Oriental Insurance Co. Ltd vs Kantaben Rameshbhai Gohil
2022 Latest Caselaw 943 Guj

     C/FA/2333/2007                               JUDGMENT DATED: 31/01/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/FIRST APPEAL NO. 2333 of 2007


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                      ORIENTAL INSURANCE CO. LTD.
                                 Versus
                  KANTABEN RAMESHBHAI GOHIL & 5 other(s)
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Appearance:
MR HARDIK P MEHTA(6943) for the Appellant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 1,2
NOTICE SERVED for the Defendant(s) No. 3,4,6
NOTICE UNSERVED for the Defendant(s) No. 5
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    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                              Date : 31/01/2022

                             ORAL JUDGMENT

1. The present appeal is filed by the Insurance Company against the judgment and award passed by the Motor Accident Claims Tribunal (Auxi.), Vadodara dated 03.02.2007 in MACP

C/FA/2333/2007 JUDGMENT DATED: 31/01/2022

No. 518 of 1994, whereby the Tribunal has partly allowed the claim petition by awarding Rs. 5,05,000/- towards the compensation of the original claimants.

2. Learned advocate for the appellant- Insurance Company has submitted that the deceased was travelling as a gratuitous passenger and therefore the claimants are not entitled to get the compensation from the present appellant - Insurance Company. It is submitted that the deceased was neither travelling with the goods nor the owner of the goods, therefore, the liability can not be fastened against the Insurance Company. It is submitted that the impugned judgment and award requires to be quashed and set aside and the Insurance Company may be exonerated from its liability.

3. Having heard learned advocates for the respective parties and having gone through the record and proceedings and also perused the Panchnama at the place of the accident and documentary evidence led by the original claimants, I am of the view that the Tribunal has rightly appreciated and considered the fact that the deceased was travelling with the goods in the offending vehicle and therefore, the Tribunal has rightly held the present Insurance Company liable to pay the compensation. The Tribunal has rightly considered the contention while passing the impugned judgment and award.

This Court has gone through the decisions rendered by this Court in the case of National Insurance Company Ltd. Vs. Lakhuben Punabhai Vaghari and others reported in 2006 Law Suit (Guj) 632 and National Insurance Company Ltd. Vs. Heirs of deceased Hansrajbhai @ Hasmukhbhai Makanbhai and

C/FA/2333/2007 JUDGMENT DATED: 31/01/2022

others reported in 2021 Law Suit (Guj.) 4960, In the case of Lakhuben Punabhai Vaghari (supra), this Court has observed in paras- 6 & 7 as under:

"6. It is now settled by a catena of decisions of the Supreme Court that all defences are to be proved by the insurer like the appellant. In the face of this specific averment in the claim petitions that the persons were travelling alongwith their goods, the onus to disprove this averment rests upon the appellant Insurance Co. Had the appellant - Insurance Company discharged this onus, it would have gone a long way in proving whether, or not, the deceased persons were gratuitous passengers. Unfortunately, it has failed to do so and has not even brought the driver of the offending truck into the witness box. The burden to prove the breach of a term of contract rests squarely on the party which complains of such breach. The test which can be applied in such a situation would be that which party would fail if no evidence is led or the onus is not discharged. In the present case, the answer would be the appellant Insurance Company. In this behalf, reference can be made to 1985 ACJ 397 (Narcinva V. Kamat v. Alfredo Antonio Doe Martins) and 2004 ACJ 1 (National Insurance Co.Ltd. v. Swaran Singh). In National Insurance Co.Ltd. v. Swaran Singh (Supra) the Supreme Court has observed as under: "62. the proposition of law is no longer res-integra that the person who alleges breach must prove the same. The insurance company is, thus, required to establish the said breach by cogent evidence. In the event the insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability. (See Sohan Lal Passi, 1996 ACJ 1044 (SC)."

      "S102       (i)**********
              (ii)**************
              (iii)**************

(iv) The Insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle, the burden of proof wherefor would be on them.

(v) The court cannot lay down any criteria as to how said burden would be discharged, inasmuch as the same would

C/FA/2333/2007 JUDGMENT DATED: 31/01/2022

depend upon the facts and circumstances of each case."

7. Applying the ratio of the law laid down by the Supreme Court, as referred to above, it is evident that the appellant, in the present case has failed to lead any evidence in order to prove that the deceased persons were gratuitous passengers who were travelling in an unauthorised manner in the truck and without any goods. The specific averment in the claim petition that the deceased persons were travelling in the truck alongwith their goods has not been dislodged during the entire proceedings before the M.A.C.Tribunal and in the absence of any evidence or material on record to the contrary, it has rightly been relied upon by the M.A.C.Tribunal to come to the conclusion that the deceased persons were travelling in the truck alongwith their goods and, as such they were not gratuitous passengers. Having failed to discharge the burden of proof in support of this contention, it is not open to the appellant at this stage to try and bring about a re-appraisal of the evidence on facts. There is no reason for this Court to go into the factual aspect of the matter or enter into a re-appraisal of evidence since the impugned judgment and award does not suffer from any illegality or perversity."

In the case of Heirs of deceased Hansrajbhai @ Hasmukhbhai Makanbhai (supra), this Court has observed in Para- 8 as under :

"8. Having considered the submissions canvassed by the learned counsel appearing on behalf of the respective parties and considered the record and proceedings of the case and the decisions cited at the bar. It clearly transpires from the panchnama of the scene of accident at Exhibit 25 that the goods narrated by the complainant and the witnesses are found at the place of occurrence and the Insurance Company has not examined the driver of the vehicle and, therefore, there is no cogent and reliable evidence led by the Insurance Company. Therefore, the case of the original claimants cannot be thrown away merely because they are sitting in the goods vehicle, but, since they are owners of the goods and they are travelling in the goods vehicle from Surendranagar to Unjha for selling of their goods respectively in better place. Therefore, considering the contents of the FIR and the panchnama, it appears that the decisions relied upon by the learned counsel appearing for the appellant are not applicable to the facts of the present case. After evaluating the evidence, it appears

C/FA/2333/2007 JUDGMENT DATED: 31/01/2022

that the Tribunal has rightly held liable to the appellant for compensation. At this juncture, it is required to be noted that the claimants have not preferred any appeal/s for enhancement of the amount of compensation. Therefore, I am in complete agreement with the reasoning and findings arrived at by the Tribunal while passing the impugned award."

4. In view of the above, the following order is passed.

4.1        The present appeal is dismissed.


4.2        The Tribunal is directed to pay the amount lying in the

FDR in the name of the original claimants by issuing account payee cheque in favour of the original claimants after due verification with interest accrued on it.

Record and Proceedings be sent back to the concerned Tribunal forthwith.

(HEMANT M. PRACHCHHAK,J) Salim/