Gujarat High Court
The New India Assurance Company Ltd vs Babuji Nathaji Rathod on 10 September, 2025
NEUTRAL CITATION
C/FA/605/2022 JUDGMENT DATED: 10/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 605 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE NISHA M. THAKORE --Sd/-
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Approved for Reporting No Yes
No
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THE NEW INDIA ASSURANCE COMPANY LTD
Versus
BABUJI NATHAJI RATHOD & ORS.
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Appearance:
MR KV GADHIA(319) for the Appellant(s) No. 1
NISHIT A BHALODI(9597) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 3
UNSERVED EXPIRED (R) for the Defendant(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 10/09/2025
ORAL JUDGMENT
1. Heard Mr. K. V. Gadhia, learned advocate for the
appellant - insurance company. Mr. Nishit Bhalodi, learned
advocate has entered appearance on behalf of the respondent
no.2.
2. Notice of admission issued upon the respondent no.3 is
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reported to have been duly served, however, no appearance
has been entered. It is further reported that the respondent
no.1, who is a father of the deceased is reported to have
expired.
3. Considering the challenge made and the grounds raised
in the appeal, the Co-ordinate Bench vide order dated 28 th
March, 2022 had admitted the appeal and in an application
for stay preferred by the present appellant, this Court had
stayed the impugned judgment and award on a condition of
deposit of entire award amount with costs and interest with
the concerned Tribunal.
4. On 14th July, 2022, noticing the fact that the entire
amount has been deposited with the concerned Tribunal, the
Co-ordinate Bench had released and disbursed 30% of the
deposited amount in favour of the original claimants and 70%
of the remaining amount was permitted to be invested in the
Fixed Deposit in any Nationalized bank initially for the period
of five years, which was directed to be renewed from time to
time pending the appeal. The interest on such FDR was
directed to be paid periodically to the original claimants.
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5. Considering the limited challenge by the appellant -
insurance company, with the assistance of the learned
advocates for the respective parties on record, the present
appeal is taken-up for final hearing.
6. Learned advocate for the appellant at the outset has
submitted that the original claim proceedings were initiated
by the respondent nos.1 and 2 herein by preferring claim
petition under Section 163A of the Motor Vehicles Act, 1988
praying for compensation of untimely death of their son
Pravin Babuji Rathod, who had in fact join the journey as a
cleaner on the offending truck being registration no.GTY-
5166.
6.1 Learned advocate had further pointed-out that on 19 th
March, 2017, while deceased was on road, the said truck had
collided with an electric pole and due to shock, the deceased
had expired. The original claimants have therefore prayed for
recovery of Rs.5,11,166/- with interest at the rate of 18% and
proportionate costs to be realized from the original
opponents.
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6.2 The claim petition was objected by the insurance
company by filing written statement at Exh.29, wherein they
have not only challenged the facts of the case, the occurrence
of the accident vis-a-vis their liability to pay compensation, the
specific defence of the driver of the truck not having valid and
effective driving license was raised. By raising such
contentions, the insurance company has prayed for dismissal
of the claim petition.
6.3 Noticing the overall pleadings on record, the Tribunal
has framed issues. While considering the issue no.1, which
pertains to the occurrence of accident vis-a-vis the cause of
death of the deceased due to accident in which the vehicle of
the opponent was involved, the Tribunal has mainly dealt with
the contention about the existence of the valid and effective
driving licence, however, the Tribunal has failed to consider
the issue with regard to the involvement of the vehicle and the
death of the deceased being caused due to use of offending
vehicle. Learned advocate had therefore urged to quash and
set aside the impugned judgment and award and to exonerate
the insurance company from its liability to pay compensation.
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7. Per contra, learned advocate for the respondent no.2 -
original claimant has mainly relied upon the findings and
reasons assigned by the Tribunal. However, he was unable to
contradict the aforesaid submissions made by the learned
advocate for the appellant. Referring to the findings and
reasons assigned by the Tribunal, learned advocate had
submitted that the Tribunal has observed that from the
evidence on record, it has been established that the deceased
has expired out of use of offending truck, he has therefore
urged this Court to not to interfere with the impugned
judgment and award and to dismiss the present appeal.
8. Considering the aforesaid submissions of the learned
advocates for the respective parties, in light of the findings
and reasons assigned by the Tribunal, the only issue which
falls for consideration of this Court in the appeal is as to
whether the Tribunal committed any error while deciding the
issue as to whether the original applicant had proved that the
deceased had died due to accident in which the vehicle of the
original opponent was involved?
9. To appreciate the argument of the learned advocate for
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the appellant, it would be appropriate to revisit the findings
and reasons assigned by the Tribunal while answering the
aforesaid issue no.1.
