Gujarat High Court
Malabhai Lalabhai Parmar Since ... vs Dahyabhai Baldevbhai Patel on 14 August, 2025
NEUTRAL CITATION
C/FA/386/2011 JUDGMENT DATED: 14/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 386 of 2011
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J. L. ODEDRA
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Approved for Reporting Yes No
✔
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MALABHAI LALABHAI PARMAR SINCE DECEASED THROUGH LEGAL
HEIRS & ORS.
Versus
DAHYABHAI BALDEVBHAI PATEL & ANR.
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Appearance:
DECEASED LITIGANT for the Appellant(s) No. 1
MS AMRITA AJMERA(5204) for the Appellant(s) No. 1.1,1.2,1.3,1.4
MR. ALKESH N SHAH(3749) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE J. L. ODEDRA
Date : 14/08/2025
ORAL JUDGMENT
1. The present Appeal arises from the impugned
judgment and award dated 17.10.2007 passed in M.A.C.P.
no.5 of 2007, passed by the learned Motor Accident Claim
Tribunal(Auxiliary) Ahmedabad(Rural), Viramgam. Vide the
said judgment and award the Tribunal was pleased to
partially allow the claim petition and had awarded an
amount of Rs.10,07,000/- to the applicants, with the
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interest at the rate of 7.5% per annum against the driver-
cum-owner of the offending vehicle concerned.
2. However, in so far as the Insurance Company (original
claimant no.2), (present respondent no.2) of the said
offending vehicle auto rickshaw no.GJ-2-Y-6913, was
exonerated.
3. It is the exoneration of the Insurance Company by
which the present appellant (original claimant) has been
aggrieved and therefore, he has approached this Court by
way of the present Appeal.
4. If the accident concerned is examined, it appears that
the accident happened on 13.08.2006, whereon as per the
claim of the appellant (original claimant), the original
claimant had boarded the said loading rickshaw with
Bajri(grains) which was to be sold at the market at Kadi. On
the way to the said market, the auto rickshaw met with an
accident. The accident occurred as an animal came on the
road all of a sudden, as a result of which, the driver of the
said auto-rickshaw, driving the vehicle allegedly in a rash
and negligent manner, tried to avoid the animal by making
a sharp turn. The sudden turn resulted in the said vehicle
turning turtle. As a result of the accident, the original
claimant suffered injuries, in respect whereof the impugned
judgment and award came to be passed, wherefrom the
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present Appeal arises.
5. The impugned judgment and award is challenged only
on the ground of exoneration of the Insurance
Company(present respondent no.2). It appears that the
Tribunal, while adjudicating the liability of the Insurance
Company, has recorded that though the pleadings
suggested that the concerned individual was travelling with
Bajri(grains) for selling it in Kadi market, yet in the
corresponding panchnamas dated 14.08.2006 and
18.08.2006, no mention of Bajri(grains) is found. It also
appears that the Tribunal was swayed by the fact that in the
document at Exhibit-24, the injury certificate, records
history pertaining to the accident, but in the said history
too, there is no mention of Bajri(grains). In the Tribunal's
impugned judgment and award, the Tribunal has recorded
that even if it is assumed that indeed a person was
travelling with Bajri(grains) as such, then too, the insurance
policy does not cover such a person travelling with
Bajri(grains), in as much as, no premium on this count has
been paid, and therefore, the risk under the policy is not
covered. The tribunal has relied on the judgment in the case
of New India Insurance Company Limited Vs Asha Rani,
reported in AIR 2003 SC 607, wherein the hon'ble Supreme
Court has held that where a gratuitous passenger is
travelling in a goods vehicle, and if such person suffers an
accident and dies resultantly, then the Insurance Company
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is not liable to pay the compensation to such gratuitous
passenger/s.
6. Heard learned advocates for the parties.
7. Learned advocate for the appellant has submitted that
the judgment of the Tribunal is erroneous. It was submitted
that the consistent version of the original claimant-present
appellant is that he was travelling with Bajri(grains) for the
purpose of selling it in Kadi market. It was also submitted
that the said fact has in terms been admitted by the
opponent no.1, who is the owner of the vehicle concerned. It
was also submitted that even in the FIR, there is a clear
mention of the concerned person, injured applicant,
travelling with the Bajri(grains) for selling it in Kadi market.
