C/FA/4286/2018 JUDGMENT DATED: 10/07/2025 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 4286 of 2018 ========================================================== UNITED INDIA INSURANCE CO LTD Versus MINOR PRAVIN BHAGABHAI MUNGHVA & ANR. ========================================================== Appearance: MR RATHIN P RAVAL(5013) for the Appellant(s) No. 1 MR. HEMAL SHAH(6960) for the Defendant(s) No. 1 RULE SERVED for the Defendant(s) No. 2 ========================================================== CORAM:HONOURABLE MR.JUSTICE J. L. ODEDRA Date : 10/07/2025 ORAL JUDGMENT 1. The present appeal arises from judgment and award dated 05.07.2018 passed in MACP No. 1332 of 2014 by the learned Motor Accident Claims Tribunal (Special), Rajkot. 2. Vide the impugned judgment and award, the applicant was awarded a sum of Rs. 3,15,000/- from the date of filing of the claim petition till actual deposit with interest at the rate of 9% per annum. 3. The manner in which the accident had happened was examined, it appears that the accident had occurred on 06.07.2014. It appears that on the said date, the original opponent no.1 who is the present respondent no.2 was alleged to be driving his motorcycle bearing registration no. GJ-3-CQ-3441 in a rash and negligent manner and had collied the same with the minor C/FA/4286/2018 JUDGMENT DATED: 10/07/2025 Pravin Bhagabhai Munghva and result whereof, the said minor suffered injuries resulting into filing of the original claim petition, as aforesaid. 4. The judgment and award passed by the Tribunal is challenged only on the limited count namely that driver did not have any license whatsoever to drive the said vehicle, and therefore, the insurance company should have been exonerated by the Tribunal. Submitting on the merits of the said contention, it was submitted that it is the duty of the concerned opponent to have submitted the license before the Tribunal and no license was adduced by the driver concerned, the stand of the insurance company that he did not have any license has been proved. 5. It was submitted that once the said license is not adduced by the concerned driver, the burden of the insurance company stands discharged. He has also relied on the judgment in the case of National Insurance Co. Ltd vs Vidhyadhar Mahariwala & Ors reported in AIR 2009 SC 208 wherein it has been held that once it is proved that driver did not have any valid and effective license on the date of occurrence, the insurance company would have no liability. 6. Though, it was so agitated in the appeal that the award passed by the Tribunal is on the exorbitant side, yet at the time of hearing, the learned advocate for the insurance company has not pressed the same and the said part of the appeal need not to be adjudicated. 7. On the other hand, the learned advocate Mr. Hemal Shah C/FA/4286/2018 JUDGMENT DATED: 10/07/2025 appearing for respondent no.1, the original claimant, has submitted that the appellant has far from discharged the burden of proof qua of having to plead and prove that the driver did not have any license to drive the offending vehicle. It was submitted that in this connection, he has relied on the judgment in the case of Fahim Ahmad & Ors Vs. United India Insurance Company Limited and Ors. reported in 2014 (14) SCC 148. It was submitted that it is for the insurance company to plead and prove that indeed the said driver did not have any license. It was submitted that looking to the record of the present proceedings, no effort has been done by the insurance company to even remotely prove that the driver concerned did not have any license. It was thus submitted that once the insurance company does not examine any witness especially calling the RTO officer to the Tribunal, it cannot be stated that the insurance company has discharged its burden, and therefore, the appeal may please be rejected in the facts and circumstances of the present case. 8. Having heard the learned advocates for the respective parties, this Court proceeds to decide the present matter in terms appearing hereinafter. 9. At the outset, it may be noted that the contention of the learned advocate for the original claimant that no evidence has indeed been laid by the insurance company to discharge its burden that the driver did not have any license whatsoever is also apparent from paragraph-13 of the impugned judgment and award. The same reads as follows: C/FA/4286/2018 JUDGMENT DATED: 10/07/2025 “આમ, ઉપરો કત વળતરોની રોકમ મદ્દા ની.