Gujarat High Court
National Insurance Co Ltd vs Lopaben Kishorbhai Desai on 5 February, 2025
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C/FA/751/2013 ORDER DATED: 05/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 751 of 2013
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NATIONAL INSURANCE CO LTD
Versus
LOPABEN KISHORBHAI DESAI & ORS.
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Appearance:
MS LILU K BHAYA(1705) for the Appellant(s) No. 1
MR.HIREN M MODI(3732) for the Defendant(s) No. 1,2
RULE UNSERVED for the Defendant(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 05/02/2025
ORAL ORDER
1. The present First Appeal, under Section 173 of Motor
Vehicles Act, 1988, is preferred by the appellant - Insurance
Company being aggrieved and dissatisfied with the judgment
and award dated 19.12.2012 passed by the Motor Accident
Claims Tribunal, Valsad in Motor Accident Claim Petition No.180
of 2004.
2. Brief facts of the case are as under:
2.1 The brief fact of the present appeal is such that on
29.06.2000, deceased Kishorkumar was travelling in rickshaw
No.GJ-15-V-6963 towards Vapi and when he reached near the
place of accident, opponent No.1 who was driver of the rickshaw
drove the rickshaw in rash and negligent manner and dashed
with unknown vehicle and due to that rickshaw turned turtle. As
a result, the accident took place and deceased sustained severe
injuries and succumbed to the injuries. The legal heirs of the
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deceased have filed aforestated claim petition under Section 166
of the Motor Vehicle Act, 1988 claiming compensation of
Rs.15,00,000/-. The learned Tribunal vide impugned judgment
and award dated 19.12.2012 has granted compensation to the
tune of Rs.6,89,500/-. Hence, the present appeal.
3. Heard learned advocate Ms.Lilu K. Bhaya appearing for the
appellant - National Insurance Company Limited and learned
advocate Mr.Hiren Modi appearing for the original claimants.
4. Finding fault with the impugned judgment and award
fastening liability of the Insurance Company to pay the
compensation, learned advocate Ms.Bhaya submits that
claimants have produced driving licence at Exhibit-33 which is
of one Mr.Yashvant. She would further submit that at the
relevant time even as per the case of the claimants, opponent
No.1 was riding the rickshaw. She would submit that claimants
since have produced false licence of opponent No.1, finding of
learned Tribunal based upon presumption that opponent No.1
must be riding the vehicle having valid and effective licence is
incorrect finding and it is based upon hypothesis and
assumption. She would further submit that since claimants
failed to prove that opponent No.1 was holding valid and effective
driving licence at the time of accident, fastening of liability upon
the Insurance Company is unsustainable, illegal and against the
evidence on record. Therefore, she urges to defasten the liability
of the Insurance Company by allowing this appeal.
5. Learned advocate Mr.Modi appearing for the claimants on
the other side would argue that even if we believe the argument
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of Insurance Company that licence produced at Exhibit-33 does
not belong to opponent No.1, yet it would not prove that
opponent No.1 was not holding valid licence on the day of
accident. He would further submit that Insurance Company
could have easily led the evidence of RTO or even opponent No.1
to establish that opponent No.1 was not holding valid and
effective driving licence. He would submit that learned Tribunal
observed the said aspect in the impugned judgment and award
while fastening liability upon the Insurance Company and as
such no error has been committed by the learned Tribunal. Upon
above submissions, he would submit to dismiss the appeal.
6. Having heard learned advocates for both sides, at the
outset, it could be noticed that FIR of the accident has been
lodged by opponent No.1. He was rider of the vehicle and he has
mentioned his licence number in the FIR and he also mentioned
which RTO has issued licence to him. This FIR has not been
questioned by the Insurance Company. The contention of
learned advocate Ms.Bhaya for Insurance Company that licence
produced at Exhibit-33 (on page 175 of the record and
proceedings) belongs to one Yashvant Krishnan and therefore, it
could be presumed that opponent No.1 was not holding valid
and effective driving licence on the day of accident. I am failed to
accept the said contention. May be the licence produced at
Exhibit-33 does not belong to the opponent No.1 but it is not the
duty of claimants to lead negative evidence to prove that driver of
offending vehicle was not holding valid and effective driving
licence on the day of accident.
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7. Rule 211 of the Gujarat Motor Vehicle Rules requires the
claimant to file application under Section 166(1) with specific
particulars and in specific form. Rule 211(5) requires the
claimant to file FIR, medical certificates of injury, post mortem or
death certificate and certificate regarding ownership and
insurance, particulars of the vehicle involved in the accident.
Apart from that, no other documentary evidence are required to
be filed by the claimant. If the claimant files any additional
document along with claim petition under Section 166 of the
Motor Vehicle Act, 1988, such documents can neither be treated
as adverse against the claimant nor it absolve the liability of
Insurance Company to lead evidence to prove that driver of the
offending vehicle was not holding valid and effective driving
licence on the day of accident. In the present case, it is
unfortunate scenario that though Insurance Company did not
take pain to lead any kind of evidence to buttress and sustain its
contention, repeatedly takes up the contention that opponent
No.1 was not holding valid and effective driving licence on the
day of accident.
8. What could be noticed that Insurance Company could have
easily secured evidence of RTO, Valsad to prove that number of
licence stated in the FIR does not belong to opponent No.1, but
as said earlier, the Insurance Company except raising contention
did not do anything to establish the defense. In view of above,
according to this Court, the appeal sans merit. Rest of the
finding in the impugned judgment and award has not been
challenged by the Insurance Company and therefore, discussion
on the legality of those finding are not made in this appeal.
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9. For the reasons stated hereinabove, the appeal deserves to
be dismissed. It is, accordingly, dismissed. Registry is directed to
send back the record and proceedings, if any, to the concerned
Tribunal, forthwith.
(J. C. DOSHI, J)
GAURAV J THAKER
