M.A.NO. ^€f v. KESPONDENTS

Smt. Ashamati Bai Gond and others M^scellaneous Appeal No. 870 of 2004 APPELLANT United India Insurance Company Ltd. VERSUS RESPONDENTS Kamleshwari Ku. and others Gond Miscellaneous Appeal No. 874 of 2004 .( ""^^',.^1;'.. \ . i'< ."' ' n;^ APPELLANT United India Insurance Company Ltd. VERSUS RESPONDENTS Singh Kamlesh others And Miscellaneous Appeal No. 875 of 2004 APPELIANT United India Insurance Company Ltd. VERSUS RESPONDENTS Shivnayak others Singh MISCELLANEOUS APPEALS UNDER SECTION 173 OF THE MOTOR VEHICLES ACT ,1988 Present: Mr. H.B. Agrawal, Sr. Advocate with Mr. Pankaj Agrawal, Advocate for the appellant. Mr. Mukesh Sharma, Advocate for the claimants. None for the other respondents. J U D GM E N T (Passed on 02/12/2013) (1) The disposal of this appeal would also govern disposal M.A. Nos. 869/2004, 870/2004, 874/2004 & 875/2004 as ail have arisen out of one accident and common award dated 28/04/2004 passed -^-.^. ' A •W, _ ^~IIA by the Additional Motor Accident Claims Tribunal, Janjgir, District Bilaspur (for short 'the Claims Tribunal') in Claim Case Nos. 50/2002, 52/2002, 53/2002, 49/2002 & 51/2002. Since common question of fact & law are involved, therefore, they were heard together and being decided by this common j udgment. (2) Appellant/Insurance Company has filed these appeals challenging the award impugned. (3) Facts leading to filing of these claim cases may briefly be noted thus:-

3.1 Claimants- Smt. Itwara Bai, Smt. Ashamati Bai Gond, Ku. Kamleshwari Gond, Kamlesh Singh & Shivnayak Singh, suffered grievous injuries in road traffic accident. They had filed claim petitions Section 166 Motor Vehicles Act, 1988 (in short "the M.V. Act") for compensation stating inter alia that on 14/03/2002, they were traveling Tractor (offending vehicle) bearing registration No. Qc MP-26/E/5473, which was driven by Kunjram Gond rashly and negligently, owned by Tularam Sahu insured United India Insurance Company Limited, between village Devkirari and Railway Dabari, the said tractor was turned turtle, by which, claimants suffered grievous injuries and admitted in Government Hospital, Akaltara. They lodged First Information Report against the driver- Kunjram Gond in Police Station Akaltara. Thereafter, charge-sheet was Sections 279, 337 & 338 IPC against the driver- Kunjram Gond before the Court Judicial Magistrate First Class, Janjgir. It was further pleaded that claimant- Smt. Itwara Bai suffered partial permanent disability to the extent of 15-20%, claimant- Smt Ashamati Bai Gond suffered partial permanent disability to the extent of 35% and claimant- Ku. Kamleshwari Gond suffered partial permanent disability to the extent of 1/ 10%. .'*""'"' .^. / /"'"'"<- '•3r;1''.- t'ff'' L

3.2 The driver and owner remained ex-parte as they did not file any written statement before Claims Tribunal, whereas, Insurance Company has filed his written statement and pleaded that the offending vehicle was duly insured for agricultural purpose, but on the date of accident, the offending vehicle was carrying passenger i.e. commercial purpose and, therefore, appellant/Insurance Company is not liable for payment of compensation.

3.3 During course enquiry, appellant/Insurance Company only examined Mr. D.D. Poptani (NAW-1), Assistant Administrative Officer, United India Insurance Company Limited to prove the policy of insurance. He has proved the policy vide Exhibit NA3(1)(C) .

3.4 On close scrutiny of the evidence, Claims Tribunal partly allowed petitions filed by the respective claimants finding inter alia that: 'Y ••-:\ :\ 'isE..^: • -t>af,-- •' \ (i) On 14/03/2002, accident occurred due rash and negligence act of driver- Kunjram Gond. (ii) Claimants- Smt. Itwara Bai, Smt. Ashamati Bai Gond & Ku Kamleshwari Gond have suffered partial permanent disability to the extent of 15-20%, 35% & 10%. (iii) Appellant/Insurance Company has failed to establish the breach of term of policy of insurance by leading appropriate evidence. (iv) Claimants entitled compensation in the following manner: Claimant- Srnt^_Itwara Bai: S.No. Heads Compensation

3. Pain S Suffering Attendant S Special diet Permanent disability ^ 5,000 ^ 5,000 ^ 30,000 Total ^ 40,000 A iit. -'•••-l.- Claimant- Smt_, Ashamati Bai Gond: S. No. Heads Compensation

3. Pain s Suffering ^ 10,000 Attendant & Special diet Permanent disability ^ 10,000 ^ 40,000 Total ^ 60,000 Claimant- Ku. Kamleshwari Gond: S.No. Heads Compensation

3. Pain & Suffering Attendant s Special diet ^ 10,000 ^ 10,000 Permanent ^ 20,000 disability Total ^ 40,000 Claimant- Kainlesh Sinah S.No. Heads Comoensation

