HANSABEN PARSOTTAMBHAI SOLANKI vs BHARATBHAI JILUBHAI LALU
- Court
- Gujarat High Court
C/FA/3579/2019 JUDGMENT DATED: 16/10/2026
(GJHC240521302019)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 3579 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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Approved for Reporting Yes No
No
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HANSABEN PARSOTTAMBHAI SOLANKI & ORS.
Versus
BHARATBHAI JILUBHAI LALU & ANR.
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Appearance:
NISHIT A BHALODI(9597) for the Appellant(s) No. 1,2,3,4,5
MS KIRTI S PATHAK(9966) for the Defendant(s) No. 2
RULE SERVED for the Defendant(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 16/10/2026
JUDGMENT
1. Limited issue involved in the appeal is whether principle of
‘pay and recover’ ought to have been invoked after recording
finding that deceased was travelling as gratuitous passenger.
2. The appellants / claimants have preferred this appeal
under section 173 of the Motor Vehicle Act challenging judgment
and award dated 14.05.2019 passed by learned MACT,
Junagadh in MACP No.110 of 2016 by which learned Tribunal
granted total compensation of Rs.7,31,140/- with interest @ 8%
p.a. from the date of filing the claim petition till realization
marking liability upon opponent no.1 to pay compensation and
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let of insurance company from liability to indemnify risk of
owner on the ground that deceased was travelling as gratuitous
passenger in tractor No.GJ-24-B-2330.
3. Facts in brief are as under :-
3.1. On 10.11.2013, deceased Parsottambhai Mohanbhai
Solanki had hired tractor No.GJ-24-B-2330 owned by opponent
no.1 for loading the water melons and other goods He was sitting
in the tractor for looking after his goods. The tractor was driven
by opponent no.1 in rash and negligent manner and when it
reached in between Bhavnath and Bordevi, outskirts area of
Junagadh, deceased Parsottambhai fell from the tractor and
received the fatal injuries and he died during the treatment in
Civil Hospital Jamnagar.
3.2. The claimants claimed that that deceased was 39 year old
and was earning Rs.7,000/- per month by doing business and
maintaining the family. The FIR was lodged before Junagadh
Taluka police station vide Accidental Death Entry No.75 of 2013.
4. Learned Tribunal considering the defense raised by the
insurance company that deceased was travelling as gratuitous
passenger and after assessing the evidence on record computed
the compensation in aforesaid terms and granted the same by
letting of the insurance company to pay the compensation.
5. Being aggrieved claimants have filed present appeal.
6. Heard learned advocate Mr. Bhalodi for appellants and
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learned advocate Ms. Pathak for insurance company.
7. Noticably the facts of the case i.e. travelling of deceased in
a tractor; tractor having no seating capacity and status of the
deceased at the time of traveling in tractor as gratuitous
passengers is unquestionable and not disputed.
8. Learned Tribunal without noticing the judgment of the
Supreme Court in case of Shivaraj v/s. Rajendra & Anr.
[(2018) 10 SCC 432] , exonerated the insurance company from
liability to pay compensation and not invoking principle of pay
and recover as directed by Hon’ble Supreme Court. Relevant
para 10 and 11 reads as under :-
“10. The High Court, however, found in favour of respondent
No.2 (insurer) that the appellant travelled in the tractor as a
passenger which was in breach of the policy condition, for
the tractor was insured for agriculture purposes and not for
carrying goods. The evidence on record unambiguously
pointed out that neither was any trailer insured nor was any
trailer attached to the tractor. Thus, it would follow that the
appellant travelled in the tractor as a passenger, even
though the tractor could accommodate only one person
namely the driver. As a result, the Insurance Company
(respondent No.2) was not liable for the loss or injuries
suffered by the appellant or to indemnify the owner of the
tractor. That conclusion reached by the High Court, in our
opinion, is unexceptionable in the fact situation of the
present case.
11. At the same time, however, in the facts of the present
case the High Court ought to have directed the Insurance
Company to pay the compensation amount to the claimant
(appellant) with liberty to recover the same from the tractor
owner, in view of the consistent view taken in that regard by
this Court in National Insurance Co. Ltd. Vs. Swarna Singh
& Ors.1 , Mangla Ram Vs. Oriental Insurance Co. Ltd.2 , Rani
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& Ors. Vs. National Insurance Co. Ltd. & Ors.3 and
including Manuara Khatun and Others Vs. Rajesh Kumar
Singh And Others.4 In other words, the High Court should
have partly allowed the appeal preferred by the respondent
No.2. The appellant may, therefore, succeed in getting relief
of direction to respondent No.2 Insurance Company to pay
the compensation amount to the 1 (2004) 3 SCC 297 2
(2018) 5 SCC 656 3 2018 (9) SCALE 310 4 (2017) 4 SCC
796 appellant with liberty to recover the same from the
tractor owner (respondent No.1).”
9. Thus aforesaid legal dictum applies to the facts of the
present case. Accordingly, impugned judgment and award is
modified to the extent that Insurance Company shall satisfy the
award at first blush and shall be entitled to recover the said
amount of compensation from Opponent No.1 by executing this
order. Rest of the direction(s) of the Tribunal remain same.
10. Opponent no.2 – Insurance Company shall deposit entire
amount of the compensation including interest and cost before
the learned Tribunal within 9 weeks from today and it shall be
entitled to recover the same from the owner of the vehicle by
executing this judgment and order.
11. Upon deposit of amount, the Tribunal shall disburse the
entire awarded amount including amount lying in the FDR
and/or with the Tribunal, with accrued interest thereon, if any,
to the claimants by account payee cheque / NEFT / RTGS, after
proper verification and after following due procedure.
12. While making the payment, the Tribunal shall deduct
the courts fees, if not paid, in accordance with rules/law.
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13. Registry is directed to return back the R & P, if any, to the
concerned Tribunal forthwith.
(J. C. DOSHI,J)
SATISH
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