Back
Gujarat High Court
Judgename :Abhilasha Kumari, Bhawani Singh
NATIONAL INSURANCE CO.LTD - Appellant
Versus
LAKHUBEN PUNABHAI VAGHARI - Respondent
First Appeal 342 of 2006
Decided On : 02/13/2006
Motor accident - Claim petitions - Gratuitous passengers - Liability - Finding as to - Sustainability.
Head Note :
Motor accident - Claim petitions - Gratuitous passengers - Liability - Finding as to - Sustainability - Appellant Insurance Company has denied its liability specifically on the ground that there was no evidence to the effect that the passengers were travelling alongwith their goods and that they were not gratuitous passengers - It is a settled law that all the defences are to be proved by the insurer in claim petition - The onus were, therefore, on appellant to prove the same - In the case it is evident that appellant has failed to lead any evidence in order to prove that deceased were gratuitous passengers and were travelling in an unathorised manner in the truck - In absence of any evidence to that effect Motor Accident Claims Tribunal has rightly come to the conclusion that the deceased persons were travelling in the truck alongwith their goods and they were not gratuitous passengers - There is therefore, no merit in the appeals and same are summarily dismissed
Held :
It is now settled by a catena of decisions of the Supreme Court that all defences are to be proved by the insurer like the appellant. In the face of this specific averment in the claim petitions that the persons were travelling alongwith their goods, the onus to disprove this averment rests upon the appellant Insurance Co. Had the appellant - Insurance Company discharged this onus, it would have gone a long way in proving whether, or not, the deceased persons were gratuitous passengers. Unfortunately, it has failed to do so and has not even brought the driver of the offending truck into the witness box. The burden to prove the breach of term of contract rests squarely on the party which complains of such breach. The test which can be applied in such a situation would be that which party would fail if no evidence is led or the onus is not discharged. [Para 6]
It is evident that the appellant, in the present case has failed to lead any evidence in order to prove that the deceased persons were gratuitous passengers who were travelling in an unauthorised manner in the truck and without any goods. The specific averment in the claim petition that the deceased persons were travelling in the truck alongwith their goods has not been dislodged during the entire proceedings before the M.A.C. Tribunal and in the absence of any evidence or material on record to the contrary, it has rightly been relied upon by the M.A.C. Tribunal to come to the conclusion that the deceased persons were travelling in the truck alongwith their goods and, as such they were not gratuitous passengers. Having failed to discharge the burden of proof in support of this contention, it is not open to the appellant at this stage to try and bring about a re-appraisal of the evidence on facts. There is no reason for this Court to go into the factual aspect of the matter or enter into a re-appraisal of evidence since the impugned judgment and award does not suffer from any illegality or perversity. [Para 7]
Law Laid Down :
All defences in claim petition are to be proved by insurer.
Case Law Analysis :
Narcinva V. Kamat vs. Alfredo Antonio Doe Martins, 1985 ACJ 397 [Para 6];; National Insurance Co. Ltd. vs. Swaran Singh, 2004 ACJ 1 [Para 6].-Relied on
Conclusion :
In absence of any evidence brought on record by appellant it could not be herd that deceased were gratuitous passengers and, therefore, appellant were not liable to party compensation to claimants.
Decided in Favour of :
Respondents
Appeal Dismissed
( 1 ) THROUGH this common judgment, we propose to dispose of five First Appeals, namely, First Appeal Nos. 338, 339, 340, 341 and 342 of 2006, all of which. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Whether Reporters of Local Papers may be allowed to see the judgment" Yes have been filed by the appellant Insurance Company against the common judgment and award of the Motor Accident Claims Tribunal (Main), Ahmedabad (Rural) dated 20. 9. 2005, in M. A. C. P. Nos. 942, 943, 944, 945 and 946 of 1998. Since these appeals, arise out of the same accident, the factual matrix is the same in all the cases.
( 2 ) IT is stated that the accident took place on 19. 5. 1998 at about 1. 30 P. M. A truck no. GJ-4u-9286 was being driven by its driver on the road going from Vataman cross Road to Dholer. As per the case of the claimants, on the aforesaid date all the deceased persons, namely, Ramubhai Punabhai, Savaben Ramubhai, minor Tiniben, rameshbhai Chaturbhai and minor Vijaykumar Rameshbhai, were going alongwith their goods in the aforesaid truck from Vataman Cross Road to their village buranpur. Due to the rash and negligent driving of the driver of the truck, while over taking one tractor going ahead, the truck turned turtle and the accident took place. All the persons who had boarded the truck from Vataman Cross Road came under the truck and sustained severe injuries, which proved to be fatal. Claim petitions were filed by the legal heirs and representatives of the deceased persons. The written statements were filed by the present appellant as the insurer of the offending truck in all the claim petitions, denying the averments and allegations made therein and disclaiming its liability to pay the compensation. Issues were framed by the m. A. C. Tribunal and after examining the oral and documentary evidence on record, the M. A. C. Tribunal came to the conclusion that the driver of the truck was negligent in causing the accident and resultant death of the deceased persons. Further, it was found that the deceased persons were travelling in the truck alongwith their goods and as such, they were not gratuitous passengers. The owner of the truck and the insurance Co. were held to be jointly and severally liable since the truck was found to be insured at the time of the accident. The M. A. C. Tribunal awarded compensation to the tune of Rs. 1,93,000/- in M. A. C. Petition No. 942 of 1998, Rs. 1,93,000/- in m. A. C. Petition No. 943 of 1998, Rs. 1,50,000/- in M. A. C. Petition No. 944 of 1998, rs. 1,93,000/- in M. A. C. Petition No. 945 of 1998 and Rs. 1,50,000/- in m. A. C. Petition No. 946 of 1998.
( 3 ) IN the present appeals, the appellant has taken a number of grounds but only two grounds have been pressed before us in support of the appeals. We have heard learned counsel for the appellant Shri Sunil B. Parikh and have gone through the material on the record. Firstly, it has been contended that the M. A. C. Tribunal erred in appreciating the FIR and panchanama at Exh. 36 and 37 in which it is clearly mentioned that the truck was fully loaded with fertilizer and the persons travelling in the truck were picked up and seated in the truck from the road and therefore, there is no question of their travelling alongwith their goods in the truck. Secondly, it has been contended that the M. A. C. Tribunal has erred in appreciating the fact that there was no specific evidence to the effect that the passengers were travelling alongwith their goods, as they had not hired the entire truck. There was no documentary evidence such as receipt of goods, consignment note, receipt of fare etc. and therefore, the conclusion arrived at that the deceased persons were traveling in the truck alongwith their goods, and were not gratuitous passengers, is not supported by any evidence.
( 4 ) IN the claim petitions filed by the claimants it has been specifically stated that on 19. 5. 98 the
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
