HIGH CQURT QF JUDICATURE CHHATTISGARH : BILASPUR DIVISION BENCH CORAM : HON'BLE SHRI H.L. DATTU,CJ & HON'BLE SHRI V.K. SHRIVASTAVA, J. Misc. Appeal (C) No. 285 of 2006 Appellant/ Owner ofthe vehicle f Kuleshwar @ Raju, S/o Sh| Lalaram Sahu, Owner Vehicle, Tractor No.CG-05-3- 6192 along with Trolley NO.CG-05-B-6193, R/o Villagt Nawagaon, Thana Magarloc), Tehsil & District Dhamtat (CG). Non-Applicant No Versus Resoondents/ Claimants ^ 4. 5. T' Respondent/ Driver of the vehicle 6. Firanta Sahu, S/o Kariya Sah^, aged about 70 years. Smt. Radhiya Bai Sahu, W/^ Firanta Sahu, aged about 6^ years. Smt. Budhiyarin Bai, Wd/|i Kalyan Sahu, aged about 2p years. Hemnarayan, S/o Kalya^i Sahu, aged about 6 years. Bhagirathi, S/o Late Kalya^i Sahu, aged about 3 years. No. 4 to 5 minor sons <|)f Kalyan Sahu, through moth^r Smt. Budhyarin Bai Sahi]i, Wd/o Kalyan Sahu. All Agriculturist, All R/o Villa^e Lafandi, Tehsil Rajim, Distri^ Raipur (CG). Claimants Cheman Lal, S/o Harkhurai]n Tarak, aged about 30 year^ Driver, Tractor No.CG-05-9- 6192 along with Trolle|y No.CG-OS-B-6193), R/o Villagfe Lafandi, Tehsil Rajim, Distri^ Raipur(CG). Non-agglicant No -SL. Respondent/ Insurer of the vehicle 7. The New India Insurance Company Limited, Vikas Pradhikaran Bhawan, Bajrang Market, Raipur, Tehsil & District Raipur (CG). | Non-applicant NoJ3 Present:- Shri Sumesh Bajaj, counsel for the appellant. None for the respondents. Appellants Claimants Misc.ADDeal(QNo.102of2007 • 1. Firanta Sahu, S/o Late Kariya Sahu, aged about 70 years. 2. Smt. Radhiya Bai Sahu, W/o Firanta Sahu, aged about 65 years. 3. Smt. Budhiyarin Bai Sahu, W/o Late Kalyan Sahu, aged about 25 years. 4. Hemnarayan Sahu, S/o Late Katyan Sahu, aged about years. 5. Bhagirathi Sahu, S/o Late Kalyan Sahu, aged about years. [Appellant No.4 & 5 minor pn through their legal guardian mother appellant No.3 Snnt. Budhiyarin Bai Sahu] [ Occupation - All Agriculturist, All R/o Village Lafandi, Tehsil Rajim, District Raipur (CG). Wrsys ! Respondents Non-Claimants 1. Cheman Lal Tarak, S/o Harkhuram Tarak, aged about 30 years, Occupation - Driyer (Vehicle Tractor beanng registration No.CG-OS-B-6192 with Trolley No.CG-O^B- 6193), R/o Village Lafarjidi, Tehsil Rajim, District Raipyr (CG). —-.—^ C,_ -SL Kuleshwar Sahu @ Raju, S/( Lalaram Sahu, Owner (Vehicle Tractor bearini registration No.CG-05-B-619; with Trolley No.CG-05-B 6193), R/o Village Nawagaon Police Station Magarlod Tehsil Dhamtari, Distric Dhamtari (CG). The New India lnsuranc< Company Limited, througl Divisional Manager, Developmen' Authority Bhawan, Bajrans Market, Raipur, Tehsil S District Raipur (CG). Present:- Shri Shivendu Pandya, counsel for the appellants. None for the respondents. ORAL ORDER (Passed on 2nd April, 2007) The following oral order of the Court was passed Ijiy Vijay Kumar Shrivastava, J. Both the appeals have been arising out of common awar^ therefore, both ofthem are taken together for hearing and disposal. 2) First Additional Motor Accident Claims Tribunal, Raipur, Lii]»l Court at Gariyaband (for short "the Tribunai"), vide award dat 17-7-2006 passed in claim case No.42/2006 allowed compensation Rs.2,26,000/- in favour of claimants against non-claimants No.1 and who are driver and owner of the vehicle. Feeling aggrieved claimar|t have filed appeal under .Section 173 of the Motor Vehicles Act, 19^8 (for short "the Act, 1988").for enhancement ofthe compensation ai(id also questioning the exoneration of Insurance Company from paym^r of compensation amount. Owner of the vehicle/non-claimant No.2 al^ preferred an appeal questioning the quantum of compensation a| exoneration of Insurance Company/non-claimant No.3 frc^m reimbursement ofthe compensation amount. f .JL 3) Briefly stated facts are that on 9-9-2005 Kalyan Sahu (^ince deceased) alongwith other labourers after loading murum in tractor 1 bearing registration No.CG-05-8-6192 & Trolley bearing registration 1 No.CG-05-8-6193 (for short "the offending vehicle") were goinjg to Samhartara sitting on the trolley. Non-applicant No.1 was the driver of the offending vehicle. As a result of rash and negligent driying of non- appllcant No.1, the tractor turned turtle. Kalyan Sahu fell down and came beneath the tractor's engine and succumbed to those on| the spot. The claimants, who are legal representatives of the deceabed, filed an application under Section 166 of the Act, 1988 compensation against non-claimants No.1 to 3, who are driver, o\ivner and insurer ofthe offending vehicle. 