National Insurance Company Ltd vs Idris Mohmed Kalander
2022 Latest Caselaw 2786 Guj

     C/FA/1086/2014                                CAV JUDGMENT DATED: 11/03/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/FIRST APPEAL NO. 1086 of 2014


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

==========================================================

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 ?

========================================================== NATIONAL INSURANCE COMPANY LTD.

Versus IDRIS MOHMED KALANDER & 2 other(s) ========================================================== Appearance:

MS LILU K BHAYA(1705) for the Appellant(s) No. 1 MR.HIREN M MODI(3732) for the Defendant(s) No. 2 RULE SERVED for the Defendant(s) No. 1,3 ==========================================================

CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

Date : 11/03/2022

CAV JUDGMENT

1. The present appeal is filed by the appellant - Insurance Company under Section 173 of the Motor Vehicles Act, being aggrieved by and dissatisfied with the judgment and award dated 24.06.2013 passed by the Motor Accident Claims Tribunal (Aux.), Panchmahals at Godhra in Motor Accident Claim Petition No.1430 of

C/FA/1086/2014 CAV JUDGMENT DATED: 11/03/2022

2006, by which, the Tribunal has partly allowed the claim petition by awarding Rs.1,07,700/- with 9% p.a. interest to be paid to claimants, by holding opponents - driver, owner and insurance company liable, jointly and severally. By the impugned award, the Tribunal has decided two claim petitions i.e. MACP No.1145 of 2006 and 1430 of 2006, together.

2. The facts of the present appeal are that, on 06.05.2006, the claimant was travelling as owner of the goods in the Tempo bearing registration No.GJ-5-V-6626 along with the other labourers and the goods - live stock (goats). Due to the rash and negligent driving the tempo driver, the said tempo got turn turtle near Navjivan Hotel on Bharuch-Vadodara road. The claimant got various injuries. The complaint was lodged before the Nabipur Police Station being FIR - I No.35 of 2006. Since the claimant has suffered serious injuries, he filed claim petition before the Tribunal for compensation. The notices were served to the opponents - driver, owner and insurance company. The insurance company has filed its written statement at Exh.13. The issues were framed by the Tribunal. Oral as well as documentary evidence were led before the Tribunal. After hearing the submissions made by the rival parties, the Tribunal has partly allowed the claim petition(s) and awarded compensation as noted above. Hence, the insurance company has filed these appeals before this Court.

3. Learned advocate Ms. Lilu K. Bhaya for the appellant - Insurance Company has submitted that as the claimant(s) is travelling in the goods vehicle as unauthorised passenger, the Tribunal has committed error in awarding the amount of compensation by holding the appellant - insurance company liable. She has also submitted that at the time of accident, about ten

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persons were travelling in the insured vehicle as against the sitting capacity of one person. She has also submitted that the Tribunal has failed to appreciate the statement given by the driver of the vehicle. She has further submitted that the Tribunal has erred in considering the amount of monthly income Rs.3,000/- in absence of documentary evidence available on record. Therefore, she has submitted that on the ground of unauthorised passenger travelling in the goods vehicle, the present appeal deserves to be allowed. In support of her submissions, she has submitted that our High Court has taken a view in First Appeal No. 710 of 2007 to 713 of 2007 dated 07.04.2014, more particularly Paras : 42 and 44. She has submitted that even in view of the observations made by this Court, no order for pay and recover can be passed in such circumstances, as it can be considered as fundamental breach. She has also relied on the decision of our High Court rendered in First Appeal No.4601 of 2007 and 4602 of 2007 dated 15.06.2017 and has submitted that the insurance company is exonerated for the payment of compensation in that matter. She has further relied on the decision rendered in First Appeal No.4215 of 2008 dated 12.01.2020, and has submitted that in the said decision, the Insurance is exonerated where the victim is found as gratuitous passenger in the goods vehicle and therefore, she has submitted that the appeal(s) may be allowed and the amount of compensation awarded by the Tribunal is required to be interfered with.

