United India Insurance Co.Ltd vs Kamalsinh Dalabhai Baria
2022 Latest Caselaw 1065 Guj

     C/FA/4065/2021                                   ORDER DATED: 01/02/2022



     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/FIRST APPEAL NO. 4065 of 2021
                             With
      CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
            In R/FIRST APPEAL NO. 4065 of 2021
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                UNITED INDIA INSURANCE CO.LTD
                            Versus
                  KAMALSINH DALABHAI BARIA
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Appearance:
MR VC THOMAS(5476) for the Appellant(s) No. 1
ADVOCATE NOTICE SERVED for the Defendant(s) No. 1
DECEASED LITIGANT for the Defendant(s) No. 2
MR A S SUNELWALA(11290) for the Defendant(s) No.
2.1,2.2,2.3,2.4
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 CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI

                           Date : 01/02/2022
                               ORAL ORDER

1. Heard Mr. V.C. Thomas, learned advocate for the appellant.

2. This appeal is filed under Section 173 read with Section 163(A) of the Motor Vehicle Act, 1988 (hereinafter referred to as "the Act") challenging the judgment and award passed by the Motor Accident Claims Tribunal (Aux.), Panchmahals at Godhra dated 28.02.2018, partly allowing the claim petition being M.A.C.P. No. 1631 of 2008 and awarding compensation to the claimant to the tune of Rs. 76,216/- with proportionate cost and interest at the rate of 9% per annum from the date of the claim petition till the amount is deposited.

3. Mr. V.C. Thomas, learned advocate for the appellant submitted that in a claim petition under Section 163(A) of "the Act", though negligence on the part of driver of the vehicle is

C/FA/4065/2021 ORDER DATED: 01/02/2022

not required to be proved, but at the same time, whether the driver was having a license or not, has to be considered by the Tribunal for determining the claim petition. He has produced through the Court Master a statement of the driver for the perusal of the Court and submitted that as admitted by the driver/owner - insured, he was not having license to drive even the motor vehicle involved in the accident.

The said contention is required to be rejected outright for reasons as under:-

(i) From the statement, it is not clear that who has recorded such statement of the driver/owner - insured and under what authority.

(ii) Not only that, the said statement is not even a part of the record of the Tribunal, and therefore, at the appellate stage, this Court cannot look into such statement, even if it is presumed to be true.

(iii) Since the Insurance Company had applied under Section 170 of "the Act" to defend the case, it was the duty of the Insurance Company to prove such fact before the Tribunal, which they have miserably failed.

4. Since there is no case made out for entertaining the appeal, except the ground pleaded hereinabove, I see no reason to interfere with the judgment and award passed by the Tribunal, and therefore, this appeal is hereby dismissed.

In view of the dismissal of this first appeal, the civil application also stands disposed of.

(UMESH A. TRIVEDI, J.) Raj S. Dhobi