[Cites 10, Cited by 0]
Gujarat High Court
Girdhari Kodandas Gopalani vs New India Assurance Co. Ltd on 2 December, 2025
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C/FA/2663/2006 JUDGMENT DATED: 02/12/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2663 of 2006
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2006
In R/FIRST APPEAL NO. 2663 of 2006
With
CIVIL APPLICATION (FOR ORDERS) NO. 3 of 2006
In R/FIRST APPEAL NO. 2663 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE DEVAN M. DESAI
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Approved for Reporting Yes No
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GIRDHARI KODANDAS GOPALANI
Versus
NEW INDIA ASSURANCE CO. LTD & ANR.
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Appearance:
MR PARTH SALUJA for MR AS VAKIL(962) for the Appellant(s) No. 1
MR HEMANT S SHAH(756) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 02/12/2025
ORAL JUDGMENT
1. This appeal is preferred by the appellant - original plaintiff
under Section 96 of the Code of Civil Procedure, 1908 (for
short, hereinafter referred to as `the Code') challenging the
judgment and decree dated 29.12.2005 (for short, `the
impugned judgment') passed by the learned Additional
Senior Civil Judge, Gandhidham - Kutch in Special Civil Suit
No.47 of 1996 whereby the suit of the present appellant
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was dismissed by learned trial Court.
2. Heard learned advocate Mr. Parth Saluja for learned
advocate Mr. A. S. Vakil for the appellant and learned
advocate Mr. Hemant Shah for respondent No.1 through
Video Conferencing. Though served, none appeared for the
respondent No.2. Perused the record.
3. The facts in brief of the case are as under:
* The appellant - plaintiff being is owner of a motor
vehicle Mini Bus Swaraj Mazda No.GJ-3-T-9580. The said
vehicle was insured with original defendant No.1 - present
respondent No.1 insurance company. The said bus met
with an accident on 21.10.1991 with a tanker bearing
registration No.GJ-12T-5744. FIR was lodged. The vehicle in
question Swaraj Mazda No.GJ-3-T-9580 was totally
damaged in the accident. The plaintiff filed a claim for an
amount of Rs.3,50,000/- before the insurance company.
The insurance company repudiated the claim on 10.6.1993.
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The plaintiff therefore filed a suit for recovery of the
amount against the defendants.
* Defendant No.2 who was the owner of the other
vehicle namely tanker number GJ-12-T-5744, though
served, did not remain present and the suit proceeded ex-
parte against defendant No.2. Defendant No.1 - insurance
company appeared and filed written statement at Exhibit
19 and denied the claim of the plaintiff mainly on the
ground that the required mandatory permit to ply a vehicle
was not there on the date of accident and the list of
passengers which was required to be supplied by the
plaintiff was not supplied. The defendant also alleged that
there is a breach of the terms and conditions of the policy.
* On the basis of pleadings, learned trial Court framed
issues at Exhibit 20. Plaintiff examined himself at Exhibit 71
and produced documentary evidences. Defendant No.1
examined three witnesses namely Hasmukhbhai at Exhibit
128, Yogeshbhai at Exhibit 130 and Anilbhai at Exhibit 133.
Defendant No.1 also produced documentary evidences in
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support of the defense. After considering the evidence on
record, learned trial Court dismissed the suit.
* Being aggrieved and dissatisfied with the impugned
judgment, present appellant has preferred the first appeal.
4. Learned advocate for the appellant has contended that the
learned trial Court has not appreciated the documentary
evidence, more particularly Exhibit 103 which is a
communication issued by RTO, Rajkot to the plaintiff dated
6.5.1992. It is contended that the said letter in clear terms
indicate that the application of plaintiff dated
22/23.11.1990 seeking contract carriage permit of the bus
was granted on 11.10.1991. Therefore, on the date of
accident the plaintiff was having a valid permit to ply a
vehicle. It is further submitted that on 8 th May, 1992,
plaintiff supplied documents to the insurance company for
clearance of the claim. Such documents contained list of
passengers as well as letter from original Regional
Transport Committee, Rajkot regarding permit.
