raii.ih ,... 't r HiGH COURT OF CHHATTISGARH, BILASPUR M.A.fO.No. 347 of 2006 Singie Bench : Hon'bie Shri Dilip Raosaheb Deshmukh, J. Appeilant Non-appiicant No.5 Ressondent No.1 Applicant 1 «.Il Kespondent No.z Non-aDolicant No. Respondent No.3 Non-applicant No.z The National Insurance Company Ltd Branch Jagdalpur District Bastar, TTirough its Divisional Manager, Divisiona! Office, Bilaspur, near Hotel Gazibo, Vyapar Vihar Road, Bilaspur, Tah. & District Bilaspur (CG) Versus Paldeo Narayan, S/o late Pateleo Kistaiyya, aged about 28 years, R/o Gorla, P.S.Bhopalpatnam, Tah. & Distt. Dantewada, South Bastar (CG) Dumpa Gaiaya, S/o Aumpa Roshaiyya, aaed about 28 vears, R/o Gorta, P.S.Bhopaipatnam, Tah. & Distt. Dantewada, South Bastar (CG) Taiandi Narsaiya, S/o iate Tolandi Koti, Rio Goria, P.S. Bhopaipatnam, Tah. & Distt. Dantewada, South Bastar (CG) Misceiianeous Appea! Under.Section 173 of the Motor_Vehicies_Act,19S8 Present: Shri Naval Kishore Agrawal, tearned Sr. Advocate with Shri Qamarul Aziz and Shri Deepak Gupta, counsei for the appellant. RAL ORDER (Passedon 11.8.2007) Heard. 2. The appellant/insurer is aggrieved by an award dated 25.07.2006 passed by the Additionai Motor Vehicles Accidents Claims Trtbunai, Dantewada (hereinafter referred to as the M.A.C.T.) in claim case No. 144 of ^c 2004 whereby compensation of Rs.84,000/- was awarded in a case of accidental death. 3. it is not disputed that Ku. Paldeo Gopakka, aged 30 years, was traveiling on the Traiter No.M.P. 23-GA/1387 (henceforth, the Trailer) attached to the Tractor No.M.P.No.23-GA/1386 (henceforth, the Tractor). Due to rash and negligent driving of respondent No.2 herein, near B.R.O.Camp, Bhopalpatnam, she fell and was run over by the Trailer. Quantum of compensation awarded by the M.A.C.T. is also not in question. It is also not dispute that the Tractor/Traiier was insured by the appeliant/insurer under farmers' package insurance policy. 4. The respondent No.l/claimant had pleaded that at the time of accident, the Tractor/Traiter was being used for agricultural purposes and was carrying the labourers for proceeding to the fields for conducting sowing operations. The respondent No.S/owner admitted that the deceased was traveiling on the Trailer at the time of accident and the Tractor was being used for agricultural purpose at the time of accident. The appellant/insurer denied in paragraph 5 of the written statement that the Tractor/Trailer was being used for agricuttural purpose. No specific breach of policy of insurance'was pleaded. In other words, it was not pleaded specifically that at the time of accident the Tractor/Trailer was being used for carrying a marriage party. nrc :% 5. Ptacing reliance on the evidence led by the claimant, the M.A.C.T. held that the Tractor/Traiier was being used for agricuitural purpose and breach of policy of insurance was not established. Consequently, it awarded compensation of Rs.84,000/- against the appellant/insurance company. 6. The sole point urged by Shri Naval Kishore Agrawai, iearned Senior Advocate for the appellant is that the claimant had proved the first information report Ex.P.1 lodged by him which revealed that the Tractor/Traiier was being used for carrying a marriage party of 30 persons. It was urged that breach of policy was thus clearly estabiished, and therefore, in view ofthe admission ofthe claimant under Section 18 ofthe Evidence Act, the M.A.C.T. was in error in placing reiiance on the evidence of the claimant and awarding compensation against the appellant/insurer. No other point was urged. 7. Nooneappeared forthe respondents atthetimeoffinal hearing. 8. Having considered the submissions of the learned Senior Advocate for the appellanVinsurer, 1 have perused the record. it is weil settled that the initial burden of proving the breach of policy is upon the appellant/insurer. It is pertinent to note that the claimant had specifically deposed before the M.A.C.T. that at the time of the accident the deceased was travelling on the Traiier for the purpose of going towai-as the agriculturat field for sowing operations. So far as the first information report Ex.P.1 is concerned, it has been formatly exhibjted by the M.A.C.T. without narrating the contents to its maker i.e. the respondent No.l/ctaimant. The appeliant/insurer also did not contradict the claimant from the F.i.R. Ex.P.1. The appeilant/insurer had aiso produced before the M.A.C.T. a report ofthe Investigator appointed by the appellant/insurer wiich did not show that the Tractor/Traiier was being used for carrying a marriage party at the time of accident. The testimony of A. Kujur, Branch Manager of the insurance company was rightly rejected by the M.A.C.T. on the ground that he did not witness the accident. Another important factor which needs to be noticed is that the appellant/insurance company did not, in its written statement a!so, take a specific plea that the Tractor/Traiter was being used for the purpose of carrying a marriage party at the time of accident. The insurancecompany also did not produce the insurance po!icy before the M.A.C.T. to prove the terms under the package of insurance policy. The certiffcate of insurance flled before the M.A.C.T. only speaks that the policy did not cover use for organized racing, pace- making or reliability trails. Under these cireumstances, the M.A.C.T. was wholly justified in recording a finding that breach of policy condition was not established by the insurer. 9. In the result, there is no merit in this appeal which is dismissed. Sd/- Dilip Raosaheb Deshmukh Judge Anjani