1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT National Insurance Co. Ltd. Vs. Smt. Chhoti Devi & Ors. (S. B. Civil Misc. Appeal No.2267/2010) S. B. Civil Misc. Appeal under Section 173 of the Motor Vehicle Act, 1988. Date of Judgment: October 04, 2010 PRESENT HON'BLE MR. JUSTICE R.S. CHAUHAN Mr.Rahul Joshi, for the appellant-Insurance Co. BY THE COURT: Aggrieved by the award dated 16.06.2010 passed by the learned Motor Accident claims Tribunal, Sambhar Lake, District Jaipur, whereby the learned Tribunal has awarded a compensation of Rs.15,61,000/- along with interest @ 7% per annum to the claimants-respondents, the appellant- Insurance Company has challenged the same before this Court. The brief facts of the case are that the claimants-respondents filed a claim petition against the defendants stating therein that on 16.08.2007, when Mewaram, the husband of claimant- respondent No.1, Smt. Chhoti Devi, was travelling in a Bolero Jeep, bearing registration No. RJ-14- 2 UA-2323, a Truck, bearing registration No. RJ-14- 1-G-5606, which was being driven rashly and negligently, hit the Bolero Jeep from the wrong side. Resultantly, due to the serious injuries, Mewaram died. Inspite of service, the defendant Nos.1 to 3 did not appear. Therefore, an ex-parte order was passed against them. The defendant No.4, the Insurance Company, submitted its written statement claiming therein that the truck was being driven on the correct side of the road, that too at a reasonable speed, whereas the driver of the Bolero Jeep was driving the vehicle rashly and negligently. Therefore, the Insurance Company was not liable for any compensation. On the basis of pleadings of the parties, the learned Tribunal framed five issues. In order to prove their case, the claimants examined four witnesses and submitted thirty-one documents. On the other hand, the defendants neither examined any witnesses, nor submitted any documents to buttress their case. On the basis of the oral and documentary evidence, vide award dated 16.06.2010, the learned Tribunal awarded the compensation, as mentioned above. Hence, this appeal before this Court. Mr. Rahul Joshi, the learned counsel for the appellant-Insurance Company, has raised the following contentions before this Court : firstly, according to the claimants-respondents, Mewaram 3 had entered into a partnership with two other persons. According to the partnership deed, 40% of the profit of the partnership firm was being given to Mewaram. According to the learned counsel, this is most unnatural as generally the profit of the partnership firm is divided equally amongst the partners. Secondly, the income tax returns submitted by the claimants were filed by them after the death of Mewaram. Therefore, the returns should not have been believed by the learned Tribunal. Thirdly, according to the claimant and according to the partnership-deed, the salary was to be paid only to the Mewaram and not to the other two partners. This also casts doubt about the veracity of the partnership deed. Heard the learned counsel for the appellant and perused the impugned award. According to the award, although the Insurance Company had challenged the amount of income shown by the claimants, it did not challenge the veracity of the partnership deed. Thus, a new plea is being raised before this Court which was not taken before the Tribunal. The same cannot be allowed at the appellate stage. Secondly, according to the learned Tribunal, the Insurance Company did not produce 4 any cogent evidence to prove the fact that the partnership deed was a forged one, or that the income tax returns, filed by the claimants after the death of Mewaram, did not reflect his real income. Since the appellant has failed to substantiate its defence, the learned Tribunal was certainly justified in rejecting the contentions raised by the appellant. Afterall, there is a clear distinction between making of a statement or taking of a defence on one side, and proving the statement to the satisfaction of the Tribunal on the other side. In case the burden of proof is not discharged fully, the learned Tribunal would certainly be justified in not accepting the contentions or defence taken by the appellant. Hence, this Court does not find any illegality or perversity in the impugned award. Thus, being devoid of any merit this appeal is dismissed. (R.S. CHAUHAN) J. Manoj solanki