Gujarat High Court
The New India Assurance Company Ltd vs Raval Kailasben Bharatbhai on 19 November, 2025
NEUTRAL CITATION
C/FA/254/2022 JUDGMENT DATED: 19/11/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 254 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Sd/-
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Approved for Reporting Yes No
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THE NEW INDIA ASSURANCE COMPANY LTD
Versus
RAVAL KAILASBEN BHARATBHAI & ORS.
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Appearance:
MR YOGI K GADHIA(5913) for the Appellant(s) No. 1
MR TEJAS P SATTA(3149) for the Defendant(s) No. 1,2,3,4,5
RULE SERVED for the Defendant(s) No. 6,7
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CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 19/11/2025
ORAL JUDGMENT
[1.0] This appeal under Section 173 of the Motor Vehicles Act,
1988 has been preferred by the appellant-original opponent No.3 -
The New India Assurance Company Ltd. against the judgment and
award dated 22.09.2020 passed by the learned Motor Accident
Claims Tribunal (Auxi.), at Visnagar, Mahesana (for short referred to
as "learned Tribunal") in Motor Accident Claim Petition No.1629 of
2012 filed under Section 166 of the Motor Vehicles Act, 1988 (for
short referred to as "MV Act") wherein the learned Tribunal has
partly allowed the claim petition of respondent Nos.1 to 5 herein -
original claimants and awarded compensation of Rs.7,12,680/- with
interest at the rate of 9% per annum from the date of the claim
petition.
[2.0] Heard learned advocates for the respective parties. Though
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served, none appears for respondent Nos.6 and 7.
[3.0] The brief facts of the present claim petition are that the
accident took place on 12.05.2012, when the husband of claimant
No.1 was standing at Kukarwada triangle road bus stand waiting for
the vehicle to go to village Dagavadia and at that time, one
motorcyclist came with his motorcycle bearing No.GJ-2-AR-1315
who allowed the deceased to sit on the motorcycle and when the
said motorcycle reached Dagavadia road, one Tractor bearing
registration No.GJ-2-AG-3777 attached with water tank, suddenly
took turn on right side of the road with full speed and in negligent
manner and the motorcycle driver, in order to avoid the accident,
applied brakes of the motorcycle still however, the motorcycle
dashed with the water tank attached with the tractor and the pillion
rider i.e. the husband of claimant No.1 fell down beneath the large
tyre of the tractor and sustained grievous injuries and died on the
spot. The original claimants herein preferred the captioned MACP
claiming compensation of Rs.10 lakh and the learned Tribunal
awarded the aforesaid amount of compensation.
[4.0] Learned advocate Mr. Y.K. Gadhia appearing for the appellant
has assailed the impugned judgment and award mainly on the
ground that the insurance company has obtained the letter from
RTO, Mahesana on 28.05.2024 which is produced at Exh.30 wherein
it is clearly stated that permit and fitness certificate are mandatory
though same were not produced on the record and even though
the learned Tribunal has referred the said document produced at
Exh.30 and saddled the insurance company with the liability to pay
the compensation to the original claimants though there was
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fundamental breach of the policy condition. Hence, insurance
company is not liable to pay the compensation as per the
mandatory provision to have a permit to ply the vehicle under
Section 86 of the MV Act in case the vehicle is being plied without a
permit and as the insurance company is having the defence
available to it under Section 149 of the MV Act and insurance
company cannot be held liable to make the payment and the owner
or driver of the offending vehicle did not even care to attend the
proceeding and they have not produced any evidence and/or any
permit or fitness certificate to show that on the date of accident,
permit and fitness of the offending vehicle subsisted on the fateful
date of accident and learned Tribunal has ignored the said fact and
also requested to pass an order of Pay and Recover from the owner
of the offending vehicle. He has relied on the decision of the
Hon'ble Supreme Court of India in the case of Amrit Paul Singh vs.
Tata AIG General Insurance Company Limited reported in (2018)7
SCC 558. Hence, he has requested to allow the present appeal.
[5.0] Learned advocate Mr. Tejas Satta appearing for the original
claimants has opposed the appeal on the ground that fitness
certificate of vehicle was not required as the tractor was used and
water tanker was attached and merely production of document at
Exh.30 is not a ground to consider the defence as no evidence is led
before the learned Tribunal and learned Tribunal has not
committed any error. Hence, he has requested to dismiss the
present appeal.