4) Non-claimants No.1 & 2, the driver and owner of the offenying vehicle, contested the claim, however, the driver of the vehicle dicj fo.r not dispute that engine of the tractor turned turtle. Non-clairfiant No.3/lnsurer contested the claim and very specifically took a defence that he is bound to reimburse the claim in accordance with law, rUles and condition of the policy, in case of breach of any condition o^ the policy the company is not responsible for payment of compensation.l 5) Both the parties in support of their case adduced orat and documentary evidence. The Tribunal after appreciating the evid^nce exonerated the Insurance Company holding that at the time of acciijlent the tractor and trolley were used in violation of the policy of|the insurance and allowed compensation in favour of claimants against| the non-claimants No.1 and 2, who are driver and_owner of the veh|cle. Compensation allowed is as below : 6) Learned counsel for the claimants, during the course arguments, did not question the amount of compensation and said t|iat of the compensation awarded is just and proper. His grievance is non-claimants No.1 and 2 did not deposit the compensation amoun far. Learned counsel for the owner of the offending vehicle conten that the Insurance Company did not ptea the breach of poliq accordance with Order VI Rule 4 of the Code of Civil Procedure short "the Code"), therefore, he was deprived to meet the defetice taken by the Insurance Company during the evidence stage. ~[he compensation awarded by the Tribunal is also on higher side. 7) We have gone through the record of the Tribunal. Perused |the award, documentary and oral evidence. From the evidence of Fir^nta Sahu (AW-1) and Leeladhar (AW-2), it was proved that decea^ed Kalyan Sahu was a labourer. Although it was not proved ):hat deceased was getting the work daily, therefore, the Tribunat allo'(ved his income as Rs.1,500/- per month and after reducing 1/3 as his ^wn expenses, assessed dependency Rs.1,000/- per month and| by applying the multiplier method recorded dependency of Rs.2,04,0p0/-. From the evidence on record, the finding of fact recorded by|the Tribunal does not appear to be condemnable. The Tribunal allo^/ed just and proper amount towards other heads. So far as compens^tion allowed by the Tribunal is concerned, claimants themselves does] not challenge it during the course of arguments as unjust qr improper|and hat so ed in for S.No. Head Amount -OT7- Loss of Dependency 1,04,000=00 02. Funeral expenses 3,000=00 ^37 Consortium 5,000=00 04. Love & Affection 14,000=00 TOTAL ^726,000=00 the challenge made by the owner does not appear to be acceptab|e in illeii 4i- view ofthe aforesaid discussions. 8) Section 169 of the Act, 1988 prescribes summary procedur^ for enquiry of claims. Rules framed by the State for enquiry of claimis by Claims Tribunal although made applicable several provisions of the Code, but all the provisions of the Code have not been nhade applicable to be followed by the Claims Tribunal. OrderVI ofthe Gode e to also falls within those provisions, which are not made applicab Claims Tribunal. Order VI Rule 4 of the Code reads as below: "4. Particulars to be given where necessary.—Inall cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading." From bare reading of the above provisions, it is evident that this is not a case of misrepresentation, fraud, breach of trust, wilful deifault, or undue influence, but Insurance Company very specifically tdok a defence that in case breach of condition of policy, the company shall not be liable to pay the compensation amount. Pleading is ther^ and only burden lies on the shoulder of Insurance Company is to pro(/e its pleading. It is not necessary that Insurance Company should pro^/e its plea by introducing its own witnesses and it can prove its contention by evidence brought before the Tribunal by other parties also. 9) Here in the instant case, Firanta Sahu (AW-1) in his stat^ment stated that deceased was engaged in transportation of m^irum, therefore, on the date of incident he was in the tractor trolley, 'jvhich was carrying murum from Chaitra to Samhartara. He further depos|ed that the murum was transported for construction of road. Leeladl^ar (AW-2) in his statement deposed that road construction at Samhart^ra was going on. For the said purpose murum was being transported q'nd they were doing the work of labourer in transportation of murum rind the tractor was transporting the murum to Samhartara where road v}as constructed. Even owner of the offending vehicle Kuleshwar S^hu (NAW-1) in his statement deposed that on the date of incident (lis i vehicle was used for transporting murum. Undisputedly the truck gnd trolley was insured for agricultural purpose. From the oral evidence|as stated above, it was established that the truck and trolley was be|ng used for transporting the mwum for construction of road. It is as clear as crystal that the truck and trolley was used for commereial purpdse and in violation of the condition ofthe insurance policy, therefore, the Tribunal while exonerating the Insurance Company did not commit Elny error or illegality, which may call for interference of this Court. 10) In view of theabove, we are of the considered opinion that the finding recorded by the Tribunal against non-claimants No.1 and 2 ^re finding of facts and are recorded on the strength of legal admissi^le evidence and those findings in no way can be condemned. |\lo interference of this Court is calted for in the finding and award pas^ed fciy the Tribunal, which does not suffer from any illegality or infirmity. 11) Iri the result.both the appeals are liable to be dismissedand ^re accordingly dismissed. No costs. Vijay Kumar Shrivastava (Judge) Sd/- H.L.Dattu (ChiefJustice)