It was thus submitted that merely because the panchnama,
which is at the instance of third party, the police personnel
and panchs, does not refer to such Bajri(grains) as they may
not have found to be any significance, it cannot be assumed
that the concerned person was a gratuitous passenger and
that he was not travelling with goods. It was also submitted
that it is the Insurance Company who has to discharge the
burden of proving that the passenger was a gratuitous
passenger when it is the Insurance Company which is
alleging that the concerned person was a gratuitous
passenger. Attention of this Court was drawn to the
deposition of the present appellant (original claimant)
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wherein, it has been categorically stated that the person
was carrying Bajri(grains) in the said vehicle for the purpose
of selling it in Kadi market. It was submitted that however,
in the cross-examination, this aspect namely that the
person was not travelling with Bajri(grains), was not even
remotely disputed. If that was a case, now at this stage,
merely on the strength of alleged pleading by the Insurance
Company, the Insurance Company cannot possibly
successfully contend that the injured person was not a
person travelling with goods. It was submitted that the said
contention is deemed to have not been pressed more
particularly when it does not dispute existence of
Bajri(grains) when cross examining the original
claimant(appellant) and also for the fact no evidence
whatsoever had been led by the Insurance Company to
substantiate its stand that the concerned person was a
gratuitous passenger, not travelling with goods. It was also
submitted that the Insurance Company has not examined
the owner cum driver of the concerned vehicle who was the
only person who could have led evidence or otherwise as to
the factum of the injured claimant-appellant travelling with
Bajri(grains) or not. It was also submitted that even
otherwise, the appellant has also adduced on record Form
no.8-A and 7, extracts which also indicates that he was an
agriculturist. It was also submitted that though the extracts
are in the names of the father and the uncle of the claimant,
it naturally makes him agriculturist, as a son of
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agriculturist, would indeed be an agriculturist. It was thus
submitted that in the circumstances, the Tribunal
concluding that the person is not covered under the said
policy, even when the policy is a package policy, the said
finding ought to be interfered with and exoneration of the
Insurance Company may kindly be quashed and said aside.
8. Though the Rule has been served on the respondent
no.1, who is the owner-cum-driver of the concerned vehicle,
he has chosen not to represent his case before this Court.
9. Learned advocate appearing for the Insurance
Company has contended that the policy indeed does not
cover the accident in as much as the claimant has not
proved that he was indeed travelling with the goods. It was
reiterated that the reasoning of the Tribunal, namely that
the concerned panchnamas dated 14.08.2006 and
18.08.2006 did not show that the vehicle was loaded with
Bajri(grains), are just and proper. It was submitted that if
the vehicle turns turtle and is carrying Bajri(grains), but
naturally some part of the Bajri(grains) would have been
found by the side of the auto rickshaw and in such an
eventuality, the panchnama would have reflected such
Bajri(grains). It was however, submitted that the said story,
that the appellant (original claimant/injured) tavelling with
Bajri(grains) is a concocted story. It was submitted that the
same is more so, for reason that even the history of the
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accident as recorded at Exhibit-24, injury certificate, does
not indicate that the concerned person was travelling with
Bajri(grains) on the vehicle involved in the accident. In the
alternative, it was submitted that even if it is assumed that
the person was carrying goods at the relevant point of time,
then too, as no premium on this count was paid under the
policy, the present appellant cannot be deemed to have been
covered under the policy and that therefore, the exoneration
of the Insurance Company is sustainable. It was therefore,
submitted that the impugned judgment and award may not
be interfered with and may kindly be sustained.
10. Having heard the learned advocates for the respective
parties, this Court proceeds to decide the matter in terms
appearing hereinafter.
11. The only point of determination that arises for
consideration of this Court in the present matter is whether
the Insurance Company, respondent no.2 herein, was
rightly exonerated under the impugned judgment and
award?
