IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SECOND APPEAL NO. 290 of 2017 ==========================================================

UTTAR GUJARAT VIJ COMPANY LTD Versus ORIENTAL INSRUANCE COMPANY LTD ==========================================================

Appearance:

MR DIPAK R DAVE(1232) for the Appellant(s) No. 1 MR VC THOMAS(5476) for the Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI Date : 11/11/2025

ORAL ORDER

1. By way of the present Second Appeal under Section 100 of the Civil Procedure Code, 1908, the appellant has challenged the judgment and decree dated 18.05.2017, passed by the First Appellate Court under Section 96 of the Civil Procedure Code, 1908, in Regular Civil Appeal No.15 of 2011, whereby the 8^th Additional District Judge, Banaskantha at Palanpur reversed the judgment and decree dated 17.01.2011 passed by the 4^th Additional Senior Civil Judge, Palanpur in Regular Civil Suit No.19 of 1998 and decreed the suit in favor of the original plaintiff to the effect that the defendant of the suit was directed to pay sum of Rs.1,95,000/- with 9% interest from the date of the suit till final realization.

2. The brief facts of the case are as under :-

2.1 Patel Rameshchandra Karshanlal residing at

81, Ankur Society, Visnagar, who is the owner of the vehicle of Tata Company, Model No.407, bearing Registration No.GJ.3T.5695, had insured the said vehicle for the period from 12.02.1995 to 12.02.1996 with Oriental Insurance Company Limited vide Insurance Policy No.14268/31/95/ 03026/304/300. As per the condition of the said policy, if any damages occur to the vehicle, the Insurance Company owes contractual obligation to pay the said damages. On 22.03.1995, at about 11:15 pm, the said vehicle carrying grass bundles was going on Chhapi Meloj Road, Taluka Vadgam, Dist.Banaskantha. When the said truck was plying on the Chhapi - Meloj road, an electric wirę passing between the Chhapi Jyotinagar Para from the said electric pole, one live wire was loose in lower level dashed with the truck – vehicle, live electric wire thus got sparked, and engulf truck into fire, in which the grass bundles were loaded and therefore, the grass bundles immediately caught fire, consequently, as there was no alternative, the driver of the said truck jumped out of the said truck and the truck turned turtle and the said grass bundles and truck were totally burnt. The Insurance Company since by contract – undertaken to pay the said damages as per the conditions of the Policy and therefore, firstly they had made survey for the damages of truck on 29.08.1995 and as per the Survey, the Insurance Company had paid Rs.1,95,000/-

to the owner of the truck.

3. By order dated 19.12.2017 passed by the Coordinate Bench of this Court, the present Second Appeal was admitted on the following substantial questions of law :-

"(A) Whether the first appellate court was justified in relying upon documents though the same being not exhibited?

(B) Whether the suit of the plaintiff was maintainable in absence of owner / driver of truck concerned ?

(C) Whether the first appellate court was justified in awarding 9% interest ?”

4. Mr.Dipak R.Dave, learned advocate for the appellant, in regards to arguing for the aforesaid substantial questions of law submits that, the appellate Court was absolute unjustified in relying upon the document at Mark 40 / 17, which is not exhibited by the learned Trial Court. Learned advocate Mr.Dipak Dave further takes this Court to the Records & Proceedings to submit that the document at Mark 40/17 is the affidavit of one Mr.Rameshchandra, which cannot be treated as a documentary evidence. Therefore, the statement made on oath by Mr.Rameshchandra cannot have any evidentiary value until it is put to cross examination. Thus, an affidavit at Mark 40/17 cannot be treated as documentary evidence. Thus, he has submitted that the appellate Court to that extent committed serious error, in rel