[Cites 17, Cited by 0]
Gujarat High Court
New India Assurance Co. Ltd vs Nanduben Lalsinh Kaplethiya on 16 January, 2026
NEUTRAL CITATION
C/FA/2657/2009 JUDGMENT DATED: 16/01/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2657 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
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Approved for Reporting Yes No
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NEW INDIA ASSURANCE CO. LTD
Versus
NANDUBEN LALSINH KAPLETHIYA & ORS.
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Appearance:
MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1
MR PARTH S TOLIA(5617) for the Defendant(s) No. 1,2
RULE SERVED for the Defendant(s) No. 3
SHIRISHCHANDRA B TOLIA(8163) for the Defendant(s) No. 1,2
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CORAM:HONOURABLE MR.JUSTICE MOOL CHAND TYAGI
Date : 16/01/2026
ORAL JUDGMENT
1. The captioned appeal has been preferred against the
impugned judgment and award dated 31.05.2005 passed by
the learned Motor Accident Claims Tribunal (Aux.), Navsari in
M.A.C.P. No. 172 of 2001, whereby the learned Tribunal
partly allowed the Claim Petition and awarded a sum of
Rs.7,83,000/- along with interest at the rate of 6% per annum,
from the date of filing of the claim petition till its realization,
as compensation.
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2. The succinct facts, which led to the filing of the
captioned appeal as narrated by the original claimants in their
Claim Petition are summarized as under:-
i. On 20.10.2000, Mr. Daulatsinh Lalsinh Kaplethiya
(hereinafter referred to as the "deceased"), was
travelling in a tempo bearing Registration No. GJ-
15-U-5552 from Kantwa to village Kadoli,
Vantafaliya, along with other occupants. At the
time of the accident, the said tempo was being
driven by original opponent No.1/respondent
No.3 herein, at very excessive speed in a rash and
negligent manner, resultantly, he lost control over
the steering over the said tempo and dashed with
a tree, thereby causing the accident. As a result of
the said vehicular accident, the deceased and
other occupants sustained minor and major
injuries. The deceased sustained grievous injuries
and he succumbed to the said injuries. The FIR
being Cr. No. I-198/2000 came to be registered
before the Navsari Rural Police Station against
the original opponent No.1/respondent No.3
herein - owner and driver of the tempo involved
in the accident.
ii. It is the case of the original claimants that at the
time of the accident, the deceased was aged about
54 years and was working as a primary school
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teacher, thereby earning Rs.11,000/- per month.
The deceased was also doing agricultural work
and earning Rs.25,000/- per annum. It is also the
case of the original claimants that at the time of
the accident, the deceased had left behind his
mother and a daughter. Therefore, the original
claimants preferred the Claim Petition before the
learned Tribunal seeking compensation to the
tune of Rs.8,00,000/-.
iii. Having been served with the notices/summons of
the Claim Petition, Original opponent
No.1/respondent No.3 herein - owner and driver
of the offending tempo, did not file any Written
Statement before the learned Tribunal, however,
Original opponent No.2/appellant herein - New
India Assurance Company Limited filed its
Written Statement, thereby contented that the
Insurance Company is not liable to satisfy the
award, as at the time of the accident the deceased
was travelling as a gratuitous passenger in goods
vehicle.
iv. Having considered the pleadings of the parties
and the material available on record, the learned
Tribunal framed the following issues for
determination:-
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1. Whether it is proved that, the deceased
sustained injuries and died/injured person
sustained injuries, on account of rashness
and negligence in driving on part of the
driver of vehicle involved in the accident?
2. What amount, if any, the claimants are
entitled to by way of compensation and
from which of the opponents ?
3. What order?
v. Having considered the pleadings, evidence on
record and the submissions advanced by the
learned counsels for the respective parties, the
learned Tribunal partly allowed the Claim Petition
and awarded a sum of Rs.7,83,000/- along with
interest at the rate of 6% per annum, from the
date of filing of the claim petition till its
realization, as compensation.
vi. Being aggrieved and dissatisfied with the
impugned judgment and award, the original
opponent No.2/appellant herein - Insurance
Company has preferred the captioned appeal.
3. Heard learned counsels for the parties.
4. Mr. Palak H. Thakkar, learned counsel appearing on
behalf of the appellant - Insurance Company vehemently
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submitted that at the time of the accident, the deceased was
travelling in a goods vehicle as a gratuitous passenger,
therefore, the risk of the deceased was not covered under the
insurance policy. He further submitted that the learned
Tribunal had placed reliance upon the judgment rendered by
the Hon'ble Apex Court in the case of National Insurance
Company Limited Vs. Baljit Kaur & Ors. reported in 2004 (2)
SCC 1. He further submitted that the tempo involved in the
accident is a goods vehicle meant for carrying goods and not
for the purpose of transportation of passengers. He further
submitted that the risk of the deceased victim travelling in
said tempo is not covered under the insurance policy,
therefore, contended that the order of Pay and recovery
cannot be passed. In support of his contentions, learned
counsel for the appellant-Insurance Company placed reliance
upon the judgments rendered by the Hon'ble Apex Court in
the case of Amudhavalli & Ors. v. HDFC Ergo General
Insurance Co. Ltd. & Ors., reported in 2025 INSC 1219, and
Balu Krishna Chavan v. Reliance General Insurance Company
Limited reported in 2022 LiveLaw (SC) 932. Learned counsel
further relied upon the judgments rendered by this High
Court in First Appeal No. 136 of 2018, titled as Pruthavisinh
Takhatsinh Zala & Ors,; First Appeal No. 875 of 2017 titled as
National Insurance Company Limited v. Shamalbhai Kodardas
Khant & Ors.; First Appeal No. 2121 of 2008, titled as United
India Insurance Company Limited v. Lilaben w/o deceased
Bhikhabhai Premjibhai Kathriya & Ors.; First Appeal Nos.