૧ મ નિનીનિત થયા મજબ હાલની અકસ્મતની બનીવ મ ટરો સાયાકલની ચાલકની સાપ બ$દરોકરોની કરો$ બનીવ પમ$લ છે$ ત્યારો$ સામવળ ની.૨ નિવમ કપની ધ્વરો એવ તકરોરો લ$વમ આવ$લ છે$ ક$, મ ટરો સાયાકલની ચાલક ડ્રાઈવગ લયાસાન્સા ધરોવત ની હાત, પરોત ત$ બબત$ની ક ઈ પરોવ આ કમ$ રોજ થવ પમ$લ નીથ. તદ ઉપરોત આ કમ$ 8 મ ટરો સાયાકલની ચાલકની$ ક$ અન્યા સાહા$દની$ નિવમ કપની ધ્વરો તપસાવમ આવ$લ નીથ અની$ ત$થ સામવળ અન્યા ક ઈ પરોવ રો$કર્ડ પરો લવ$લ નીથ, હા$ ત્યારો$ કમની સામવળઓ સાયાકત અની$ નિવભકત રોત$ ચા4કવવ જવબદરો થત હા વની ઠરોવ, મદ્દા ની.૨ ની જવબ ત$ રોત$ હાકરોમ આપ, મદ્દા ની.૩ પરોત્વ$ નીચા$ મજબ છે$વટની હાકમ કરોવમ આવ$ છે$.” 10. The closest english translation of the same is as follows : “13.Thus, when the accident has happened on account of complete negligence of the driver of the offending motorcycle, the opponent no.2 – the insurance company has taken a contention that the concerned motorcycle did not possess driving license,but to this effect no evidence has been laid in the present matter. That apart, in this matter, neither the motorcyclist nor any other witness have been examined by the insurance company and, therefore, the opponents have not brought to record any other evidence and thus the opponents are jointly and severally liable to pay a compensation amount and the issue no.2 is thus answered in the affirmative and under the issue no.3, the following order is being passed.” 11. Thus, the Tribunal has in terms recorded that there is no evidence adduced by the insurance company to prove that the driver did not have any license whatsoever. This finding was C/FA/4286/2018 JUDGMENT DATED: 10/07/2025 also brought to the notice of the learned advocate for the insurance company and he too could not dispute the said fact. In the circumstances, this Court is inclined to rely fully on finding at Paragraph-6 of the judgment in the case of Fahim Ahmad (Supra). The said paragraph reads as follows: “6. Although the plea of breach of the conditions of policy was raised before the Tribunal, yet neither any issue was framed nor was any evidence led to prove the same. In our opinion, it was mandatory for Respondent 1 Insurance Company not only to plead the said breach, but also substantiate the same by adducing positive evidence in respect of the same. In the absence of any such evidence, it cannot be presumed that there was breach of the conditions of policy. Thus, there was no reason to fasten the said liability of payment of the amount of compensation awarded by the Tribunal on the appellants herein.” 12. Looking to the ratio laid down in the said judgment, it is apparent from Paragraph- 6, it was mandatory for the insurance company to not only plead and prove but also substantiate the same by adducing positive evidence in respect of the same. It may be noted that in the said case also, there was a breach of the condition of the insurance policy in as much as that at the time of the accident, the tractor was carrying sand, and the Hon’ble Supreme Court held that merely because it was alleged to be carrying sand would not mean that the tractor was being used for commercial purpose and consequently there was breach of condition of policy. Page 5 of 6 C/FA/4286/2018 JUDGMENT DATED: 10/07/2025 13. Be that as it may, the ratio is that when the insurance company pleads a breach of condition, it is for the insurance company to plead such breach and also substantiate the same by adducing the positive evidence. Thus, in the present case, the insurance company having failed to substantiate its allegation that the driver does not have any license whatsoever, therefore, the insurance company cannot be stated to have discharge its burden and hence, the present appeal is liable to fail. Accordingly, the appeal fails and, therefore, the appeal is liable to be disposed of as having rejected. 14. The appeal stands hereby disposed of, as aforesaid. 15. The R&P shall forthwith be remitted back to the Tribunal. 16. The amount having been deposited by the insurance company shall forthwith be disbursed amongst the claimants in terms of the original judgment and award. (J. L. ODEDRA, J) JIGAR J RABARI Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: JIGAR RABARI(HCD0067), ENGLISH STENOGRAPHER GRADE TWO CLASS TWO, at High Court of Gujarat on 12/09/2025 12:01:02