12. At the outset, it may be noted that the pleadings and
the examination-in-chief would indicate that the present
appellant(original claimant) was travelling with Bajri(grains)
for the purpose of selling it in Kadi market. The relevant
pleading was found at para-10 of the claim petition, wherein
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it has been stated as follows:-
"અકસ્માત નું ટૂંક માં વર્ણન :- તારીખ ૧૩/૦૮/૨૦૦૬ ના રોજ અમો
અરજદાર અમારા ગામના પટેલ ડાહ્યાભાઈ બળદેવભાઈની ડીઝલ ઓટો
રીક્ષામાં બાજરી લઇ કડી માર્કેટમાં વેચવા સારું જઈ રહ્યા હતા...."
13. The closest english translation of the aforesaid is:
"That on 13.08.2006, I, the claimant, had taken a diesel
auto rickshaw belonging to Patel Dahyabhai Baldevbhai of
our village for the purpose of taking Bajri(grains) to Kadi
market for selling it."
14. Thus, the said factum is specifically pleaded in the
concerned claim petition that indeed the present appellant
was travelling with Bajri(grains) on the fateful day. Even in
affidavit of examination-in-chief, the said fact has been
reiterated. However, on perusal of the cross-examination by
the Insurance Company, it is not even remotely suggested
that no goods were being carried by the concerned
individual in the said auto rickshaw. Therefore, the version,
as suggested by the appellant appears to have been
accepted by the other opponents in the matter. Even
otherwise, in the FIR concerned, again it has been reiterated
that on the said morning of 13.08.2006 at about 8:00 a.m.,
the claimant had boarded the said auto with Bajri(grains)
for the purpose of selling it at kadi market.
15. Indeed, in the panchnamas, two in number, that
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followed on the next day (14.08.2006 at 8:00 to 8:30 a.m.)
and a few days after thereafter (i.e. 18.08.2006, at 10:30 to
11:00 a.m.) there is no mention of Bajri(grains). There could
be a number of explanations for the same, in as much as it
could be that some persons at the behest of the present
claimant could have taken back the Bajri(grains) because
nobody could expect an individual to leave Bajri(grains) on
open road and at the scene of accident, for more than 24
hours. It could also be that for the purpose of criminal
liability, the police may have come to the conclusion that
spilt Bajri(grains) is of no particular significance in a
panchnama and there choose not to refer to it; and, in the
second panchnama, which had happened after almost 5
days of the accident, the Bajri(grains) may have been
scattered across a large cross section looking to vehicular
traffics to be noticeable. But the fact remains that
Bajri(grains) was not specifically mentioned in panchnamas.
16. Similarly the history, given on 13.08.2006, it appears
that the patient himself, in presence of his wife Rupaben,
had given the history. The said document has been perused
by this Court which is at Exhibit-24. In the said document,
the aforesaid factum of history is given as a last minute
addendum, for it is by a lighter pen and in a relatively
smaller script. The same reads:-
H/o given by pt himself B/b Rupa Ben(wife)
H/o VA at
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"સાદરા-કડી રોડ, છકડા માં મુસાફરી કરતા, આ રસ્તા માં ઢોર આવતા છકડો
પલટી ખાઈ ગયો."
The closest english translation of the aforesaid portion
quoted hereinabove is as follows:-
History given by patient himself
B/b Rupa Ben(wife)
H/o vehicular accident at Sadra Kadi road. Whilst travelling
in a chakda, the said vehicle turned turtle, as an animal
interposed ( sic, the vehicle on the road).
17. Thus, only such concise history was recorded, as the
space (in the injury certificate) is permitted. On perusal of
the said document at Exhibit-24, the emphasis is on the
nature of injuries, and there is only one line which indicates
that there is a history of vehicular accident on Sadra Kadi
Road when the concerned victim was travelling in Chakda.
But it would not be of much use to a medical officer,
whether the individual was travelling with goods or
otherwise. Hence, nothing could turn merely on the fact that
the concerned documents namely the injury certificate at
Exhibit-24 and the panchnamas dated 14.08.2006 and
18.08.2006 do not reflect that the concerned individual was
travelling with Bajri(grains). In any case, the learned
advocate for the claimant is right in contending that the
burden of proving that the concerned individual was
travelling with Bajri(grains) rests on the Insurance
Company. It is obvious that the Insurance Company has not
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led any evidence on the aspect to discharge its burden that
the concerned individual was not travelling with any goods.