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* The insurance company appointed a surveyor, whose
report is produced at Exhibit 100, also states that vehicle is
in total loss and as per the report of the surveyor, the
market value of the damaged bus was assessed at
Rs.2,49,000/-. The insurance company, thereafter offered
to settle the claim for Rs.2,49,500/-. Despite this, insurance
company did not settle the claim and therefore, plaintiff
was constrained to write a letter dated 30.11.1992 (Exhibit
102) and requested the defendant insurance company to
reimburse the loss sustained and to settle the claim of
Rs.3,50,000/-. The insurance company on 10th June 1993,
(Exh.80) repudiated the claim.
* The decision to repudiate the claim is against the
terms and conditions of the policy and the reasons stated
in the letter are wrong. The plaintiff was acquitted in a
criminal case which was initiated against him under
Sections 471 and 474 of Indian Penal Code, 1860 (for short,
hereinafter referred to as `the IPC'). The said acquittal
order further strengthens the claim of the plaintiff. The
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learned trial Court has failed to appreciate the important
fact that the allegation of a fake permit was not proved and
established in a criminal proceedings against the plaintiff
and therefore plaintiff was acquitted.
* The defense raised by the insurance company that
the permit is fake is therefore nullified by the order of
acquittal in a criminal trial. It is further contended that the
list of passengers which was asked by the insurance
company was duly supplied while communication dated
08.05.1992. Certified copy of list of passengers has nothing
to do with granting or rejection of permit. No other
submissions are made except the above.
5. Per contra, learned advocate for respondent No.1 has
supported the judgment and decree and further contended
that the appeal lacks merit and, therefore, this Court may
dismiss the appeal.
6. It is the case of the insurance company in the written
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statement as well as in oral deposition of Hasmukhbhai
Jansari recorded at Exhibit 128 that the plaintiff has
committed breach of the terms and conditions of the
policy. The plaintiff stated wrong numbers of Chassis and
Engine in the plaint. It is also the case of defendant -
insurance company that the plaintiff at the time of
issuance of policy did not produce permit issued by the
RTO authorities for the inspection. After the intimation of
the accident, the insurance company appointed a surveyor.
As per the survey report, the plaintiff was called upon to
produce documents pertaining to the vehicle in question,
but plaintiff did not produce the same before the surveyor
for inspection. The plaintiff was called upon to produce
road permit and passenger list being carried in the bus at
the time of accident. However, the plaintiff did not produce
the required road permit.
7. The assessment of the damage to the vehicle which was
assessed by surveyor at Rs.2,49,000/- could not be
processed because for settling the claim, defendant -
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insurance company would require road permit issued by
RTO and passenger list travelling in the bus on the date of
accident. Number of letters were issued to the plaintiff to
fulfill the aforesaid requirements, however the plaintiff did
not provide legitimate permit issued by RTO and, therefore,
the claim could not be settled. The sum and substance of
the defense of the insurance company is that the claim has
rightly been repudiated for want of valid permit issued by
RTO at the time of accident.
8. I have considered submissions of the learned advocates for
the respective parties and perused the Record and
Proceedings.
9. The undisputed facts which are recorded by the learned
trial Court in the impugned judgment are that Mini Bus
bearing No.GJ-3-T-9580 is insured with the defendant No.1
- insurance company and on the date of accident there
existed a valid insurance policy. The claim of the plaintiff is
that on 21st October, 1991, the Mini Bus owned by the
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plaintiff met with an accident with the tanker bearing
No.GJ-12-T-5744. The vehicle in question was totally
damaged in the accident. FIR was lodged against the driver
of the bus. A spot survey was carried out by the surveyor
named M/s. Upadhyaya and Associates, Gandhidham. The
survey report of M/s. Upadhyaya & Associates,
Gandhidham dated 25.10.1991 is placed on record.
10. As per the report dated 10 th July, 1992, (Exhibit 100),
market value of the bus was assessed at Rs.2,49,000/-. It is
reported by the surveyor that at the time of the
assessment of loss, RC book, driving license and vehicle
documents were not available for verification. There was
no road permit and passenger list given by the plaintiff to
the said surveyor and, therefore, the surveyor had no
opportunity to verify such documents. On the basis of this
report, the insurance company called upon the plaintiff to
provide valid permit issued by RTO.
