ORDER : HASMUKH D. SUTHAR, J. [1.0] This appeal under Section 173 of the Motor Vehicles Act, 1988 has been preferred by the appellant–original opponent No.3 – The New India Assurance Company Ltd. against the judgment and award dated 04.09.2025 passed by the learned Motor Accident Claims Tribunal (Auxi.), at Deodar, District Banaskantha (for short referred to as “learned Tribunal”) in Motor Accident Claim Petition No.21 of 2023 filed under Section 166 of the Motor Vehicles Act, 1988 (for short referred to as “MV Act”) whereby the learned Tribunal has partly allowed the claim petition of respondent Nos.3 and 4 herein – original claimants and awarded compensation of Rs.56,81,160/- with interest at the rate of 7.5% per annum from the date of the claim petition. [2.0] The brief facts of the present claim petition are that the accident took place on 26.11.2023, when Hiralben (hereinafter referred to as “deceased”) was travelling as a pillion rider on Motorcycle No.GJ-01-LU-7832 being driven by her relative namely Hiren Parmar and while they were going from Shahpur to Bopal on the said motorcycle being driven at moderate speed on the correct side of the road and on reaching near Shivranjani Cross Roads, Satellite Road, Hirenbhai Parmar stopped the motorcycle on red signal and at that time, original opponent No.1 i.e. driver of Luxury Bus No.NL-01-B-2196 (hereinafter referred to as “offending vehicle”) came from behind driving the luxury bus in rash and negligent manner and dashed with the stationary motorcycle on which the deceased was sitting as a pillion rider and due to impact, the deceased fell down and sustained severe injuries on her head and face and died on the spot. Pursuant thereto, an FIR came to be filed against the driver namely Gambhirsinh Ishwarsinh Sisodiya of offending luxury bus for the offence under Sections 177, 184 and 185 of the MV Act and section 66(1)(b) of the Gujarat Prohibition Act. The original claimants preferred the captioned MACP claiming compensation of Rs.62,25,000/- and the learned Tribunal awarded the aforesaid amount of compensation. [3.0] Learned advocate Mr. The original claimants preferred the captioned MACP claiming compensation of Rs.62,25,000/- and the learned Tribunal awarded the aforesaid amount of compensation. [3.0] Learned advocate Mr. Vibhuti Nanavati appearing for the appellant has strenuously argued that once the charge-sheet is filed and driver of offending vehicle was in drunken condition and under the influence of alcohol, there was a fundamental breach of policy condition and therefore, insurance company is not liable to satisfy the award and in such circumstances, learned Tribunal has committed an error in saddling the insurance company with the liability and in the alternative, learned Tribunal ought to have passed an order of ‘Pay and Recover’. He has further submitted that charge-sheet (Exh.29) clearly reveals that driver of the offending vehicle is charged with section 185 of the MV Act read with Section 66(1)(b) of the Gujarat Prohibition Act which demonstrates that driver of offending vehicle was driving the vehicle under the influence of alcohol and therefore, he has requested to admit the appeal. [4.0] As the appellant – original opponent No.3 has not challanged the impugned judgment and award on the ground of quantum of compensation or negligence or on any other ground but challenged the award only on the sole contention that the driver of offending vehicle was under the influence of alcohol at the time of driving the offending vehicle. As no any other ground is raised qua quantum and negligence on the part of the offending vehicle and even otherwise, as the insurance policy was in effect and coverage of insurance is also not in dispute, present appeal is considered in narrow compass. [5.0] Having heard learned advocate appearing for the appellant, a pertinent query was posed to the learned advocate for the appellant as to what kind of defence was raised before the learned Tribunal to prove the contention that the driver of offending vehicle was driving the offending vehicle under the influence of alcohol, he has fairly admitted that no specific defence has been put forward before the learned Tribunal even from the bare perusal of the written statement submitted before the learned Tribunal. [5.1] It is needless to say that if any defence is raised in the pleading then, it is required to be proved by the party as, who asserts or takes such defence has to prove the same. [5.1] It is needless to say that if any defence is raised in the pleading then, it is required to be proved by the party as, who asserts or takes such defence has to prove the same. Herein, such defence is not proved by the appellant or no any evidence in that regard is produced. Merely to make submission in oral argument based on the charge-sheet that the driver was under the influence of alcohol is not a conclusive proof. Even, pleading itself is not a proof of evidence and merely production of document does not amount to conclusive proof to draw the presumption that the driver of offending vehicle was under the influence of alcohol. Even, final outcome of criminal proceeding is also not placed before the learned Tribunal and no any material to consider the said defence being led. Hence, such additional ground