APPELLANT HIGH COURT OF CHHATTISGARH AT Blt-ASPUR k fSB: Hon'ble Mr.T.P.Sharma.J.I IVIisc. Appeal N0. 420/2002. Har Prasad Mishra son of Amarnath Mishra, aged about 45 years, resident of village Barela, Tehsil Takhatpur.District Bilaspur, M.P. (CG) RESPONDENTS ORIGINAL CLAIIWANTS VERSUS 1. 2. ORIGINAL NON 3. APPLICANTS 4. 5. Ram Gopal Naidu son of late Kesho Rao Naidu, aged about 44 years, Assistant Line Man MPEB Smt. Shashikala Naidu, wife of Ramgopal Naidu, aged about 40 years Both residents of Tikripara,! Takhatpur, District Bilaspur,MP. Hanuman Prasad Vaishnava, aged about 30 years, son of Madan Vaishnav, resident of Purena, Tehsil Takhatpur, District Bilaspur, MP. Arun Kumar Patel son of Moolchand Patel, resident of village Douri, Tehsil Mungeli, District Bilaspur, MP The United India Insurance Company, Through Branch Manager, Dayalband, Bilaspur, MP, Mr. Malay Bhaduri counsel forthe appellant. None for respondents No. 1 to 4 though served. Mr. Dashrath Gupta counsel for respondents No.5 MISCELLANEOUS APPEAL UNDER SECTION 1730F THE IVIOTOR VEHICLES ACT (ORAL) O RO E R (05.03.2009) This appeal is directed against the award dated 8.5.2001 passed by the Motor Accident Claims Tribunal, Bilaspur in C.T. No. 1/1999 wherebytearned Tribunal has awarded a compensation of Rs. 57,000 in favour of the respondents 1 to 3 for the death of Dolli alias Shalini aged about two and half years at the relevant time. B :^^,stsa!..'. 'y A •;Sa—'''^" -2.— 2. Heard counsel for the parties and perused the award impugned and the t other material available on record. 3. Counsel for the appellant submits that the appellant is the owner of the offending tractor trolley bearing registration No. MP-26-B/3335,which was insured with the respondent No.5 on the date of accident. Learned Tribunal awarded the compensation of Rs. 57,000 for the death of Dolli alias Shalini aged about two and half years and thereby cornmitted an illegality in fastening the liability on the owner on the ground that the said tractor trolley was being used for the purpose other than the agricultural purpose for which it was insured. It is submitted that respondent No.5 has not adduced any evidence to the effect that the appellant was using the tractor trolley in violation of the condition of the insurance policy. At the time of accident, the tractor trolley in question was insured with respondent No.5 and therefore, it is liable for payment of compensation. 4. On the other hand counsel for the respondent No.5submitted that the appellant violated the condition of the insurance policy by using the tractor trolley in question for the purpose of transporting the food material of the Society instead ofthe agricultural purpose forwhich itwas insured, therefore, respondent No.5 is not liable for coffipensation. 5. Issue No.7 framed by the Claims Tribunal relates to the breach of condition of the insurance policy which reads as under: WT g'RT ^RT ^e-IT ^ TWT 3°RT qiOT ^ 3;RT ^fe-IT ^ WPT 3'RT qi?;T ^S ^MWSfi ^ ^ w if gcpit1! if wn ^n T?T qr, ^ w tf OT^T i; gpir gn- •^ qr, 31^0 % 3 ^ ?f at 3WBT SPIR'? WlRf ^, 'iftT "ll'l'bl'Q ^ ^RT ?T?'T ^ ^RT '^fSV ^> WPt 3'RT tfl<:ll'l|irl ^BT 3=RT WIFT, llt TT ^ir ;SIT T?T qr wr: ^ft fN?r ^ -STTO TO 4 ^fV =R"f=ft SlRl^ ^ f^I? vin1<<;l''!1 ^ tl 'B—ai 6. Burden of proving the fact that the appellant was using the vehicle in question in violation of the condition of the insurance policy was on the respondent No.5. Respondent No.5 has examiried C.J. Arora, Branch Managfer ofthe Insurance Company^NA-4W/1), B.S. Gambhir (NA-4W/2) and Sunil Kumar Tirkj (NA-4W/3). Mr. Arora has deposed that vehicle was insured for the agricultural purposes. Matter was examined by surveyor 8.S. Gambhir who vide report Ex. D-3. B.S. Gambhir has deposed in his evidence that theappellant was usirig fhe vehicle as goods carrier. Both these witnesses have not stated that they were present at the time of accident or they have seen the accident or that the appellant was using the vehicle for the purpose other than the purpose it was insured for. Appellant has examined himself. He has been cross examined by respondent No.5 but has denied the suggestion that at the time of accident the vehicle was carrying the goods of the society. 7. In this case, respondent No.5 has not examined any witness to show that at the time of accident the appellant was using the vehicle in violation of the condition of the insurance policy. Burden of proof regarding violation of the condition of insurance policy wason respondent No.5 but the respondent No.5 has utterly failed to discharge its burden. Vehicle was insured with respondent No.5 at the time of accident and therefore, respondent No.5 was liable for payment of compensation. Tribunal (las arrived at the conclusion that according to the report of the surveyor the appellant was plying the tractor trolley in qyestion in violation of the condition of the insurance policy but the surveyor was not in a position to say so as he was not the witness of the accident. The finding of the tribunal regarding violation of the condition of the insurance policy is not sustainable. -^- 8. In view of above.the appeal is allowed. It is directed that the respondent No.5 is liable to pay compensation of Rs. 57,0od tb the respondents No. 1 and 2 as awarded by the clgims tribunal. No order as t6 cbst. 9. In view of this order M (C) P No. 1035/2002 for stay stands disposed of. Sd/- T.P. Sharma ie —:t^<iB