SMT. ILABEN VASANTIBHAI PATELversusSMT. SHAKARUBEN WD/O. KALUBHAI SUKKARBHAI AND ORS.

2026:BHC-AS:24501
                Sayyed                                                         15-FA.1212.2019.doc


                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  CIVIL APPELLATE JURISDICTION

                                    FIRST APPEAL NO.1212 OF 2019

                Ilaben Vasantbhai Patel                     ...Appellant
                      Versus
                Shakaruben wd/o Kalubhai Sukkarbhai & Ors.  ...Respondents
                      _____________________________________________________
                Mr. Jeetendra Ranawat i/by Mr. Sudhakar G. Lakhani for the Appellant.
                Mr. Sanskar Marathe (through VC) for Respondent Nos.1 to 4.
                Mr. Amol Gatne for Respondent No.5.
                      _____________________________________________________

                                               CORAM :          JITENDRA JAIN, J.
                                               DATE         :   17 JUNE 2026
                P.C.:

                1.        By consent, taken up for hearing.

                2.        This appeal is filed by the original opponent no.2-vehicle
                owner challenging the order of the Motor Accident Claims Tribunal,
                Dadra and Nagar Haveli, Silvassa (Tribunal) dated 7 October 2016,
                whereby the vehicle owner and the driver have been held jointly and
                severally liable to compensate the original claimants alongwith interest.

                3.        The submission of the vehicle owner is that the insurance
                policy was not brought on record by any of the party. He further
                submitted that since there was a valid policy in existence on the day of
                the accident, the Tribunal should have made insurance company also
                liable. He further submitted that the evidence relied upon by the
                Tribunal with regard to permit is erroneous. He, therefore, pleaded that
                the impugned order is perverse. He further submitted that the Tribunal
                did not give any opportunity to cross-examine the witnesses and closed
                the evidence within one day.



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4.        Heard Mr. Ranawat, learned counsel for the appellant, Mr.
Marathe, learned counsel for respondent nos.1 to 4 and Mr. Gatne,
learned counsel for respondent no.5.

5.        From the order, it is clear that the vehicle owner was
represented by an advocate. If the vehicle owner had any grievance with
respect to the procedure adopted by the Tribunal for denying cross-
examination of any of the witness, then they should have approached the
Court immediately. There is nothing on record to show that the advocate
for opponent no.2 was expressly denied any opportunity for cross-
examining any witness. But on the contrary, the document shows that
the advocate for respondent no.2 was not present, when the evidence
was being led. Therefore, on these facts, the approach adopted by the
Tribunal cannot be faulted. If at all, the vehicle owner has any grievance
against the person whom he had engaged, the remedy lies somewhere
else and not in these proceedings.

6.        The Tribunal in paragraph 14 has given detailed reasons as to
why the “pay and recover” order is not being passed. Merely because, the
policy is in existence it does not mean that the vehicle owner should not
comply with the terms and conditions of the policy and can plead that
even if there is any violation, the insurance company should be made
liable. The Tribunal in the said paragraph has come to a finding that
there has been breach of terms and conditions of the policy and,
therefore, the insurance company cannot be made liable. These findings
of fact have not been rebutted by any material before me nor this
findings can be treated as perverse. Therefore, no fault can be found in
the Tribunal’s order in not accepting the plea for a pay and recover order.

7.        With respect to whether the deceased was negligent or not, the
Tribunal in paragraph 9 has exhaustively dealt with the factual position




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                             Sayyed                                                         15-FA.1212.2019.doc


                             and evidence on record and has given a finding that the driver of the
                             vehicle had every opportunity to see the pedestrian and, therefore, the
                             accident could have been avoided. Even these findings of facts have not
                             been rebutted. Therefore, the pedestrian deceased cannot be said to be
                             negligent based on the facts recorded in paragraph 9 of the Tribunal.

                             8.        It is also important to note that the driver of the vehicle
                             involved in the accident was not examined, nor did he give any evidence.
                             Similarly, the vehicle owner also did not lead any evidence. If the driver,
                             who was the best person to lead evidence in support of the submission of
                             the vehicle owner was examined then the submission made by the
                             vehicle owner could have been considered. If the best person fails to lead
                             any evidence, then he cannot be permitted to contend that there is no
                             negligence on the part of the driver or the vehicle owner and that the
                             negligence, if any, is of the pedestrian or in the alternative, the insurance
                             company should be called upon to pay.

                             9.        In my view, the order of the Tribunal is well reasoned based on
                             unrebuttable facts and in the absence of any evidence led by the vehicle
                             owner or the driver of the offending vehicle, no fault can be found in the
                             impugned order.

                             10.       The original claimants are entitled to the decretal amount.

                             11.       Statutory deposit of Rs.25,000/- to be transferred to the
                             concerned Tribunal and the parties would be at liberty to make an
                             application for refund of the same. The Tribunal to make the payment of
                             the decretal amount, if not made, to the original claimants within twelve
                             weeks from today.

                             12.       Appeal is dismissed.


                                                                          [ JITENDRA JAIN, J. ]

Signed by: Sayyed Saeed Ali
Designation: PA To Honourable Judge
Date: 18/06/2026 11:51:53                                        3 of 3