Gujarat High Court
New India Assurance Co. Ltd vs Legal Heirs Of Decd. Mohabatsinh ... on 3 April, 2025
NEUTRAL CITATION
C/FA/1301/2012 JUDGMENT DATED: 03/04/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1301 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
================================================================
Approved for Reporting Yes No
✓
================================================================
NEW INDIA ASSURANCE CO. LTD
Versus
LEGAL HEIRS OF DECD. MOHABATSINH KANUBHAI DODIYA & ORS.
================================================================
Appearance:
MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1
MR MTM HAKIM(1190) for the Defendant(s) No. 1,2,3
RULE SERVED for the Defendant(s) No. 4,5
================================================================
CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 03/04/2025
ORAL JUDGMENT
1. This Appeal is filed challenging the judgment and award
dated 01.07.2011 passed by learned Motor Accident Claims
Tribunal (Aux), Surendranagar in Motor Accident Claim
Petition No.366 of 2000.
2. Heard learned advocate Mr. Palak H. Thakkar for
appellant and learned advocate Mr. M.T.M. Hakim for
respondent Nos.1, 2 and 3. Though served, none appeared for
respondent Nos.4 and 5.
NEUTRAL CITATION
C/FA/1301/2012 JUDGMENT DATED: 03/04/2025
undefined
3. The brief facts narrated in the petition are as under:
3.1. On 25.02.2000, deceased-Mohabatsinh Kanubhai was
driving from his work by motorcycle, opponent No.1 came in
Tata-407 Metador bearing Registration No.GJ-13-T-8321
owned by opponent No.2 in full speed and in rash and
negligent manner, and dashed with deceased. Due to vehicular
injuries, deceased succumbed. FIR was lodged against the
driver of Metador. Legal heirs of claimant filed claim petition
claiming compensation of Rs.20,00,000/- against the
opponents. Though served, opponent Nos.1 and 2 did not
contest the claim application. Opponent No.3-Insurance
Company appeared and filed Written Statement at Exhibit-12,
and denied the allegations made in the claim petition. Issues
were framed. Oral deposition of claimant No.1-Lilaba
Mohabatsinh Dodiya was recorded at Exhibit-64. Claimant
produced FIR, Charge-sheet, Post Mortem Report, Copy of
policy, Registration Book of Metador and other documentary
NEUTRAL CITATION
C/FA/1301/2012 JUDGMENT DATED: 03/04/2025
undefined
evidence in support of the claim petition. After considering
evidence on record, learned Tribunal found driver of Metador
negligent to the extent of 80% and motorcyclist i.e. deceased
to the extent of 20%. By partly allowing the claim petition,
learned Tribunal awarded Rs.5,42,110/- (Rs.6,77,642/- less
20% = Rs.5,42,114 which is rounded off to Rs.5,42,110/-) as
compensation to be paid by opponents to the claimants with
9% interest from the date of claim petition till realization.
3.2. Being aggrieved and dissatisfied with the impugned
judgment and award, appellant-Insurance Company has filed
the present First Appeal before this Court.
4. Learned advocate for the appellant has submitted that
learned Tribunal has committed an error in relying upon the
oral deposition of witness Yogeshbhai Baldevbhai Mali
recorded at Exhibit-65. It is further submitted that oral
deposition of the said witness is not reliable as in the criminal
NEUTRAL CITATION
C/FA/1301/2012 JUDGMENT DATED: 03/04/2025
undefined
proceedings, the said witness has given evidence stating that
he is not aware as to which vehicle was involved in the
accident. Despite this fact, learned Tribunal has taken into
consideration the oral deposition of the said witness. It is
further submitted that in FIR also, the description of the
vehicle namely the registration number of the vehicle involved
in the accident is not mentioned. Thus, in absence of any
convincing evidence regarding involvement of the vehicle in
the accident, Insurance Company ought to have been
exonerated from its liability to pay compensation. Except
above submissions, no other submissions have been made by
learned advocate for the appellant.
5. Per contra, learned advocate for the respondent-
claimants has supported the award and has relied upon the
statement of Yogeshbhai Baldevbhai Mali recorded before the
Police Authority on 02.03.2000 (Page No.325 of paper book).
