Gujarat High Court
United India Ins. Co. Ltd., Vadodara vs Gujarat State Road Transport ... on 24 January, 2025
NEUTRAL CITATION
C/FA/1599/2011 ORDER DATED: 24/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1599 of 2011
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UNITED INDIA INS. CO. LTD., VADODARA
Versus
GUJARAT STATE ROAD TRANSPORT CORPORATION & ORS.
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Appearance:
MR VIBHUTI NANAVATI(513) for the Appellant(s) No. 1
MR MTM HAKIM(1190) for the Defendant(s) No. 5.1,5.3,5.4,5.5
MR UM SHASTRI(830) for the Defendant(s) No. 3
MS HINA DESAI(1023) for the Defendant(s) No. 1
RULE SERVED for the Defendant(s) No. 5.2,5.6
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 24/01/2025
ORAL ORDER
Being aggrieved by the judgment and award passed by the learned
Motor Accident Claims Tribunal (Aux.) and Addl. District Judge,
Vadodara at Chhotaudepur on 31.12.2010 in MACP No. 48 of 1998, the
appellant - insurance company has preferred this appeal.
2. Heard learned advocates appearing for the respective parties.
3. Learned Advocate Ms.Nanavaty have taken this Court through the
impugned judgment and award, more particularly, paragraph 10 to 12
thereof to submit that deceased was travelling in the tempo No.GJ-17-T-
6695 which is essentially for carrying a goods but it has been used for
carrying the passengers which is the fundamental breach of the terms and
conditions of the policy. She would submit that total 11 persons were
travelling in the goods carrying vehicle and in the accident ten person
have received injuries and one Mr.Karanji lost his life. She would submit
that each claimant/s have come out with the case that they were travelling
with their goods; but it would be unbelievable that each persons were
NEUTRAL CITATION
C/FA/1599/2011 ORDER DATED: 24/01/2025
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carrying goods. In MACP No.2032 of 1997, the claimant has also
claimed that he was travelling with the goods and has been examined at
Exh.109 who has deposed that he has hired the tempo by fixing the fare
amount and thus considering the evidence of this witness, the learned
tribunal committed serious error in believing that deceased was travelling
alongwith the goods in the goods carrying vehicle.
3.1 By making above submissions, she would submit to allow this
appeal.
4. Heard learned Advocate Mr.Oza for Mr. Shashtri, learned advocate
for the driver and owner who supports the impugned judgment and
award. Learned advocate Mr.Hakim would submit that since the claimant
was travelling with their goods which is established from record, the
learned tribunal has rightly believed the said aspect and fastened the
liability upon the insurance company and therefore he would submit to
dismiss this appeal. Learned Advocate Ms.Desai for GSRTC would
submit that since the GSRTC is exonerated she has nothing to say.
5. Having heard the learned advocates appearing for the respective
parties and perused the grounds raised in memo of appeal, and re-
examined the evidence. The sole contention raised in the appeal that
claimant of MACP No.2032 of 1997 has deposed that he was carrying
Maize bags which was found from the goods carrying with him and
therefore tribunal committed error in believing this aspect that said bags
were belong to the deceased and not any other one. The said contention
deserves no consideration on two aspect. Firstly, the pleading made by
the claimant in MACP No.2032 of 1997 is not binding to the claimants of
the present appeal which is under challenge. Secondly, the deposition of
said claimant (Exh.109) has not been tested that at the instance of the
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present claimant. Moreover, finding of the tribunal based upon the
appreciation of evidence that the person travelling in the goods vehicle
were travelling alongwith their Maize products and the same has not been
challenged or rebutted by the insurance company by leading evidence of
driver and owner of the errant vehicle. It could be noticed that driver and
owner of the errant vehicle against whom assertion is made did not enter
into the witness box to contest the claim petition. No adverse oral
evidence has been produced by either of the driver or owner or the insurer
of the vehicle. Thus, this is a fit case to draw adverse presumption
against the driver - opponent of the claim petition. Panchnama (Exh.39)
clearly noted that Maize products were found at the scene of accident.
There is no clear evidence on record to demonstrate that all these Maize
Bags were belong to claimant of MACP No.2032 of 1997. In fact,
evidence of this claimant appears that more than one person borrowed in
the errant vehicle alongwith their goods by fixing fare at Rs.54/- for each
bag. All this aspect is suggestive of the fact that alongwith other persons
deceased was also travelling with his goods in the said vehicle. Thus, the
finding of the tribunal does not call for any interference.
6. For the foregoing reasons, the appeal fails and it is accordingly
dismissed. The impugned judgment and award rendered by the tribunal
is confirmed. The Tribunal shall disburse the entire awarded amount
lying in the FDR and/or with the Tribunal, with accrued interest thereon,
if any, to the claimants, by account payee cheque / NEFT / RTGS, after
proper verification and after following due procedure in the
apportionment if not done.
Record and proceedings be sent back to the concerned Tribunal,
forthwith.
(J. C. DOSHI,J)
sompura
