.Kilaje 14-FA-393-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 393 OF 2022
Bajaj Allianz General Insurance Company Ltd. )
GE Plaza, Airport Road, Yerwada, Pune - 411006 ) Appellant
versus
1 Vijay Hanumant Gaikwad )
Age : 33 Years, Occu : Nil )
Residing at Laltopi Nagar, Morwadi, )
Behind Pimpri Court, Pimpri, Pune - 18 )
2 Mahindar Freight Carriers )
MFC Trading Company Pvt. Ltd. )
Plot No. 124, Behind APMC Police Station, )
Sectore - 19C, Vashi, New Mumbai - 400703 )
& W.No. 03, Old Talwandi Road, )
Zira District, Firozpur - 152002 )
State Punjab ) Respondents
............
Mr. Sarthak Diwan, Advocate for the Appellant.
Mr. Rajesh More, Advocate for Respondent No.1/claimant.
CORAM : R. M. JOSHI, J.
DATE : 22nd DECEMBER, 2025.
ORAL JUDGMENT :
1. Respondent No.2 i.e. owner is duly served, absent. Hence
proceed ex-parte against respondent No.2.
2. By consent of appellant /insurer and respondent No.1 /
claimant appeal heard finally.
3. Learned counsel for the appellant submits that the only issue
S.S.Kilaje 14-FA-393-2022.doc
involved in this appeal is the modification of the Judgment and Award
thereby a direction is required to be issued for recovery of the amount of
compensation by the insurer from the owner of the offending vehicle.
4. Learned counsel for the appellant drew attention of the Court to
the evidence on record which indicates that the insurer led evidence of
Pranav Datye, RW-1 (Exhibit-47) who deposed about the driver of the
truck Trailer bearing No. PH-05/Q-8665 was not holding valid and
effective driving licence. He also proved the issuance of notice to the
driver as well as owner of the vehicle seeking the production of the driving
licence. It is his contention that in spite of the notice, driver of owner
failed to produce driving licence. It is contented that by examining witness
and by proving the said communication, burden of the insurer has been
discharged. It is his contention that that onus has shifted upon the owner
to prove otherwise. It is his submission that in identical facts, the
coordinate bench in the case of Bajaj Allianz General Insurance Co. Ltd. Vs.
Wahidbi and Anr. 1, has held that in such circumstances the insurer is
entitled for the order of pay and recover.
5. The absence of respondent No.2 indicates that respondent No.2-
owner of the vehicle is not interested in opposing the appeal.
6. Perusal of the record indicates that in written statement specific
plea was raised by the insurer with regard to there is no valid and effective
1 2014 SCC OnLine Bom 795
S.S.Kilaje 14-FA-393-2022.doc
driving licence held by the driver of the offending vehicle during the
relevant time. After incorporating said defence in the pleading the insurer
examined witness before the Tribunal in order to prove that a notice was
issued to the owner as well as driver of the offending vehicle calling upon
them to produce the driving licence. This Court therefore finds substance
in the contention of learned counsel for the appellant that the insurer has
discharged the initial burden upon it to prove that the driver of the
offending vehicle was not having driving licence. The burden therefore
shifted upon the owner to prove otherwise. Merely because the driver of
the vehicle was not examined by Opponent No.2, the evidence led before
the Court for issuance of notice to the driver and owner cannot be
discarded. If the owner chooses not to lead evidence in rebuttal, he must
suffer therefor. The judgment cited in the case of Bajaj Allianz General
Insurance Co. Ltd. (supra), squarely applies to the present case.
Consequently, the impugned Judgment and Award deserves modification.
7. The Judgment and Award stands modified in following terms:
ORDER
(a) The appellant / Insurer to pay first but would be
entitled to recover the amount of compensation from the
owner on the basis of this Judgment.
(b) Rest of the Judgment and Order remains
S.S.Kilaje 14-FA-393-2022.doc
unaltered.
(c) The statutory amount be transferred to the Tribunal.
The parties are at liberty to withdraw it as per the Rules.
(d) All pending interim applications, if any, stand
disposed of.
(e) R & P be sent back to the Tribunal.
(f) Respondent No.1/claimant is permitted to
withdraw the amount deposited before the Tribunal.
8. The appeal is disposed of.
(R. M. JOSHI, J.)
Digitally
signed by
SONALI
SONALI SATISH
SATISH KILAJE
Date:
KILAJE 2025.12.23
09:33:33
+0700