at the stage of appeal is not permissible. [5.2] Further, merely elying on charge-sheet which merely denotes section 66(1)(b) of the Gujarat Prohibition Act which itself is not a proof or enough to draw the presumption that the driver of offending vehicle was under the influence of alcohol. When specific defence is raised by the insurance company, it was the onus of insurance company to prove the said defence. Even, the learned Tribunal has to consider the evidence led before the Tribunal not on the basis of evidence or material led in the criminal trial. In this regard, reference is required to be made to the decision of Hon’ble Supreme Court in the case of Jana Bai Wd/o. Dinkarrao Ghorpade & Ors. vs. ICICI Lombard Insurance Company Ltd. reported in (2012)10 SCC 512, wherein the Hon’ble Supreme Court has observed and held in paragraph No.11 as under: “11. We find that the rule of evidence to prove charges in a criminal trial cannot be used while deciding an application under Section 166 of the Motor Vehicles Act, 1988 which is summary in nature. There is no reason to doubt the veracity of the statement of appellant 1 who suffered injuries in the accident. The application made under the Act has to be decided on the basis of evidence led before it and not on the basis of evidence which should have been or could have been led in a criminal trial. There is no reason to doubt the veracity of the statement of appellant 1 who suffered injuries in the accident. The application made under the Act has to be decided on the basis of evidence led before it and not on the basis of evidence which should have been or could have been led in a criminal trial. We find that the entire approach of the High Court is clearly not sustainable.” Even, in the case on hand, criminal case is also pending and mere production of challan / copy of charge-sheet itself not a conclusive proof. [5.3] Herein, the appellant – insurance company failed to prove or show any evidence that due to consumption of liquor by the driver of offending vehicle, the alleged accident took place and said fact of alleged consumption of liquor has contributed to the accident. In absence of any material and without outcome of criminal proceeding, merely mentioning section 185 of the MV Act is not enough or safe to presume commission of an offence. A person can be said to be under the influence of alcohol if he is having no driving ability or due to such influence of alcohol, he was disturbed and impaired. In absence of any such impact of alleged consumption of alcohol or in absence of any such evidence, mere bare words or submission in written argument is not enough in absence of specific pleading or evidence on record to prove said defence of insurance company. [6.0] In view of above, learned Tribunal has not committed any error in considering the fact that the driver of offending vehicle was not under the influence of alcohol and merely breach of any notification of not to enter in city area during day time is also breach of notification is not a ground to absolve the insurance company from the liability. Considering the aforesaid fact, such additional ground is not permissible at appellate stage as insurance company failed to raise and prove specific defence before the learned Tribunal. Hence, prima facie, it appears that the learned Tribunal has not committed any error in absence of any material. In such situation, in absence of any reliable documentary evidence or material, the learned Tribunal has not committed any error in saddling the appellant – insurance company with the liability to pay the compensation. Hence, prima facie, it appears that the learned Tribunal has not committed any error in absence of any material. In such situation, in absence of any reliable documentary evidence or material, the learned Tribunal has not committed any error in saddling the appellant – insurance company with the liability to pay the compensation. [7.0] Herein, the original claimants are third party and have nothing to do with whether the driver of offending vehicle was driving the offending vehicle under the influence of alcohol or not on the date and time of the accident. Even, order of Pay and Recover cannot be passed in absence of any fundamental breach of policy condition merely because the insurance company. In view of the above, learned Tribunal has not committed any error in saddling the appellant – insurance company with the liability to pay the compensation to the original claimants. [8.0] In wake of aforesaid conspectus, the impugned judgment and award passed by the learned Tribunal do not call for any interference by this Court and the appeal fails and hence, present First Appeal stands dismissed at admission stage. [9.0] The Tribunal shall disburse the entire awarded amount lying in the FDR and/or with the Tribunal, with accrued interest thereon, if any, to the claimants after fixing apportionment, if not already fixed, by account payee cheque / NEFT / RTGS, after proper verification and after following due procedure. [9.1] While making the payment, the Tribunal shall deduct the courts fees, if not paid, in accordance with rules/law. [9.2] Record and proceedings, if any, be sent back to the concerned Tribunal, forthwith. [10.0] Pending civil application, if any, also stands dismissed.