11. A reliance has been placed upon by learned advocate for
the appellant on Exhibit 103 which is dated 6.5.1992 and
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submitted that an application seeking contract carriage
permit was submitted by plaintiff on 22/23.11.1990 which
came to be granted by the concerned RTO office on
11.10.1991. However, if the said letter is perused, it states
that the vehicle documents were not submitted within the
time limit for verification and, therefore, application
seeking contract carriage permit came to be rejected on
10.4.1992. The contention that on the date of the accident,
the vehicle was having a valid RTO permit is only a bald
statement and if the plaint is perused, it is not the case of
plaintiff that on the date of accident plaintiff was having a
valid permit to ply the vehicle. The repudiation of the claim
of the plaintiff is on the ground of non-submission of valid
permit issued by RTO at the time of accident. Time and
again, plaintiff was informed to submit a valid permit
issued by RTO but plaintiff has failed to submit a valid
permit issued by RTO. Exhibit 103 cannot be termed as a
valid permit as the said letter does not indicate the chassis
number, engine number or the make of the vehicle.
Exh.103 is a communication issued by RTO to the plaintiff.
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The learned trial Court has observed this lacuna in
evidence and dismissed the suit.
12. The contention raised by learned advocate for the
appellant that by way of a civil application, plaintiff has
sought to produce a document in the nature of a special
permit. It is contended by learned advocate for the
appellant that the said special permit is issued under Rule
70(7)(VIII) of the Gujarat Motor Vehicles Rules, 1989. The
validity of permit was from 20.10.1991 to 23.10.1991. The
said document could not be produced before the learned
trial Court and, therefore, the appellant is seeking
permission to produce this special permit issued on
8.10.1991 by RTO, Rajkot by invoking provision of Order 47
Rule 27 of the CPC.
13. As against this, learned advocate for the insurance
company submitted that the application seeking
permission to produce additional evidence is not
maintainable as the appellant has not fulfilled the basic
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requirements contemplated under Order 41, Rule 27 of the
Code. It is further contended that the special permit which
is placed on record also does not mention the make of the
vehicle, chassis number and engine number and, therefore,
the special permit which is sought to be produced is not a
reliable evidence and, therefore, it cannot be taken on
record.
14. The provision for the production of additional evidence in
Appellate Court is laid down under Order 41, Rule 27 of the
Code which is reproduced hereunder for the sake of
convenience:
"27. Production of Additional Evidence in Appellate
Court.
(1) The parties to an appeal shall not be entitled to
produce additional evidence, whether oral or
documentary, in the Appellate Court, But if-
(a) the Court from whose decree the appeal is
preferred has refused to admit evidence which
ought to have been admitted, or
(aa) the party seeking to produce additional
evidence, establishes that notwithstanding the
exercise of due diligence, such evidence was not
within his knowledge or could not, after the
exercise of due diligence, be produced by him at
the time when the decree appealed against was
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passed, or
(b) the Appellate Court requires any document to
be produced or any witness to be examined to
enable it to pronounce judgment, or for any other
substantial cause, the Appellate Court may allow
such evidence or document to be produced, or
witness to be examined."
15. To invoke the said provision, the party must satisfy that the
documents which are sought to be produced has been
refused by the Court to admit or parties seeking to produce
additional evidence establishes that even after due
diligence, such evidence was not within his knowledge or
could not after due diligence, be produced during the trial.
A power is also given to the Appellate Court who requires
any documents to be produced for a substantial cause.
Before exercising powers under CPC, clause (b) of Sub-Rule
(1) of Rule 27 of Order 41, the Court must be satisfied
prima facie that the documents which are sought to be
produced as additional evidence is so relevant that if those
documents are taken on record and admitted, would
certainly change the complexion of the dispute and the
document/s is such that it would be helpful to the Court in
arriving at a conclusion.
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16. If the document named "Special Permit" is perused, in my
opinion, the same cannot be permitted to be admitted in
evidence for the following reasons:
(a) The "Special Permit" produced by the appellant
along with the application mentions only the name of
plaintiff and the registration mark of the vehicle as
GJ-3-T-9580, but the Special Permit does not mention
the chassis number and engine number of the
vehicle, which are very crucial and important details
to be mentioned in a Special Permit, if at all granted
by the concerned RTO office.
