Gujarat High Court
New India Assurance Company Limited vs Heirs And Legal Representative Of ... on 28 June, 2024
NEUTRAL CITATION
C/FA/4858/2010 JUDGMENT DATED: 28/06/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 4858 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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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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NEW INDIA ASSURANCE COMPANY LIMITED
Versus
HEIRS AND LEGAL REPRESENTATIVE OF DECEASED HIMMATBHAI
NANJI & ORS.
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Appearance:
MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1
MR KETAN A DAVE(255) for the Defendant(s) No. 1.1,1.2,1.3,1.4,1.5,1.6
RULE SERVED for the Defendant(s) No. 3
UNSERVED EXPIRED (R) for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 28/06/2024
ORAL JUDGMENT
1. The present appeal is filed by the appellant -
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C/FA/4858/2010 JUDGMENT DATED: 28/06/2024
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Insurance Company under Section 173 of the Motor Vehicles
Act, being aggrieved by and dissatisfied with the judgment
and award dated 31.8.2010 passed by the Motor Accident
Claims Tribunal (Auxillary), Fast Track Court No.1,
Bhavnagar in Motor Accident Claim Petition No.764 of 1998,
by which, the Tribunal has partly allowed the claim petition
by awarding Rs.2,66,800/- with 7.5% p.a. interest to be paid
to claimant/s, by holding opponents liable, jointly and
severally.
2. The facts of the present appeal are as under :
2.1 That on 15.9.1998, the deceased and his brother,
his grandmother-applicant no.7 ando thers were coming from
Mumbai Mumra to Sihor in truck no.GJ.12T.8239 with their
8 to 9 bundles of old clothes and to take care of their
luggages, they were all sitting on the behind side of the
truck and there was heavy rain, the deceased requested his
grandmother to sit in the cabin, at that time at about 3.30
early morning, the opponent no.2 driver of the truck drove
the truck in full speed rashly and negligently and the
deceased was thrown out of the truck, he fell down and the
truck drove on him and on account of the said accident,
serious injuries were caused to the deceased and when he
was taken to hospital for treatment, the doctor declared him
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dead. The claimants filed the claim petition claiming
compensation for the death of the deceased.
2.2 The notices were served to the opponents. Opponent
No.3-insurance company has also filed its written statement
at Exh.12. 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.
2.3 Hence, the insurance company has filed the present
appeal before this Court.
3. Learned advocate for the appellant - Insurance
Company has submitted that as the deceased was travelling
in the goods vehicle as unaouthorized passenger and the old
clothes and luggage cannot be termed as `goods' and they
can be termed as personal goods and therefore the deceased
was not travelling with goods, he was not an owner of the
goods and his risk was not covered under Section 147 of the
MV Act; that the deceased who was an occupant of the
truck, would not become a third party, and if he was not a
third party, his risk was not required to be covered unless
the insured had paid extra premium to cover the such of
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such an occupant, and in the present case, it was not proved
that the insured had paid extra premium to cover the risk of
such an occupant; He, therefore, submitted that the appeal(s)
may be allowed and the amount of compensation awarded by
the Tribunal is required to be interfered with as there is no
negligence on the part of the truck driver.
4. Per Contra, learned advocate for the claimants has
submitted that if the Court may peruse the statement of the
driver himself, who has stated that the deceased along with
other persons were travelling in the truck at the time of
accident. He also submitted that the driver has nowhere
stated that the persons were travelling in the truck as
gratuitous passengers and they were travelling with goods
and, therefore, he has submitted that the case of the
claimant/s is supported by the said statement of the driver,
the FIR and panchanama. The insurance company has not
examined the driver in the witness box and therefore the say
of the driver in the statement is not controverted by his
deposition. 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. On the face of that averment made
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in the claim petition by the person who is either travelling
along with the goods or as a labourer or a passenger, the
onus to disprove this averment lies upon the insurance
company and whether the insurance company has discharged
its onus that the person travelling in the tempo is 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 tempo into the
witness box. The burden to prove the breach of terms of
contract rests on the party which raises 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
tempo before the police authority that at the time of
accident, deceased was owner of the goods-clothes was sitting
in the truck and he died because of the accident. Thereafter,
nothing has come on record in the defense raised by the
insurance company that the claimant was gratuitous
passengers travelling in the goods vehicle. The insurance
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company has not only failed to examine the tempo driver as
a witness but also not examined any other independent
witnesses, who can throw some light about the status of the
deceased that in which capacity he was travelling in the
goods vehicle. The claimant has proved his case by leading
oral evidence where the claimant was cross-examined by the
insurance company, but no admission or no material is found
from the cross-examination of the claimant which supports
the case of the insurance company about the gratuitous
passenger. Therefore, it cannot be said that the deceased
was travelling in the vehicle as unauthorised passenger and
therefore, no substance is found in the submissions made by
learned advocate for the appellant - insurance company in
view of above discussion and as the insurance company has
failed to prove its case by leading cogent and convincing
reasons.
6. The learned Tribunal has considered the affidavit
of the claimant no.1-widow of the deceased, her cross-
examination, the complaint, panchanama of scene of offence,
P.M.report, inquest panchanama, insurance policy of truck,
R.C.book of truck, driving licence of opponent no.2, fitness
certificate of truck, statement of the driver of the truck,
statement of cleaner of the truck, statements of co-passengers
in the truck, and the driver of the truck has not entered
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into the witness box, therefore, adverse inference was drawn
against the truck driver and thereafter held the truck driver
negligent for the accident, which need not be interfered by
way of this appeal. The appeal therefore deserves to be
dismissed.
7. In view of above ,the following order is passed.
7.1 The present appeal is dismissed with no order as to
costs.
7.2 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.
7.3 Record and proceedings be sent back to the concerned
Tribunal, forthwith.
(SANDEEP N. BHATT,J)
SRILATHA