4. Per Contra, learned advocate Mr. Hiren Modi for the claimant has submitted that if the Court may peruse the statement of the driver himself, who has stated that some persons were travelling in his truck along with the labourers. He has submitted that the driver has nowhere stated that the persons travelling in the truck are gratuitous passengers and therefore, he has submitted that the case

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of the claimant is supported by the said statement of the driver. Moreover, the insurance company has not examined the driver by putting him in the witness box and therefore, now, the version of the said driver, which is recorded before police, cannot be interpreted in the manner in which the insurance company is trying to portray. On the contrary, the insurance company has failed to prove its case by not examining the witness or by not producing the documentary evidence in support of its case. The insurance policy, which is produced on record, is also in existence on the date of accident which is not disputed by the insurance company. Moreover, he has also pointed out from the deposition of the claimant whereby the insurance company has cross-examined the claimant and he has denied the question that at the time of accident, whether 12-15 persons were sitting in the tempo as well as he has also denied the question as to whether he has paid any fare for travelling in the tempo as passenger. Therefore, the insurance company has failed to prove its defence by adducing any cogent and convincing evidence. Therefore, Mr. Modi, learned advocate for the claimant(s) has relied on the decision of this Court rendered in First Appeal No.3246 of 2005 to First Appeal No.3250 of 2005, whereby this Court, in similar set of circumstances, has found in Paras : 9 and 10 about the liability of the insurance company. He has submitted that another decision of this Court in similar set of circumstances which is decided in First Appeal No.2333 of 2007 dated 31.01.2022, whereby the Hon'ble Court, has after considering the various earlier judgments of this Court as well as Hon'ble Apex Court, decided the appeal by holding that at the time of accident, the deceased was travelling with the goods in the offending vehicle and more specifically, it was observed in the judgment of this Hon'ble Court as well as Hon'ble Apex Court that defence of the insurance company are to be proved by the insurance company, like the claimant. On the face of that averments

C/FA/1086/2014 CAV JUDGMENT DATED: 11/03/2022

made in the claim petition by the persons who are either travelling along with the goods or as a labourer, the onus to disprove this averment lies upon the insurance company and whether the insurance company has discharged its onus that the persons travelling in the tempo are the gratuitous passenger would have gone a long way and in that case, it has failed to do so by the insurance company and has not even brought the driver of the offending truck into the witness box. The burden to prove the breach of terms of contract rests on the party which raise the contentions regarding the same. Therefore, he has submitted that the appeal of the insurance company is required to be dismissed.

5. I have considered the submissions made by the respective parties. I have perused the record and proceedings. I have gone through the impugned judgment and award passed by the Tribunal. I have also considered the pleadings of the parties before the Tribunal. It clearly transpires from the record that the statement given by the driver of the truck before the police authority that at the time of accident, some labourers as well as the owner of the goods - live stock (goats) were sitting in the truck and got injured. Thereafter, nothing has come on record in the defense raised by the insurance company that the claimants were gratuitous passengers travelling in the goods vehicle. The insurance company has not only failed to examine the truck driver as a witness but also not examined any other independent witnesses, who can throw some light about the status of the claimants that in which capacity they where travelling in the goods vehicle. The claimants have proved their case by leading oral evidence where the claimants were cross-examined by the insurance company, but no admission or no material is found from the cross-examination of the claimants which supports the case of the insurance company about the gratuitous passenger. Moreover, if

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we peruse the policy of the insurance company, additional premium was paid, which is undisputed. Therefore, it cannot be said that the claimant was travelling in the vehicle as unauthorised passenger. In view of the above mentioned facts, the judgment cited by Mr. Modi, learned advocate for the claimant(s) rendered in (i) First Appeal No.3246 of 2005 to First Appeal No.3250 of 2005 and (ii) First Appeal No.2333 of 2007 are helpful to the case of the claimant and therefore, no substance is found in the submissions made by Ms. Bhaya, learned advocate for the appellant - insurance company as the insurance company has failed to prove its case by leading cogent and convincing reasons. The appeal therefore deserves to be dismissed.

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

6.1 The present appeal is dismissed with no order as to costs.

6.2 The amount lying with the Tribunal and/or in the FDR, pursuant to the order of this Court if any, shall be disbursed to the claimant, along with accrued interest thereon if any, by account payee cheque, after proper verification and after following due procedure, within a period of six weeks from today.

6.3 Record and proceedings be sent back to the concerned Tribunal, forthwith.

(SANDEEP N. BHATT,J) M.H. DAVE