Gujarat High Court
National Insurance Company Ltd vs Shardaben Dineshbhai Hajariya on 2 April, 2025
NEUTRAL CITATION
C/FA/429/2015 JUDGMENT DATED: 02/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 429 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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NATIONAL INSURANCE COMPANY LTD.
Versus
SHARDABEN DINESHBHAI HAJARIYA & ORS.
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Appearance:
MR GC MAZMUDAR(1193) for the Appellant(s) No. 1
MR HG MAZMUDAR(1194) for the Appellant(s) No. 1
RULE SERVED for the Defendant(s) No. 1,2.1,2.2,2.3,2.4,2.5
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 02/04/2025
ORAL JUDGMENT
1. The present First Appeal is filed by the
appellant-Insurance Company against the judgment and
award dated 22.08.2014 passed by the learned Motor
Accident Claims Tribunal (Aux.), Panchmahals at Godhra
in MACP No.632 of 2006, wherein the learned Tribunal
has partly allowed the claim petition.
NEUTRAL CITATION
C/FA/429/2015 JUDGMENT DATED: 02/04/2025
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2. Heard learned advocate G.C.Mazmudar for the
appellant - Insurance Compnay. Though served, none
appeared for respondents.
3. Brief facts of the case are as under:-
3.1 On 31.03.2004, at about 11.00 a.m., claimant -
Shardaben Dineshbhai Hajariya had loaded food grains in
Tractor bearing registration No.GJ-20B-81 and Trolley
No.GJ-20T-7571 and was going to Limkheda village to sell
the food grains in the said vehicle along with her
daughter. The said tractor was being driven by Opponent
No.1 in rash and negligent manner. When they were
passing by village Dhanpur-Limkheda, opponent No.1, lost
control over vehicle. Resultantly, tractor turned turtle and
because of the said fact, claimant sustained serious
injuries. FIR was lodged by one Pratapbhai Hamirbhai
Hajariya against opponent No.1
NEUTRAL CITATION
C/FA/429/2015 JUDGMENT DATED: 02/04/2025
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3.2 Claimant filed a claim petition under Section
166 of the Motor Vehicles Act claiming compensation of
Rs.5,00,000/- from the opponents. Notices were issued.
Opponents were served except opponent No.1. Opponent
No.1 was deleted as he could not be served. Opponent
No.2 passed away during the pendency of claim petition,
therefore, legal representatives were brought on record and
joined as party Opponents. Opponent No.3 - Insurance
Company appeared and filed Written Statement at Ex.12.
Claimant was examined at Ex.31. Claimant produced
documentary evidence such as copy of complaint,
panchnama, Injury Certificate, Medical Bills, and other
documents. After considering the evidence both oral as
well as documentary, learned Tribunal partly allowed
claim petition by directing opponents to pay compensation
of Rs.4,30,000/- with 9% interest per annum from the date
of petition till realization.
NEUTRAL CITATION
C/FA/429/2015 JUDGMENT DATED: 02/04/2025
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3.3 Being aggrieved and dissatisfied with the
impugned judgment and award, appellant - Insurance
Company is before this Court.
4. Learned advocate for the appellant has submitted
that the claimant was a gratuitous passenger travelling in
tractor-trolley and under such circumstances Insurance
Company cannot be held liable. It is further submitted that
complaint was filed by one of the co-passengers of tractor-
trolley, who has stated that he was carrying food-grains
and that other co-passengers were also sitting in tractor-
trolley. In her examination-in-chief, claimant stated that
she was travelling in tractor-trolley for the purpose of
unloading food-grains. In paragraph 5 of her deposition,
she has stated that due to injuries sustained, she is unable
to perform her tailoring work for 12 months. In view of
these contradictory statements, it cannot be conclusively
said that the claimant was not a gratuitous passengers.
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C/FA/429/2015 JUDGMENT DATED: 02/04/2025
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5. It is further submitted that, during the cross-
examination, claimant has admitted that there were 10-15
other persons in tractor-trolley at the time of accident and
that she did not pay any fare to the driver for journey. It
is therefore, submitted that the owner of vehicle has
committed a breach of terms and conditions of the
insurance policy. Hence, Insurance Company be absolved
from liability to pay compensation. Except above, no other
submissions are canvassed by learned advocate for the
appellant.
6. I have considered the submissions canvassed by
learned advocate for the appellant perused the materials
available on record. Complaint was filed by one
Pratapbhai, who stated that he was travelling in tractor -
trolley along with food-grains and that other passengers
were also sitting in the vehicle. Due to mechanical failure,
driver lost control over tractor-trolley, which overturned.
NEUTRAL CITATION
C/FA/429/2015 JUDGMENT DATED: 02/04/2025
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Complaint indicates that claimant-Shardaben was one of
the passengers, who sustained injury in the accident.
The contention which has been raised by the learned
advocate for the appellant that since there is a
contradiction in the oral deposition of claimant and the
facts stated in the FIR, it is established that claimant was
a gratuitous passenger. However, learned Tribunal has
observed that the driver of offending vehicle was not
examined during the proceedings. The driver of offending
vehicle was the best witness to clarify whether the
claimant had paid any fare for journey or not?. The
burden of establishing that the claimant was a gratuitous
passenger lies with the Insurance Company. The failure on
the part of Insurance Company to discharge the burden
will not disowned the claimants from entitlement of
compensation.
7. The principle of pay and recovery under the
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C/FA/429/2015 JUDGMENT DATED: 02/04/2025
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Motor Vehicles Act, 1988 mandates that an insurance
company must first pay compensation to third party
claimant and subsequently recover the amount from the
owner of the offending vehicle even in cases where there
are violation of policy conditions. This principle is
designed to protect the rights of third party victims in
motor vehicle accident. The principle of pay and recovery
serves as a protective measure for third party claimants in
motor vehicle accidents ensuring they receive compensation
promptly while allowing the insurers to recover the
amount from the vehicle owners in cases of policy
violation.
8. Considering the aforesaid discussions, appellant
shall first pay compensation to the claimant and thereafter
can recover the amount from the owner and driver of
tractor-trolley, if so desirous. Resultantly, First Appeal is
partly allowed.
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C/FA/429/2015 JUDGMENT DATED: 02/04/2025
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11. Record and proceedings, if any, received, be
sent back to the concerned Court/Tribunal.
(D. M. DESAI,J)
MANOJ
