1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.2054 OF 2009 WITH CIVIL APPLICATION NO.6677 OF 2008 The Oriental Insurance Company Limited ..Appellant Versus Sau. Suvarna Jagdish Kolhe and others. ..Respondents ... Advocates appearing for : Appellant: Shri S.M.Godsay Respondents 1 to 4 : Shri R.D.Mane and Respondent 5 : Shri N.U.Yadav. ... CORAM : R.K.DESHPANDE, J. Dated : August 17, 2009 PER COURT :- 1. On 11.6.2009, this Court has passed an order on consensus of the parties that the matter shall be heard finally at the stage of admission itself. Accordingly, the respondents have waived service of notices in the matter. 2. Heard Shri Godsay, learned Advocate for the appellant, Shri Mane, learned Advocate for respondents 1 to 4 and Shri Yadav, learned Advocate for respondent No.5. 2 3. This appeal challenges the judgment and award dt. 12.10.2006 passed by the learned Ad-hoc Additional District Judge- IV and ex-officio Member of the Motor Accident Claims Tribunal, Osmanabad in MACP No.128 of 2003 filed by respondents 1 to 4 (claimants). By the said judgment and award, the Tribunal has awarded total compensation of Rs.2,00,000/- including the amount of no fault liability to the claimants and the appellant and respondent No.5, were held jointly and severally liable to pay the said amount along with interest at the rate of 7.5 per cent per annum from the date of registration of the petition till its realisation. Learned counsel for the appellant states that amount of Rs.25,000/- has been deposited in this Court towards statutory deposit on 16.6.2008 and the balance amount of Rs.2,03,285/- has been deposited in the Tribunal at Osmanabad on 11.4.2008. 4. By the impugned award, learned Member of the Tribunal has held that death of deceased Jagdish was caused as a result of accident occurred on 29.4.2003 involving tractor bearing No. MH-25-B-3589 and that the said accident occurred due to rash and negligent driving of the driver of the tractor. Respondent No.5 Rahul is the owner of the tractor. It is alleged that the deceased was traveling in the said tractor as a labour at the instance of the owner and he fell from the tractor and suffered severe injuries and ultimately died on the very same day i.e. on 29.4.2003. 5. The appellant insurance company raised a defence 3 that deceased was travelling on a tractor as a labour, which according to it, is an admitted fact. Learned counsel for the appellant produced on record the insurance policy, which according to him is also placed on record of the Tribunal. According to the learned counsel, policy covers only the risk of the driver and deceased was travelling in the said tractor not as a driver but as a labourer. According to learned counsel no premium to cover the risk of labourer was paid nor the policy covered the risk of such labourer. 6. The Tribunal has framed issue No.2 which reads as under:- " Does the opponent No.2 Insurance company prove that there is breach of condition of policy as contended?" The issue has been answered in negative. 7. While recording the finding on this issue, learned Member of the Tribunal has held that the facts on record show that deceased must have been engaged by respondent No.1 owner of the tractor for doing the labour work on the tractor and as a labourer he was sitting in the said tractor at the time of the said accident. He has further recorded a finding that in view of this, the deceased cannot be called as an unauthorised person or a passenger in the said tractor. Although the stand of the insurance company, that no additional premium was paid to cover the risk of labourer has been referred to in the judgment and award, learned 4 Member of the Tribunal has however, failed to record any specific finding on the issue whether policy, in fact, covered the labourers and that premium to cover the risk of labourer was paid. In the absence of such a finding, in my opinion, no liability can be fastened upon the insurance company. 8. It is no doubt true that the burden of proof is upon the insurance company to establish the grounds of defence. The insurance company has placed on record the insurance policy. However, it seems that no oral evidence is led by the insurance company in that respect. It is further seen that the policy is the farmer's package policy and relevant clauses of the said policy are also required to be considered before recording any such finding. In absence of any such finding, the learned Member of the Tribunal was wrong in fastening the liability on the insurance company. 9. In view of the above, the matter needs to be remanded back to the Tribunal for considering the question, whether the policy covers the risk of the labourers and whether the premium in respect of the labours was paid ? 10. The judgment and award passed by the Tribunal, therefore, is quashed and set aside. The Tribunal is directed to decide the matter afresh, after hearing the parties, as expeditiously as possible and within three months from the date of receipt of the order of this Court. 5 The amount of Rs.25,000/- lying in this Court is further directed to be remitted to the Tribunal for passing the appropriate orders. Appeal stands disposed of accordingly. No order as to costs. 11. In view of the disposal of the main appeal itself, Civil Application No.6677 of 2008 does not survive and accordingly stands disposed of. (R.K.DESHPANDE, J.) ... akl