[6.0] As the appellant - original opponent No.3 has not challanged
the impugned judgment and award on the ground of quantum of
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compensation or on any other ground but only the question of
permit and fitness certificate being mandatory in case a water
tanker is attached to the tractor is raised, present appeal is
considered in narrow compass.
[7.0] Having heard learned advocate appearing for the respective
parties and perusing the evidence on record, it appears that
present appeal is filed mainly on the ground that on the date of
accident, the offending vehicle was having no any permit or fitness
certificate and due to this reason, the insurance company is not
liable to pay the compensation.
[7.1] The owner and driver of the offending vehicle remained
absent before the learned Tribunal. The original opponent No.3 -
insurance company appeared before the learned Tribunal and filed
written statement and denied the factum of accident and income of
the deceased. No any documentary evidence is led by the appellant
to prove the defence that on the date of accident, there was no
permit or fitness certificate of the offending vehicle. The main
contention of the learned advocate for the appellant - insurance
company is that document produced at Exh.30 is issued by the RTO,
Mahesana wherein it is clearly stated that water tanker is attached
with tractor for which permit and fitness certificate is required and
based on the said document, the insurance company has pleaded
and sought the relief to exonerate the insurance company. It is
needless to say that if any defence is raised in the pleading then, it
is required to be proved as, who asserts or take such defence has to
prove the same. Herein, such defence is not proved by the
appellant or no any evidence is produced. The alleged document
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produced at Exh.30 is addressed to the Investigator, Shri S.C.
Solanki and how such opinion, which is general in nature, is relevant
or admissible to decide the defence of the insurance company is not
made out from the record. Even otherwise, it is needless to say that
based on the application dated 28.05.2014, reply is given by RTO,
Mahesana to Shri S.C. Solanki, Investigator, who is not a party and is
not connected in any manner with the proceeding. Not only that,
even if for the sake of argument it is accepted that he is
Investigator of the insurance company then also, he has not
stepped into the witness box and said defence is not proved by the
insurance company. In such situation, in absence of any reliable
documentary evidence or version, the learned Tribunal has not
committed any error in saddling the insurance company with the
liability to pay the compensation. It was the duty of the insurance
company to bring on record and to prove that the offending vehicle
was not having any permit on the date of accident. Hence, in
absence of such proof, question does not arise to exonerate the
insurance company when fundamental breach of policy condition is
not proved by the insurance company.
[7.2] Herein, the original claimants are third party and have nothing
to do with whether the offending vehicle was having the permit or
fitness certificate at the date and time of the accident. Even, order
of Pay and Recover cannot be passed in view of fundamental
breach of policy condition merely because the insurance company
has asked for it. Hence, the authority relied on by the learned
advocate for the appellant - insurance company would not avail any
assistance to the appellant.
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[7.3] Even, the basic fact as to how the said document at Exh.30 is
relevant and as to whether permit is required for such vehicle,
which is used for agricultural use, is not proved. The tractor is not
used as a transport vehicle. As defined under Section 2(44) of the
MV Act, "tractor" means a motor vehicle which is not itself
constructed to carry any load (other than equipment used for the
purpose of propulsion); but excludes a road-roller. The tractor and
attached trolley, both are same vehicle as tanker was pulled by the
tractor and accident has occurred during the course of tanker being
pulled or driven by the tractor. In view of the above, accident was
caused by the tractor. Hence, there is no need of permit or fitness
of the offending vehicle that too in absence of any proof or
document and hence, question to exonerate the insurance company
does not arise and even when, who asserts has to prove the
defence and merely production of document at Exh.30 is not proof.
It is well settled principle of law that merely exhibiting a document
without proving the contents of the same is not automatic proof of
contents. In view of the above, learned Tribunal has not committed
any error in saddling the appellant - insurance company with the
liability to pay the compensation to the original claimants.
[8.0] In wake of aforesaid conspectus, the impugned
judgment and award passed by the learned Tribunal do not call for
any interference by this Court and the appeal fails and hence,
present First Appeal stands dismissed.
[9.0] 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 after fixing apportionment, if not
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already fixed, by account payee cheque / NEFT / RTGS, after proper
verification and after following due procedure.
[9.1] While making the payment, the Tribunal shall deduct
the courts fees, if not paid, in accordance with rules/law.
[9.2] Record and proceedings, if any, be sent back to the
concerned Tribunal, forthwith.
Sd/-
(HASMUKH D. SUTHAR, J.)
Ajay
