- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE JURISDICTION FIRST APPEAL ST.NO.5376 OF 2008 The New India Assurance Co.Ltd. .. Appellant (Org.Insurer) Versus Purna Rajendra Kumbhar (Patil) and Others. .. Respondents -- S/Shri S.R.Singh i/b D.R.Mahadik for the Appellant. -- CORAM : ABHAY S. OKA, J DATED : 13TH MARCH, 2008 P.C. 1. Heard the learned counsel appearing for the Appellant. The Appellant is insurer of the vehicle involved in the accident. The challenge in the appeal is to an award made on a claimants’ application under Section 140 of the Motor Vehicles Act, 1988. 2. There is no dispute about the fact that the vehicle in dispute was insured with the Appellant at the relevant time and that there was an accident. The challenge is on the ground that the insurer had allowed the vehicle to be used by M/s.Ashok T.Atalatti - 2 - Company for hire charges and the vehicle was being used for transporting the employees of the said Company. A reliance is placed on police papers. 3. The burden was on the Appellant to lead evidence as regards the breach of the terms and conditions of the policy. Merely on the basis of what is stated in the police papers produced by the claimants, it cannot be inferred that the vehicle in dispute was hired by the said Company. Therefore, no fault can be found with the impugned judgment and award by which the application under Section 140 of the said Act of 1988 has been allowed by the Tribunal. 4. It is obvious that all questions on merits in the main application under Section 166 of the said Act of 1988 are kept open and it is always open for the Appellant to agitate the issue regarding breach of the terms and conditions of the policy in the said application. It is obvious that all contentions which were raised in the reply to the application under Section 140 of the said Act of 1988 are expressly kept open insofar as the main application under Section 166 of the said Act is concerned. 5. Subject to what is stated above, the appeal is - 3 - dismissed with no order as to costs. The sum of Rs.25,000/- deposited by the Appellants in this Court shall be transferred to the concerned Tribunal. JUDGE