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11. Similar view has been reiterated in (2009) 2 SCC 75, titled as "National Insurance Company Limited vs. Rattani and others", paragraph 14 and 15 of which are reproduced hereunder:

"14. The question as to whether burden of proof has been discharged by a party to the is or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers.

9. In the case of National Insurance Company Litd. Vs. Rattani and others reported in (2009) 2 SCC 75, the Hon'ble Apex Court has held in Paras- 14 to 19 as under :

"14. The question as to whether burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers.

12. Considering the provisions of Sub-sections (4) & (5) of C/FA/4215/2008 JUDGMENT DATED: 12/01/2022 Section 149 of the Act, the impugned judgment is clearly violative of the said provision and therefore, the impugned judgment and award is required to be modified to the extent.

13. In view of the above ratio laid down by this Court as well as by the Hon'ble Apex Court in the cases of Minor Mahesh Kanubhai (supra), Savitra Devi (supra), Rattani and others (supra), United India Insurance Company Vs. Rajabhai Kanjibhai Harijan and others reported in 2019 (3) GLR 2039 and United India Insurance Company Ltd. Vs. Jinnatben Sidikbhai and others 2017 Law Suit (Guj.) 1221, the present appeal requires to be allowed and the order passed by the Motor Accident Claims Tribunal, Fast Track Court No.5, Surat dated 29.01.2008 in MACP No. 572 of 2001 is modified to the extent that the present appellant - Insurance company is hereby exonerated from its liability.