(b) Further, it is not the case of the plaintiff in the
notice correspondence as well as in the pleadings
that on the date of accident, a Special Permit dated
8.10.1991 was granted by the concerned RTO and on
that ground, the repudiation is illegal. On the
contrary, plaintiff has been reiterating in notice as
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well as in other correspondence to clear the claim of
the plaintiff.
17. The appellant, during the course of hearing also could not
point out any valid permit issued by the concerned RTO.
The terms and conditions of the policy are binding to the
parties. It is a contract between insured on one hand and
insurer on the other hand. Any breach committed by the
insured would absolve the insurance company from its
liability to pay claim. In the policy also limits use of the
vehicle. In the policy, Exhibit 98, there is a specific
condition as "TO LIMITATIONS AS TO USE" and knowledge
or limitation as to use. The said clause stipulates that the
insured can use only carriage of passengers in accordance
with the permits (contract carriage or stage carriage)
issued within the meaning of Motor Vehicles Act, 1988.
18. Therefore, the policy in clear terms envisages that the use
of the vehicle is subject to permit issued by the authorities
under the Motor Vehicles Act. The learned trial Court has
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considered a fact that on the date of accident, the plaintiff
was not having a valid RTO permit to ply the vehicle. The
contention of learned advocate for the appellant that
plaintiff was acquitted in criminal trial which were initiated
under Sections 471 and 474 of the IPC, and, therefore, the
allegation of fake RTO permit or not having valid RTO
permits to ply vehicle on the date of accident does not
survive. Such contentions though sounds attractive but has
no legal force. It is well established notion of law that
decision / findings of criminal proceedings cannot be used
as evidence in civil proceedings. Considering the evidence,
the learned trial Court dismissed the suit. In my view, the
findings and reasonings of the learned trial Court are in
consonance with law and as per the evidence on record.
Merely because of second view is possible, the view
adopted by the learned trial Court on the basis of evidence
cannot be replaced by interfering in the findings of fact.
19. It will be in the fitness of things to refer a decision of
Hon'ble Apex Court in the case of Kishan Singh v. Gurpal
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Singh reported in 2010(8) SCC, 775. Relevant
paragraph of the said decision is reproduced hereunder:
"18. Thus, in view of the above, the law on the issue stands
crystallized to the effect that the findings of fact recorded by the
Civil Court do not have any bearing so far as the criminal case is
concerned and vice-versa. Standard of proof is different in civil and
criminal cases. In civil cases it is preponderance of probabilities
while in criminal cases it is proof beyond reasonable doubt. There is
neither any statutory nor any legal principle that findings recorded
by the court either in civil or criminal proceedings shall be binding
between the same parties while dealing with the same subject
matter and both the cases have to be decided on the basis of the
evidence adduced therein. However, there may be cases where the
provisions of Sections 41 to 43 of the Indian Evidence Act, 1872,
dealing with the relevance of previous Judgments in subsequent
cases may be taken into consideration."
20. A criminal case judgment is generally not used as evidence
in a civil case because the two proceedings are separate
with different standards of proof and legal objectives. A
Civil Court is not bound by the outcome of a criminal case
and a Criminal Court is not bound by the outcome of civil
case. Criminal cases require proof beyond a reasonable
doubt while Civil cases require a preponderance of the
evidence. The term judgment is defined in Section 2(9) off
the Code of Civil Procedure, 1908 and denotes the final
determination of the rights and obligations of the parties in
a civil proceedings, setting for the grounds of decision,
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including the facts, issues, evidence, and findings thereon.
Criminal proceedings encompasses the points for
determination, the decision and the reasons for the
decision as stipulated in Section 354 of the Code of
Criminal Procedure, 1973.
21. In view of the totality of the facts and in view of above
discussion, the appeal deserves to be dismissed and
accordingly, it is dismissed. Record & Proceedings be sent
back to the concerned Court forthwith. Interim Relief, if
any, stands vacated forthwith. No order as to costs.
22. Connected civil applications also stand disposed of as they
would not survive in view of dismissal of the main matter.
(D. M. DESAI,J)
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