The owner-cum-driver in the present matter has not even
been summoned. It appears that no application was
preferred by the Insurance Company for summoning the
driver-cum-owner for the purpose of examining him before
the Tribunal. All in all, it appears that no evidence was led
to discharge the said burden. In the circumstances, this
Court is of the view that the applicant has sufficiently
discharged his burden/onus to the effect that the claimant
present appellant was indeed travelling with goods, the
goods being Bajri(grains), for the purpose of selling it at
Kadi market.
18. Another observation that this Court finds difficult to
digest in the impugned judgment and award is that the
Tribunal has stated that even if it was assumed that the
concerned individual was travelling with goods, then too, as
his premium was not acceptable under the said policy, he is
deemed not to have been covered under the policy.
19. In this connection, the judgment in the case of New
India Assurance Company Limited Vs Asha Rani,
reported at AIR 2003 SC 607: (2003) 3 SCC 223 has been
relied upon by the Tribunal. The facts in Asha Rani(supra)
reveal that it examined if Satpal Singh's case AIR 2000 SC
235 was corrected decided or otherwise. Obviously, the
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facts in Satpal Singh(supra) pertained to the law, as it
stood prior to the 1994 amendments to the Motor Vehicles
Act, 1988. By way to the 1994 amendments to the Motor
Vehicles Act, 1988, the phrase "injury to any person" was
substituted by the expression "injury to any person
including owner of the goods or his authorized
representative carried in the vehicle." The meaning thereby,
that that prior to such amendment in 1994, the owner of
the goods or his authorized representative cannot be said to
be included under the statutory coverage under Section 147
of the Motor Vehicles Act,1988. However, post the
amendment, i.e. post 1994, then there is no question of the
owner of goods, having been not covered under Section 147
of the Motor Vehicles Act, 1988. Therefore, the said
judgment in Asha Rani(supra) does not help the case of the
Insurance Company, more so when the accident in the
present matter is post amendment of 1994, the date of the
accident being 13.8.2006.
20. As against this the learned advocate for the claimant
has relied on the judgment in the case of Oriental
Insurance Company Limited Vs Shardaben Widow Of
Hasmukhbhai Vinubhai Parmar And Ors being the
judgment rendered in R/First Appeal no.275 of 2012 dated
29.10.2024. In the said appeal also, the facts were similar to
the matter at hand, in as much as the deceased had seated
in the tempo at the fare of Rs.10. The tempo suffered
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accident and thus, the claim petition. In the said case, the
Insurance Company had not challenged in the cross-
examination of the claimant, the version that he was
travelling with goods, being a bundle of vegetables, which
was said to have been kept aside in the tempo. And
therefore, as the Insurance Company had not discharged its
burden by proving that the person was not travelling with
the goods, the judgment and award making the Insurance
Company liable, was sustained.
21. Thus, in view of the forgoing discussion, it is the firm
view of this Court that owner of goods or his authorized
representative travelling in a transport vehicle would be
covered in Section 147 of the Act, and therefore, the finding
of the Tribunal in the impugned judgment and award to the
effect that as premium has not been paid for the concern
individual, his risk is not covered, cannot be sustained. In
the circumstances, the judgment and award requires to be
interfered with and resultantly the exoneration of the
Insurance Company pronounced by the concerned Motor
Accident Claim Tribunal vide the impugned judgment and
award is done away with and the Insurance Company is
made liable in the facts of the present matter.
22. No arguments has been advanced in respect of the
compensation computed by the Tribunal, this Court is not
inclined to go into the minor integrities of computation of
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this compensation except observing that on the general
observation, this Court finds that the said compensation is
just and adequate. In the circumstances, the appeal is
allowed to the aforesaid extent. The Insurance Company
respondent no.2 having been made liable shall deposit the
amount along with the interest at the rate of 7.5% per
annum from the date of filing of this petition till actual
realization, within a period of 8 weeks from the date of this
receipt copy of this judgment. The same shall forthwith be
disbursed, more so when the claim is of the year 2007.
23. With the aforesaid observations, the First Appeal
stands disposed of as allowed to aforesaid extent. R&P be
sent back to the Tribunal forthwith.
(J. L. ODEDRA, J)
CHIRAG D PAL