"...[8] This issue pertains to the negligence of
the offending vehicle and the resultant death of
Pravinbhai Babuji Rathod i.e. the Son of the
applicants. The applicant has filed his affidavit of
examination-in-chief at Ex. 14, and narrated the
facts of the application. The said witness has been
cross-examined by the Learned Advocate of the
Opponent No.2., wherein she has admitted that
she was not present at the time of accident and
therefore she has no personal knowledge about
the accident. She further denied that there was
no negligence on part of the driver of truck no.
GTY 5166 even though she claimed for
compensation against the driver and she has
accepted that FIR was not lodged of the accident
and she also accepted that she has not produced
any evidence that her son was earned Rs.40,000/
p.a by doing labour work. She Denied that her son
was not earned Rs. 40,000/- p.a. but admitted that
she has not produced any proof regarding the age
of her Son and expenses incurred towards the
religious ritual.
In support of his case, the applicant has
produced the copy of panchnamas, P.M. Report,
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Insurance Policy, R.C. Book of offending vehicle,
Fitness report and permit of the truck and other
documents. It is important to note that present
petition has been filed under Section 163(A) of
M.V Act and therefore the question of negligence
is not required to be decided. It is only required
to decide that whether the offending vehicle was
involved in the accident or not. It is also
important to decide that whether death of the
deceased i.e. pravinbhai has been caused due to
use of offending vehicle or not. From the evidence
on record, it is clear that deceased Pravinbhai has
expired out of use of offending Truck No. GTY
5166. The insurance company has taken
contention that driver of the Truck was not
holding driving license and therefore the
Insurance Company is not liable to pay
compensation and therefore Insurance Company
may be exonerated. But the Insurance Company
has not tried to examine the driver of the truck or
the owner of the truck. Of course, the Insurance
Company has submitted an application of
production of driving license and fitness
certificate from Opponent No.1 vide exh. 26, but
the Opponent has not produced any such
documents. But at the same time, the Insurance
Company also could have applied to issue witness
summons to the driver and owner of the truck but
it has not done so. Therefore adverse inference
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has to be drawn against the Insurance Company
and taken into consideration the dispute of the
Insurance Company that the driver of the truck
was not holding driving license to drive the truck.
Hence, I answer the issue No. 1 accordingly in the
affirmative."
10. On close perusal of the aforesaid findings and reasons
assigned by the Tribunal, it is apparent that a general
observation has been made by the Tribunal by holding that
"from the evidence on record, it is clear that the deceased has
expired out of use of offending truck no.GTY 5166." Except
the aforesaid observation, no further discussion with regard to
the evaluation of evidence to arrive at conclusion about the
same having contributed to the death of the deceased has
been drawn by the Tribunal. Noticing the aforesaid findings
and reasons, in the opinion of this Court, this is a fit case of
remand. Let the Tribunal may reconsider and reevaluate the
entire evidence brought on record by the respective parties
and to accordingly decide on the respective issues of
negligency and liability. In absence of any arguments being
advanced with regard to the quantum of compensation, the
same is not required to be reconsidered. The findings and
reasons and ultimate conclusion, which may be drawn by the
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Tribunal on the issue no.1, the quantum of compensation may
be appropriately considered while passing final judgment and
award.
11. With these observations, the First Appeal is allowed. The
matter is remanded back to the Tribunal for the limited
purpose to reexamine the issue no.1 in light of the evidence
brought on record so far.
12. At this stage, learned advocate for the respective parties
have urged this Court to make suitable observation in order to
appreciate their respective case before the Tribunal in case if
the parties are required to led further evidence, they may be
permitted to do so.
13. Noticing the aforesaid submissions of the learned
advocate for the respective parties, since the matter is
remanded back to the Tribunal to reexamine the issue no.1 in
light of the evidence brought on record, it shall be open for
the respective parties to led further evidence in case if
required before the Tribunal to assist the Tribunal on the
aforesaid issue, if the circumstances demands so.
14. With these observations, First Appeal stands disposed
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of. Needless to clarify that the ultimate conclusion of the
Tribunal on issue no.1 shall govern the further directions of
the quantum of compensation, which is otherwise not
disturbed by this Court in the present appeal. Since the
accident relates to the year 2017 and the matter is remanded
back to the Tribunal for reconsideration on limited issue, it is
expected from the Tribunal to expedite the hearing of the
proceeding and conclude the same preferably within a period
of three months from the date of receipt of this order.
15. Since the appeal is dismissed and the matter is
remanded back to the Tribunal, 70% of the invested amount
amount in the Fixed Deposit shall continue to be invested in
the cumulative Fixed Deposit and shall be governed by the
outcome of the final judgment and award which may be
passed by the Tribunal.
16. The R. & P. are hereby directed to be send back
forthwith to the concerned Tribunal with the writ of this
order.
Sd/-
(NISHA M. THAKORE, J.)
AMAR RATHOD...sfs/17.09