4654 to 4656 of 2009, titled as Punjabhai Jethabhai Parmar v.
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Driver: Suryakant Naranbhai & Ors.; First Appeal No. 3183 of
2011, titled as New India Assurance Company Limited v.
Heirs of deceased Chandulal Lakhmanbhai - Lakhmanbhai
Nagjibhai & Ors.; First Appeal Nos. 4774 to 4777 of 2006,
titled as New India Assurance Company Limited v. Dudabhai
Gagjibhai & Ors.; First Appeal Nos. 2911 to 2913 of 2010,
titled as New India Assurance Company Limited v. Latifsha
Bhachalsha Shaikh & Ors.; and First Appeal Nos. 1571 to
1572 of 2022, titled as New India Assurance Company Limited
v. Heirs and Legal Representatives & Ors. Placing reliance on
the aforesaid judgments, learned counsel for the appellant-
Insurance Company prayed for exoneration of the Insurance
Company from its liability to pay compensation. Therefore, the
impugned judgment and award be modified accordingly.
5. Per contra, Mr. Parth S. Tolia, learned counsel
appearing on behalf of the original claimants vehemently
submitted that there is no infirmity in the impugned judgment
and award. He further submitted that it is not in dispute that
the deceased was travelling in the tempo at the time of the
accident. He contended that the learned Tribunal had rightly
passed the order of Pay and recovery. In support of his
contentions, learned counsel appearing for the original
claimants, placed reliance on the judgments rendered by the
Hon'ble Apex Court in the case of Akula Narayana v. The
Oriental Insurance Company Limited & Anr. (Civil Appeal No.
13509 of 2025, decided on 10.11.2025); Rama Bai v. Amit
Minerals, reported in 2025 SCC OnLine SC 2067; National
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Insurance Company Limited v. Swaran Singh & Ors., reported
in (2004) 1 GLH 691; Shivawwa v. Branch Manager, National
India Insurance Company Limited, reported in (2018) 0 AIJEL-
SC 62005; Shivaraj v. Rajendra, reported in (2018) 0 AIJEL-
SC 62704; Shamanna v. Divisional Manager, The Oriental
Insurance Company Limited, reported in (2018) 0 AIJEL-SC
62604; and V. Renganathan & Anr. v. Branch Manager,
United India Insurance Company Limited & Anr. , reported in
(2022) 0 AIJEL-SC 71043. Learned counsel further placed
reliance on the judgment rendered by the Coordinate Bench of
this High Court in First Appeal No. 3715 of 2024 along with
First Appeal No. 3880 of 2024. titled Reliance General
Insurance Company Limited v. Ranjeetbhai Ishwarbhai
Radhani (Patel) & Ors., decided on 29.07.2025. Placing
reliance upon the aforesaid judgments, learned counsel for
the original claimants vehemently submitted that the learned
Tribunal has not committed any error in passing the order of
pay and recovery, as such, the instant appeal deserves to be
rejected.
6. Having considered the submissions of the learned
counsels for the parties and having perused the material
available on record, it is to be noted that there is no dispute
regarding the manner of occurrence of the accident,
involvement of vehicle, age or income of the deceased, or
dependency of the original claimants. The appellant-
Insurance Company has challenged the impugned judgment
and award against its liability to satisfy the award.
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7. It is not in dispute that at the time of the accident, the
deceased was travelling in a goods vehicle along with other
passengers, as a gratuitous passenger. The learned Tribunal
had placed reliance upon the judgment rendered by the
Hon'ble Apex Court in the case of Baljit Kaur & Ors. (supra)
and directed the respondents jointly and severally to satisfy
the award. The impugned judgment and award has been
challenged by the appellant - Insurance Company against its
liability to satisfy the award.
8. It is the say of the learned counsel for the appellant -
Insurance Company that the deceased was travelling as a
gratuitous passenger in the goods vehicle, therefore, there is
a fundamental breach of the policy conditions. Hence, the
Insurance Company ought to have been absolved to satisfy the
award by the learned Tribunal. Reliance has been placed upon
the judgment rendered by the Hon'ble Apex Court in the case
of Amudhavalli & Ors. (supra), wherein the Hon'ble Apex
Court held that in case of fundamental breach of policy
conditions, the Insurance Company cannot be held liable to
satisfy the award. Similarly, the Division Bench of this High
Court in the case of Pruthavisinh Takhatsinh Zala & Ors.