3. Pain & Suffering Attendant, Special diet s Traveling fare ^ 5,000 ^ 5,000 Future loss of ^ 5,000 .^ earning capacity Total ^ 15,000 /' / L^. Claimant- Shivnavak Sincrh: S.No. Heads Compensation

3. Pain & Suffering Attendant, Special diet & Traveling fare Future loss of earning capacity ^ 5,000 ^ 5,000 ^ 20,000 Total ^ 30,000 (4) Mr. H.B. Agrawal, learned Sr. Advocate with Mr. Pankaj Agrawal, learned counsel appearing for the appellant/Insurance Company would submit that the Claims Tribunal has committed legal error in holding that the Insurance Company has failed to establish breach of term of policy of insurance. He would further submit that there is overwhelming evidence available record to hold that offending vehicle was being plied by the owner of vehicle breach policy insurance, therefore, appellant/Insurance Company liable indemnify amount under award. u (5) Per contra, Mr. Mukesh Sharma, learned counsel appearing for the claimants supported the impugned award and would submit that evidence led by the Insurance Company to prove the breach of term of policy of insurance, therefore, Claims Tribunal absolutely justified in directing Insurance Company indemnify amount under award. (6) I have heard learned counsel for the parties considered submissions perused the records of the Claims Tribunal. (7) Appellant/Insurance Company a specific written statement offending vehicle insured agricultural purpose and it could have been used only for agricultural purpose. Appellant/Insurance Company has further pleaded that on the date of accident, the offending vehicle was being used for carrying 10-15 passengers, absolutely breach policy insurance, therefore, appellant/Insurance Company 10 liable to indemnify the award. (8) In establish offending vehicle was insured only for agricultural purpose could not have been used carrying passengers, as all the claimants were sitting as gratuitous passengers in the said vehicle on the accident, covered contract insurance issued favour vehicle. Insurance Company examined Mr. D.D. Poptani as NAW-1, who proved the policy of insurance issued in favour of owner of the vehicle stating inter alia that the policy was issued owner-Tularam Sahu agricultural purpose, and third party risk cover plus risk of driver, was duly covered under the said policy. He further deposed that under the policy insurance, passengers allo.wed to travel in the offending vehicle, as the offending vehicle could not have been used for commercial purpose. 4 (9) A perusal statement l4\ ^ei,. . A 11 witness Mr. D.D. Poptani (NAW-1) examined behalf of the Insurance Company would show that the appellant/Insurance Company has only proved the policy of insurance issued in favour of the owner of the offending vehicle and was inforce on the date accident. The said witness Insurance Company has not uttered any word on the accident, whether injured persons sitting in the vehicle as gratuitous passengers or otherwise, and also not stated that sitting of said persons in the offending vehicle would breach of policy of insurance. (10)It settled Insurance Company taking a plea that offending vehicle was being plied in term of breach of policy of insurance, must led legal evidence to prove the same to the satisfaction of the Claims Tribunal. In the case in hand, the Insurance Company though has taken a specific plea with regard to breach of term of policy of insurance, but has miserably failed to appropriate evidnece breach *'a'aii»>.:A f-1 /' 12 condition of policy. Except the aforesaid piece of evidence, no other evidence has been brought on record to establish the fact of breach of policy of insurance on the part of owner of the offending vehicle in plying the vehicle. (11) Having gone through the record of the Claims Tribunal, there is no evidence on record to hold offending vehicle was being used for carrying passengers' i. e. non-agricultural purpose. It is well settled principle of law that Insurance Company, taking a plea offending vehicle was being plied in violation of breach policy insurance, supportive evidence and prove the fact. (12) In Narcinva V. Kamat and another v. Alfredo Antonio Doe Martins and others , the Supreme Court held thus: "14...... The burden to prove that there was breach of the contract of insurance was squarely placed on the shoulders of the insurance It could not be said to company. (1985) 2 SCC 574 • "<..•' ' ,' ""-^ .-3e'II<>*"5?.'-v i-.^B-mi ^ .,..9' / .y ^.^ ','.1 '^. '?s. V'" ..^ e:.74 ^</ '•^y 13 enable question have been discharged by it by a cross- The second appellant examlnation. was under no obligation to furnish evldence -insurance company to wriggle out its liability und.er the contract of insurance. Further the R.T.A. which issues the drivlng licence licences issued and renewed by The insurance company could have got allegation. Its substantiate Applying the test who would. fail if no evidence is led, the obvious answer is the insurance company. " produced evidence record it. a (13) For foregoing reasons, cannot conclude that the Claims Tribunal is unjustified in fastening liability upon Insurance Company to indemnify the amount under award. (14) Applying test, I conclusion findings recorded Claims Tribunal require no interference by this Court (15)1n result, appeals (M.A. Nos. / 868/2004, 869/2004, 870/2004, 874/2004 & 875/2004) filed by the Insurance Company fails and are hereby ^ 14 dismissed. The impugned award dated 28/04/2004 is hereby affirmed. (16) The original order be kept in the record of M.A. No. 868/2004 and. the copy of the same shall be kept in the records of other connected M.A. Nos. 869/2004, 870/2004, 874/2004 & 875/2004. Sd/- Sanjay K. Agrawal Judge Titojari