NEUTRAL CITATION
C/FA/1301/2012 JUDGMENT DATED: 03/04/2025
undefined
It is further submitted that in the oral deposition of the said
witness which is recorded in criminal proceedings and
produced at Page No.317 of the paper book, the said witness
has also mentioned about number of Metador as GJ-13-T-
8321. Thus, it is submitted that evidentirary value of the
evidence recorded in criminal proceedings and evidence
recorded in the compensation cases filed under Motor
Vehicles Act, are different and merely because the said
witness has turned hostile in the criminal proceedings,
involvement of the vehicle cannot be doubted. It is further
submitted that Insurance Company despite raising the
contention of non-involvement of the vehicle, did not
investigate into the matter and did not produce any reliable
evidence with regard to non-involvement of the vehicle. No
other submissions are made on behalf of respondent-claimant.
6. I have considered the submissions canvassed by the
learned advocates for parties and have also perused the record
NEUTRAL CITATION
C/FA/1301/2012 JUDGMENT DATED: 03/04/2025
undefined
and proceedings. The only limited question involved in the
present First Appeal is whether Metador bearing Registration
No. GJ-13-T-8321 is involved in the accident or not. It
appears that learned Tribunal has considered the oral
deposition of Yogeshbhai Baldevbhai Mali recorded at
Exhibit-65. As per the deposition of the said witness, on the
date of accident, he was going on the road where the accident
had occurred and he saw deceased lying on the road and one
Model-407 vehicle was found near the body of deceased. The
said witness has also deposed that after informing the family
members of the deceased when he returned at the spot of
accident, he saw the same vehicle lying there and it was
bearing Registration No.GJ-13-T-8321. In the cross-
examination also, the said witness has adhered to the
involvement of the said Metador. Nothing fruitful could be
extracted in the cross-examination of the said witness. On the
contrary, evidence of Yogeshbhai Baldevbhai Mali is a
NEUTRAL CITATION
C/FA/1301/2012 JUDGMENT DATED: 03/04/2025
undefined
conclusive piece of evidence so far as the involvement of the
vehicle is concerned.
7. It would be apt to observe that in such type of cases
where the Insurance Companies are coming out with a case of
non-involvement of the offending vehicle, the burden is upon
the Insurance Companies to disprove the allegations of
involvement of offending vehicles. Insurance Companies are
having Investigating Agencies who investigate claims for the
Insurance Companies and submit their reports. In the present
case, Insurance Company despite the serious allegations of
non-involvement of the vehicle, did not care to get the case
investigated by its Investigating Agency and brought it on
record the report before the learned Tribunal. Appellant also
did not examine any other witness such as the Officer of the
Insurance Company or the Investigator or the owner and
driver of the offending Metador vehicle regarding non-
involvement of the vehicle. A presumption can be drawn in
NEUTRAL CITATION
C/FA/1301/2012 JUDGMENT DATED: 03/04/2025
undefined
absence such evidence that defence raised by the Insurance
Company, is not acceptable. Resultantly, when the Insurance
Company has failed to discharge its burden of proving their
assertions and more particularly, the evidence of eye-witness
is recorded before the learned Tribunal, which states that the
involvement of the vehicle in the occurrence of the accident,
learned Tribunal cannot be said to have committed any error
in arriving at a conclusion regarding involvement of vehicle.
So far as appreciation of oral deposition recorded in criminal
proceedings is concerned, it is needless to observe that
evidence or findings of criminal proceedings with regard to
negligence or involvement of the vehicle in question is
concerned, such evidence is not binding upon learned Tribunal
and learned Tribunal has to independently come to the
conclusion with regard to negligence / involvement of the
vehicle by relying upon evidence placed before him. In the
present case, in absence of any contrary material either placed
NEUTRAL CITATION
C/FA/1301/2012 JUDGMENT DATED: 03/04/2025
undefined
or proved by the appellant, there is no reason to disbelieve /
discard oral deposition of the witness.
8. In the background of the above discussions, I am of the
view that learned Tribunal has not committed any error, and
therefore, no interference is required. Resultantly, the First
Appeal fails and accordingly, the same stands dismissed.
9. Record and proceedings, if any, be sent back to the
concerned learned Tribunal / Court.
(D. M. DESAI,J)
RINKU MALI