(supra), Insurance Company was exonerated from satisfying
the award where the deceased was travelling in a goods
vehicle. In the case of Balu Krishna Chavan (supra), wherein
the deceased was travelling in a truck as a gratuitous
passenger, the Hon'ble Apex Court keeping in view the
benevolent object of the Motor Vehicle Act, had passed the
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order of pay and recovery. The Hon'ble Apex Court further
held that on the legal aspect, it is clear that in all cases, such
order of pay and recovery would not arise when the Insurance
Company is not liable but could, in the facts and
circumstances, be considered by this Court to meet the ends
of justice. Further, the Coordinate Bench of this High Court in
the case of Bhikhabhai Premjibhai Kathriya & Ors. (supra),
exonerated the Insurance Company where the victim was
travelling in a goods vehicle. Similarly, in Punjabhai Jethabhai
Parmar (supra), Dubabhai Gagjibhai & Ors. (supra), Latifsha
Bhachalsha Shaikh & Ors. (supra) and New India Assurance
Company Limited v. Heirs and Legal Representatives & Ors.
(supra), the Coordinate Bench of this High Court, had
exonerated the Insurance Company from satisfying the award
in case where the passengers - deceased/injured were
travelling in a goods vehicle.
9. So far as the reliance placed by the learned counsel for
the original claimants upon the judgment rendered by the
Hon'ble Apex Court in the case of Akula Narayana (supra) and
Rama Bai (supra) are concerned, Insurance Company was
absolved from satisfying its liability to pay the compensation,
however, directed the Insurance Company at the first instance
to satisfy the award, and then recover the same from the
owner and driver of the offending vehicle. Similarly, in V.
Renganathan & Anr. (supra) where the deceased was
travelling in a tractor by sitting on the mudguard, and
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Shivaraj (supra) and Shivawwa (supra), where the deceased
was travelling in a tractor, the Hon'ble Apex Court though
exonerated the Insurance Company, directed the Insurance
Company at the first instance to satisfy the award, and
thereafter to recover the same from the owner and driver of
the offending vehicle. Similarly, the Hon'ble Apex Court in the
case of Shamanna (supra) and Swaran Singh (supra), where
the driver of the offending vehicle was not holding a valid and
effective driving license to drive the vehicle, had passed the
order of pay and recovery.
10. Having considered the ratio of the aforesaid judgments,
the legal preposition as emerged from the aforesaid
authoritative pronouncements is that in case of fundamental
breach of policy conditions, the Insurance Company cannot be
held liable to satisfy the award. Now, coming to the case on
hand, it is an undisputed fact that at the time of the accident,
the deceased was travelling as a gratuitous passenger in a
goods vehicle, hence, his claim was not covered under the
insurance policy. The learned Tribunal after considering the
ratio of the judgment rendered by the Hon'ble Apex Court in
the case of Baljit Kaur & Ors. (supra), directed all the
respondents jointly and severally to satisfy the award. It is
settled proposition of law that the Motor Vehicle Act is a
benevolent piece of legislation. In the case on hand, a person
of 54 years had lost his life in the vehicular accident in
question. The said vehicular accident took place on
20.10.2000. Hence, more than 25 years have elapsed after the
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said vehicular accident, however, the original claimants are
still entangled in the legal fight to get the just compensation.
Thus, considering the peculiar facts and circumstances of the
case on hand, directing the appellant - Insurance Company at
this stage to recover the amount of compensation which has
already been deposited with the learned Tribunal or already
disbursed to the original claimants, would further add misery
to the original claimants. Therefore, in the larger interests of
justice, it would be apposite to modify the impugned judgment
and award to the extent that the appellant-Insurance
Company shall not be liable to satisfy the award, however,
any amount already released to the original claimants shall
not be recovered from them, and the amount lying deposited
with the learned Tribunal shall be disbursed to the original
claimants, after due verification, through RTGS/NEFT. The
appellant-Insurance Company is at liberty to recover the
amount already paid or deposited by it before the Tribunal
from the opponent No.1/respondent No.3 herein - owner and
driver of the tempo involved in the accident. The remaining
amount of compensation if any, shall be paid by the opponent
No.1/respondent No.3 herein - owner and driver of the
offending tempo to the original claimants.
11. In view of the above discussion, the impugned judgment
and award is modified to the aforesaid extent, and the
captioned appeal stands partly allowed accordingly.
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12. The Tribunal shall disburse the entire awarded amount
to the original claimants (deducting deficit Court fee, if any),
after due verification.
13. Amount, if any, lying deposited with the Registry of this
Court shall be transmitted to the learned Tribunal concerned
forthwith. Records & Proceedings if any, be sent to the
learned Tribunal concerned. No order as to costs.
14. Pending application, if any, stands disposed of,
accordingly.
(MOOL CHAND TYAGI, J)
ARUN
