Gujarat High Court
National Insurance Company Limited vs Bariya Sanjaykumar Prabhatsinh on 13 January, 2025
NEUTRAL CITATION
C/FA/2648/2012 ORDER DATED: 13/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2648 of 2012
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NATIONAL INSURANCE COMPANY LIMITED
Versus
BARIYA SANJAYKUMAR PRABHATSINH & ORS.
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES for
the Defendant(s) No. 3
MR.HIREN M MODI(3732) for the Defendant(s) No. 3.1,3.2,3.3,3.4,3.5,3.6
RULE SERVED for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 13/01/2025
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 18.04.2012 passed by the Motor Accident
Claims Tribunal, Vadodara in Motor Accident Claim Petition
No.659 of 2005.
2. Brief facts of the case are as under :
2.1 The brief fact of the present appeal is such that on
23.02.2005, the claimant went travelling in Jeep No.GJ-17-C-
1791 and when he reached near the place of accident, the driver
of the jeep i.e. opponent No.1 who was driving the jeep rashly
and negligently lost control over the steering of the jeep and
dashed with the rickshaw coming from opposite side. As a result,
the accident took place and claimant sustained severe injuries.
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C/FA/2648/2012 ORDER DATED: 13/01/2025
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Therefore, offence to that effect is registered before the Halol
Police Station vide FIR being I-C.R.No.47 of 2005. The claimant
has filed aforestated claim petition under Section 166 of the
Motor Vehicle Act, 1988 claiming compensation of
Rs.6,00,000/-. The learned Tribunal vide impugned judgment
and award dated 18.04.2012 has granted compensation to the
tune of Rs.5,95,800/-. Hence, the present appeal.
3. Based upon the contents made in the FIR at Exhibit-28, it
is argued by learned advocate Mr.Vibhuti Nanavati that the
claimant was travelling in the jeep as fare paying passenger yet
learned Tribunal erred in not exonerating the Insurance
Company from liability to pay the compensation as there was a
serious breach of the terms and conditions of the policy. Upon
above submissions, he submits to allow this appeal and to
exonerate the Insurance Company.
4. Per contra, learned advocate Mr.Hiren Modi appearing for
the claimant submits that there is no evidence produced by the
Insurance Company to prove the contention that the claimant
was travelling in the jeep as fare paying passenger. He would
further submit that merely a statement in the FIR would not
constitute as evidence, the contents of the FIR cannot be treated
as evidence and since the Insurance Company failed to establish
that the claimant was travelling as fare paying passenger,
learned Tribunal has rightly fastened liability of the Insurance
Company. Upon above submissions, he would submit to dismiss
this appeal.
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C/FA/2648/2012 ORDER DATED: 13/01/2025
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5. Having heard learned advocates for both sides and
perusing the record and proceedings, what could be noticeable
that the Insurance Company though has raised the contention
that the claimant was travelling in the jeep as fare paying
passenger, Insurance Company did not produce any evidence to
establish the contention raised in the written statement. The
solitary argument of learned advocate Mr.Nanavati is based upon
FIR at Exhibit-33 which states that claimant was travelling as
fare paying passenger. There is no gainsaying that the contents
of the FIR cannot be read as gospel truth. It cannot be
considered as evidence to believe that claimant was travelling in
the jeep as fare paying passenger more particularly in absence of
examining the maker of the FIR. In cross-examination of the
claimant (Exhibit-28, PW-1), it is rather suggested by learned
advocate appearing for the Insurance Company that the
claimant was travelling in the jeep which belongs to his relative.
Such suggestion itself demonstrates that even as per the cross-
examination made by the Insurance Company, the claimant was
not travelling as fare paying passenger.
6. If oral evidence is in contrast to the contents of the FIR, the
oral evidence before the Court has to be believed that is what
held by Hon'ble Supreme Court in case of National Insurance
Company Limited vs. Chamundeshwari and others - 2021
(18) SCC 596. In chief-examination of PW-1 at Exhibit-28, the
claimant stated that he was travelling in the jeep and was
coming back after selling milk. Perusal of the chief and cross-
examination indicates that Insurance Company has hopelessly
failed to prove its defense that the claimant was travelling as fare
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paying passenger. In view of the above, the appeal sans merit
and 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
