THE NEW INDIA ASSU. CO. LTD. v. Prasen Kumar & Motilal Teharyansh

Judgment

#1. Prasen Kumar, »S/o. late Shri Dau Lal Satnami, aged 25 years, R/o. Baijnath Khapri, Police Station and Tahsil Palari, District Raipur (C.G.)

#2. Motilal Teharyansh, aged about 58 years, S/o. Gajanand Teharvansh, Resident of Baijnath Khapri, Police Station and Tahsil Palari, District RaipurfC.G.) APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLEACT 1988 5;, HIGH COURT OF CHHATTISGARH SINGLE BENCH:HON'BLE SHRI JOSTICE SANJAY K. ASRAWZU.. MISCELLEANEOUS APPEAI. (C) N0. 463/2011 APPELIANT New India Assu. Co The Ltd. Versus RESPONDENTS Prasen Kumar and another (MISCEI.LEANEOUS APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988) Present: Mr. Ajay Barik, Advocate for the appellant. None for the respondent No. 1. Mr. Anil Singh Rajput, Advocate for the respondent No. 2. JUDGMENT (Passed on 05/12/2013)

#1. The New India Assurance Company Ltd./appellant herein has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short 'the M.V. Act' ) questioning 27/11/2010 passed by Second Additional Motor Accident Claims Tribunal, Balodabazar (.for 'the Claims Tribunal') in Claim Case No. 67/2009, by which, the Claims Tribunal has partly allowed the claim petition filed by the claimant and awarded total sum of ^ 2,60,000 along with 6% interest.

#2. Brief necessary adjudication this appeal are as under:

2.1 Claimant- Prasen Kumar being the brother of deceased Vijay Kumar Satnami, filed claim petition No. before Claims Tribunal seeking compensation stating a2.la that on 03/04/2009, the Tractor bearing registration No. CG-04/D/7058 & Trolley bearing registration No. CG-04/D/7062 (offending vehicle) was driven by Narrottam, respondent No. 2/owner- Motilal Teharvansh and insured with appellant/the New India Assurance Company Limited, rashly and negligently, caused the death of Vijay Kumar Satnami. Claimant- Prasen Kumar claimed compensation to the extent of ^ 28,25,000 to the owner and insurer jointly and severally.

2.2 Owner of the offending vehicle has opposed the claim, by filing written statement stating the - offending vehicle being used for agricultural purpose. Whereas, appellant/Insurance Company written statement pleaded offending vehicle insured agricultural purpose, accident, the offending vehicle was being used for non-agricultural purpose and, therefore, the appellant/Insurance Company is not liable for payment of compensation.

2.3 On close scrutiny of the evidence, Claims Tribunal has partly allowed the claim petition -*\ filed by the claimant finding inter alia that: (i) On 03/04/2009, accident occurred due to rash and negligence act of driver- Narottam. (ii)Appellant/Insurance Company failed to establish the breach of term policy insurance leading appropriate evidence. (iii) Claimant- Prasen Kumar entitled compensation following manner: S.No. Heads ComDensation

#3. Loss of dependency Funeral expenses & loss of estate ^ 2,40,000 ^ 10,000 Love & affection ^ 10,000 Total ^ 2,60,000

Mr. Ajay Barik, learned counsel appearing for the appellant/Insurance Coinpany would submit that i^ 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, thereTore, appellant/Insurance Company liable indemnify the amount under award.

#4. Per contra, Mr. Anil Singh Rajput, learned counsel appearing for the respondent No. 2/owner supported the impugned award and would submit that there is no legal evidence led by the Insurance Company to prove the breach of term of policy of insurance, therefore, Claims Tribunal absolutely justified in directing the Insurance Company to indemnify amount under award.

#5. I have heard learned counsel for the parties considered submissions perused the records of the Claims Tribunal.

#6. Appellant/Insurance Company a speaific written statement offending vehicle insured '3'' agricultural purpose and on the date of accident, offending vehicle collecting i.e. non-agricultural purpose, which is absolutely breach of term of policy of insurance, therefore, appellant/Insurance Company is not liable to indemnify the award.

#7. In establish offending •'»*, vehicle was insured only for agricultural purpose and it could not have been used for collecting sand and the deceased was sitting as gratuitous passenger said vehicle accident, which was not covered with contract of insurance issued in favour of the owner of the vehicle.

#8. During the course trial, respondent No. 2/owner- Motilal Teharvansh (AW-1) examined. He has clearly stated that on the date accident Tractor collect construction of drainage in his agricultural land, Tractor insured appellant/Insurance Company and driver did have a valid and effective licence to drive the offending vehicle. Likewise, appellant/Insurance Company has examined R. Mukesh (NAW-2(2),), Branch Manager, New /.in: <ii^.. ' India Assurance Company Limited. He simply proved the terms and conditions of the policy of insurance. The witness appellant/Insurance Company has not uttered any accident, whether deceased was sitting in the vehicle as gratuitous passenger or otherwise, and also not stated that "in the offending vehicle sitting of said person would breach of policy of insurance.

#9. It is well settled that appellant/Insurance Company taking a plea that offending vehicle was breach policy 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 appropriate evidence breach of condition of policy. Since, no evidence has been brought on record to establish the fact of breach of policy of insurance on the part of offending vehicle plying vehicle.

#10. Having gone through the record of the Claims Tribunal, there is no evidence on record to hold offending vehicle was being used non-agricultural purpose. It settled principle appellant/Insurance Company, taking a plea that the offending vehicle was being plied in violation of breach of policy of insurance, has to lead supportive evidence and prove the fact.

#11. In Narcinva V. Kamat and another v. Alfredo Antonio Doe Martins and others , the Supreme Court held thus: questlon "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. have been discharged by it by a cross- The second appellant examlnation. was und.er no obligation to furnish evidence Insurance company to wrigg-le out its liability under the contract of insurance. Further the R.T.A. which issues the driving licence licences issued and renewed by The insurance companyi could have got ' produced to substantiate Its allegation. Applying the test who would fail if no evidence is led, the obvious answer is the insurance company. " record of evidence enable it. a

#12. For foregoing reasons, cannot (1985) 2 SCC 574 8 conclude that the Claims Tribunal is unjustified in fastening liability upon Insurance Company to indemnify the amount under award.

#13. Applying test, I conclusion findings recorded Claims Tribunal require no interference by this Court.

#14. In result, appeal appellant/Insurance Company fails and is hereby dismissed. The impugned award dated 27/11/2010 is hereby affirmed. Tiwari Sd/- Sanjay K. Agrawal Judge 1