IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/FIRST APPEAL NO. 2100 of 2022 With R/FIRST APPEAL NO. 2101 of 2022 FOR APPROVAL AND SIGNATURE: HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR ========================================================== Approved for Reporting Yes No √ ========================================================== RELIANCE GENERAL INSURANCE CO LTD Versus KAILASHBEN MANCHHARAM GONDALIYA & ORS. ========================================================== Appearance in First Appeal No.2100/2022: MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1 MR NISHIT A BHALODI(9597) for the Defendant(s) No. 1,2,3 RULE SERVED for the Defendant(s) No. 5 UNSERVED EXPIRED (R) for the Defendant(s) No. 4 Appearance in First Appeal No.2101/2022 MR PALAK H THAKKAR(3455) for the Appellant(s) No. 1 MR NISHIT A BHALODI(9597) for the Defendant(s) No. 1,2,3 RULE SERVED for the Defendant(s) No.3-6, 7, 9 ========================================================== CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR Date : 20/01/2026 COMMON ORAL JUDGMENT [1.0] Present two appeals under Section 173 of the Motor Vehicles Act, 1988 (for short referred to as “MV Act”) have been preferred by the appellant – original opponent No.2 – Reliance General Insurance Co. Ltd. against the impugned judgment and awards dated 27.12.2021 passed by the learned Motor Accident Claims Tribunal (Special), Rajkot (for short referred to as “learned Tribunal”) in Motor Accident Claim Petition Nos.1630/2015 and 1631/2015 respectively under Section 166 of the MV Act wherein p. 2 the learned Tribunal has allowed the claim petitions of original claimants. The present appellant – insurance company has challenged the present appeals challenging the liability Hxed on the part of the appellant as the driver of oJending vehicle was not holding valid and eJective license at the time of accident. [2.0] The brief facts of the present appeals are that, on 10.09.2015, while deceased Manchharam Dayaram Gondaliya of MACP No.1630/2015 (First Appeal No.2100/2022) and deceased Moraridas Mayaram Gondaliya of MACP No.1631/2015 (First Appeal No.2101/2022) were on duty as part of their service, at that time, Dumper No.GJ-13W-2875 fell down in stone mine, due to which deceased persons sustained injuries and died. It is pertinent to note that deceased Moraridas was serving as cleaner in the oJending Dumper and deceased Manchharam Gondaliya was driver of the oJending Dumper. Therefore, the original claimants Hled respective claim petitions seeking compensation. Learned Tribunal after appreciating the evidence hold the driver of oJending Dumper to be sole negligent for the accident and directed original opponent Nos.1 and 2 to jointly and severally satisfy the award in favor of the original claimants. [3.0] Learned advocate Mr. Palak Thakkar appearing for the appellant – insurance company has submitted that the learned Tribunal has materially erred in law and facts in holding that the insurance company is jontly and severally liable with owner of the oJeding Dumper to pay the compensation. He has further submitted that the learned Tribunal has committed an error in not p. 3 considering that the deceased driver of oJending vehicle was not holding the driving license and there is not only violation of condition of insurance policy but also the provisions of the MV Act. He has further submitted that application Exh.16 seeking direction to produce the driving license of the deceased was Hled before the learned Tribunal though the claimants failed to produce the same and hence, considering statutory breach of policy condition, insurance company is not liable to satisfy the award. Alternatively, he has submitted to either exonerate the appellant – insurance company or to pass an order of ‘pay and recover’ to protect the interest of the original claimants. As the deceased driver of oJending Dumper was also negligent in causing the accident, insurance company is not liable to pay the compensation and on that ground also, he has requested to allow the present appeals. [4.0] Learned advocate Mr. Nishit Bhalodi appearing for the original claimants in respective appeals has opposed the present appeals by submitting that the learned Tribunal has not committed any error in saddling the insurance company with the liability to pay the compensation as the insurance company failed to prove the breach of policy condition and original claimants are third party and they have nothing to do with breach of any policy condition. Hence, he has requested to dismiss the present appeals. [5.0] Having heard learned advocate appearing for the respective parties and perusing the evidence on record, based on the principle of preponderence of probabilities, learned Tribunal has held the driver of oJending dumper to be negligent for the accident. So far p. 4 as liability part is concerned, insurance company has avoided its liability on the ground that the driver of oJending vehicle was not having any valid or eJective license and vehicle was being plied without any driving license. To prove the said defence, insurance company has not examined any witness. Merely Hling of application calling upon the original claimants to produce the driving license of the deceased driver of oJending vehicle is not enough. Perusing the record and proceedings, it appears that said application is on record wherein order “Hxed for hearing” was passed. Thereafter, neither the learned advocate for the insurance company pressed the said application nor any order is passed nor the learned advocate for the insurance company insisted for hearing of the said application. Not only that, subsequent thereto, to prove the said defence, insurance company has not examined any witness and mere making an averment in the pleading in itself is not a proof. To prove the factum that on the date of accident, the deceased driver of oJending vehicle was not having driving license, claimant No.1 of respective claim petitions have Hled their respective aPdavits at Exh.28 and widow of deceased driver has denied the fact that the alleged accident took place due to negligence of her deceased husband and she has emphatically replied that her husband was having the driving license but same was misplaced during the accident. She has further stated that she does not know as to in which year, her husband got the license and she has not received the copy of the driving license from the RTO oPce. She has repeatedly denied the factum that at the time of accident her husband was not having license. Considering the aforesaid fact, once the witness has denied the fact that her husband was not p. 5 having the driving license, onus shifts on the insurance company to rebut the said evidence either by examining the RTO OPcer or the owner of the oJending vehicle. Herein, the owner of the oJending vehicle was also a party to the claim petitions however, he did not step into the witness box. Since the claimant No.1 has denied that her deceased husband was driving the oJending vehicle without holding driving license, question does not arise to come to conclusion that on the date of accident, the driver of oJending vehicle was not having any valid and eJective license. Hence, learned Tribunal has not committed any error in saddling the insurance company with the liability in absence of examination of either the owner of oJending vehicle or any other witness by the appellant – insurance company. Hence, in absence of any cogent and reliable evidence, learned Tribunal has rightly saddled the appellant – insurance company with the liability to satisfy the award in light of section 149(2) of the MV Act. Further, in view of the judgment of the coordinate Bench of this Court in the case of Valiben Laxmanbhai Thakore (Koli) Wd/O Late Laxmanbhai Ramsinghbhai Thakore (Koli) vs. Kandla Dock Labour Board and Another reported in 2022 (1) GLR 440, the learned Tribunal has not committed any error in saddling the appellant – insurance company with the liability to satisfy the award as additional premium has been paid which factum is clearly revealed from the insurance policy produced at Exh.33. [5.1] So far as alternative prayer of the appellant – insurance company to pass an order of ‘pay and recover’ is concerned, since the insurance company ahs failed to prove fundamental breach of p. 6 policy condition, question does not arise to pass any such order of pay and recover and said argument canvassed by learned advocate appearing for the appellant – insurance company is also not sustainable. [6.0] In wake of aforesaid conspectus, present First Appeals are dismissed. The learned Tribunal is directed to disburse the amount of compensation in favor of the respective original claimants as per the impugned judgment and award with accrued interest thereon, if any, to the original claimants, by account payee cheque / NEFT / RTGS, after proper veriHcation and after following due procedure. [7.0] While making the payment, the Tribunal shall deduct the courts fees, if not paid. [8.0] Record and proceedings, if any, be sent back to the concerned Tribunal, forthwith. Sd/- (HASMUKH D. SUTHAR, J.) Ajay