4; 1 IN THE HIGH COURT OF JUDICATURE AT BIL^PURJC.Gl Misc. Appeal (C) No, 72006 APPELLANT - Steitegsrsci Bajaj AUanz General Insurance Corapany Ltd. Non-AppUcant No.3 Though Branch Manager, Branch Of&ce Macruat BuUding, 10/B, O.C. Ganguly Sami, Kolkata 700020 (W.B.) Versus 8ESPONDENTS / ^l) Sonsai S/o Late Devi Singh (since dead) ^.2) Sudama S/o Late Sonsai Age 26 years . 'C/'^p ^- 3) Krishna Kumar S/o Late Sonsai Age ^••'^ /.- -.^. ^^.-.-«1t- ''J'^ D^ ^' 4)(§uda]3ia)S/ o Late Sonsai Age 16 years '.5) Shanti D/o Late SonsaiAge 14 years TW /xy ^v A6' .-•" ^' <^y ^•-^-r fSf • 6) Janki D/o Late Sonsai Age 12 years -^No 4,5 & 6 minor fhrough Sudma S/o Late Sonsai all R/o Village Gadbadi, Tahsil Baikunthpur District Koria (C.G.) (Claimants) 7) Motiram. s/o Hajari Prasad Gond Age 25 .^yeais Occupations - Driver R/o Village Dhanpur, Thana Khadgawan, District Koria (C.G.) (Non Applicant No. 1 Driver) y 8) Bilaspur Coal Camer Private Limited, Through Captaia VaU Mohemmed Khan Ranchi Road, Marar, Hajaribag Bihar (Non AppEcant No. 2 Owner) 9- M^aORAN^UMOF^PEAL UNDER SECTIOM73 OF THE MOTOR VEHICLES ACT 1988 a^\ / JI^'-LJ ^•^^1 ;a ^ /.» n.A.tCl M.A.i'ct No.248 OF 2< lellsnt Bajaj Alianz General Koikata W.B.) •I Sonsai and others Insurance Co. Lti Present: ^a.chin Singh Rajput with iant/insurance company. Anant Bajpai, counsei for the QRD^RJOral) l. This appeal has been fiied by the appellanVinsurance company .under Section 173 of the Motor Vehicles Act, 1988 the award dated 12 May, 2006 passed by the Additionai Motor Accident Claims Tribunal, Baikunthpur, Distt. Korea. (in short "the TribunaS") in.Ciaim Case No. 44/04, fastening iiabilify {o pay the compensaflon on the appellanu'insurance cornpany jointiy and severafly along with driver and owner. irief facts of the case are thai Raikurnar used to work as iabour in Dumper No. B.R.-13-G/0345. On the date of accident i.e. 50.10.2004, Rajkumar was fraveling in that Dumper as a labour anc juing to Village Saraigahna from Viliage : Sara. The Dumper was 3°ing driven by respondent No.7 in a and negligent manner, on account of which it turned turtle at Vi!!age : Sara on the siope, as a result of which Rajkumar feil down and sustained grievous injuries, and ultimately, succumbed to the same on the spot. Report of the accident was lc'dgeu by brother of deceased Rajkurnar at Police Station : Baikunthpur against respondent No.7, whereupon Cr.No.303/04 for the offence punishable under Sections 279, 337 and 304A of the IPC was registered and after compfetion of irivestiyation, charge sheet filed him in the Court of Chief Judiciai Magistrate, Baikunthpur. ^ Af fhe time nf ancident fhe rieReased was 19 vears and waa fietfinn 'Th/^u? 'uAu/^a/'^^ y *? ^rffe-tta? i tl^ V ^a/fc.AI •^^ ^uAI l\*ifl V ? ^)*<'^/ 1tariS ^n/^ t; & i Rs.300/- per day as a fabour. He was also earning Rs.15,000/- per •- annum from agricultural work. 'The entire famiiy dependent •e^ J 3 l-^y c upon him. With the averments, No.1 {o 6, who are father, of the respectively, being his filed a c'aim petition under Section 166 of the Motor Act, 1988 (In short "the Aqt, 1988") for a totai compsnsation of Rs.36,10,000/- for the of Rajkurnar various heads. 4. Howfivsr, learned Tribunai after close scrutiny of the evjdencs led }y the before it, awarded a compensation of Rs.1,39,000/- under uifferent the liabiiity upon the company, jointly and severally, with the driver ana ins owner. 5. counse! for the company has that has a of conditions of th< 'insurance poiicy as fhe perrnitted to sit in the Dala (portlon of the where are of the Dumper and therefore, the company is not liable to pay any and the has wrongty fastened upon it bytheTribunai. d counsel for the parties, perused the Lower Court (LCR) as we.1! as the impugned award. Bythe impugned 12.5.2006, the Tribunal has a compensation of Rs.1,39.000/- to the claimants on of of deceased Raikumar in the road invotvina >^;. i t V? licte i.e. Dumper No. B.R.-13-G/034S, which, at the time of ?nt, was being rashly and driven by Motiram, owned by Mo.8 and with the appeilant/insurance company. On behalf of appeiiant/insurance company, it vv'as in the written statement that as there has breach of terms and of the insurance. policy, therefore, the insurance company is not iiabte for any nsation. !t 1s position in law that of conditions of policy is the burden iies upon the insurance conipany to prove tns same. No svidsnce was adduced on behalf of the insurance company the Tribuna! for discharging its 1 burden. The Tribunal specifically mentioned in para-10 of the impugned that as no has on of the CQmpany/non-appiicant No.3 for proving of conditions, therefore, the of, of poiicy conditiuns "not proved". There is no that the vehicle in question was iRsured with ths appeliant/insurance company on ths dats of accident, anu as such, iooking to the tOtality of the facts and cireumstanccs of the case, there appears to be no infirmity or H'egaiity in the impugned award, which ca!is fbr any interference by i'^;^ ^^.-^_ s EI-4. inis L'ourt. 'n the result, the devoid of any substance is dismissed and the irnpugned award dated 12.5.2006 passed by Additional Motor Accidenf Claims Tribunal, Baikunthpur, Distt. Korea in Ciairn No.44/04 is hereby affirmed. i~ ^ lor Sd/- G. Minhajuddu Judge ^ -. ^ 1