(2 ^J- IN THE HIGH COURT OF JUDICATURE AT BILASPUR rCHHATTISGARHI >^'?-n MISC. APPEAL N0.' OF 2004 APPELLANT INSURER RESPONDENTS CLAIMANTS The Oriental vlnsu. Co. Ltd., through its Branch Manager, Itwari Bazar, Raigarh (C.G.), VERSUS .«:^\ >< .-A '^\.' <^^' ^y" ^' / ^ ^ > 1. Madhav Prasad s/o Visharabhar Prasad Bani, aged 55 years. Smt. Kailash Bai w/o Madhav Prasad, aged 50 years. Smt. Archana Kesarwani widow of late Ashok Kesarwani, aged 28 years. ,..4. Atul Kumar s/o late Ashok Kesarwani, aged 6 years. (Minor) S. Surbhi d/o late Ashok Kesarwani, S aged 4 years. (Minor) (Respondents no.4 and 5 minor through their natural guardian and mother Srat.Archana Kesarwani widow of late Ashok Kesarwani). (All respondents no. 1 to 5 r/o Baniyapara, Sarangarh, District- Raiearh.fCG). DRIVER OWNER 6. Bhuwneshwar Prasad s/o Noormani •5 Mehar, aged 30 years, r/ o village- Reda, Tehsil-Sarangarh, District- Raigarh (CG). ^—' "7, Narayan Prasad s/o Mohitram Dewangan, r/o Sarangarh, District- Raigarh (CG). APPEAL U/S 173 OF MQTOR VEHICLES ACT, AGAINST THE AWARD/ORDER DATED 27/3/2004 PASSED BY THE MOTOR ACCIDENT CLAIMS TRIBUNAL. RAIGARH IN C.T. N0.63/98. y^ Wi2 S^F ^%7V HIGH COURT OF CHHATTISGARH : BILASPUR Division Bench : Hon'ble Shri Nawal Kishore Agrawal and Hon'ble Shri R.L.Jhanwar, JJ. IVIisc. Appeal No. 867^of 2004 Appellant Insurer Resppndents Claimants The Oriental Insu. Co. Ltd., through its Branch Manager, Itwari Bazar, Raiaarh Versus Madhav Prasad and others. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT. 1988 Present: Shri Abhishek Sinha with Shri Ghanshyam Patel, counsel for the appellant. Shri N.P.Koshta, counsel for respondent No.7. ORAL ORDER (Passed on 10.02.2010) The following oral judgment of the Court was delivered by N.K.Agrawal, J. Heard on M.C.P.No.1178/2004, application for condonation of delay in filing the appeal. 2. On due consideration, we are satisfied that the appellant succeeded in explaining the cause for delay in filing the appeal. 3. Accordingly, M.C.P. is allowed and the delay in filing the appeal is condoned. 4. With the consent of the parties, the matter is heard finally at the admission stage. 5. This is an appeal filed by the insurance company against the award dated 27th March, 2004 passed in claim case No.63/1998 by the Motor Accidents Claims Tribunal, Raigarh (henceforth 'the Tribunal') whereby and whereunder the amount of Rs.6,69,000/- has been awarded in favour of the claimants holding the appellant liable for payment of compensation to the claimants. 6. Facts briefly stated are as under: ..,,'?t"t- y.^^ "\ '» t '&BSIiiis. K '::;S^^:;^S:kSi '^ "y y •^ ^a '•"ritiA^"' On 09.12.1997, Ashok Kumar along with other persons was coming from Bilaspurto Sarangarh in Jeep bearing registration No.M.P.26 E-5499 (henceforth 'the Jeep'). The said Jeep turned turtle between the village Chheend and Farsada due to rash and negligent driving by the driver and Ashok Kumar succumbed to the injuries sustained by him in the said accident. 7. The claimants claimed a sum of Rs.35,00,0007- as compensation against the driver, owner and insurance company of the said Jeep for the death of the deceased Ashok Kumar in the said accident. The appellant - Insurance Company by filing its written statement took a plea that the said Jeep was being plied in breach of terms of insurance policy at the time of accident inasmuch as the same was being used for carrying 'Baaratf, and therefore, the appellant is not liable to indemnify the owner ofthe vehicle. 8. The Claims Tribunal ona close scrutiny of the evidence led, on appreciation of the material placed on record, and submissions made by the learned counsel for the respective parties passed the order awarding Rs.6,69,000/- along with interest @ 9% per annum from the date of applicationtill its recovery in favour of the claimants and also holding the appellant- Insurance Company liable for its payment. Hence, this appeal. 9. Shri Abhishek Sinha with Shri Ghanshyam Patel, learned counsel for the appellant would submit that the said Jeep was being plied in breach of the condition of the policy at the time of accident inasmuch as the same was used as a taxi whereas the vehicle was registered and insured as private vehicle, therefore, the insurance company is not liable. 10. Per contra, Shri N.P.Koshta, learned counsel for respondent No.7 - owner would submit that the said Jeep was not used as a taxi at the time of accident; the Jeep was carrying the family persons of the owner; the Insurance Company did not examine any person to prove its defence, therefore, the Tribunal has rightly fastened the liability upon the appellant and the same deserves to be upheld. 11. We have heard learned counsel for the parties and perused the order impugned passed by the Tribunal. vy' s;,' ^ 1 • 12. Indisputably, the policy of insurance issued for the offending vehicle is a comprehensive policy which also covers the risk of occupants of a private vehicle. The appellant - Insurance Company did not adduce any evidence so as to show the use of the vehicle as a taxi at the time of accident. It is trite law that the burden to prove defence taken by it under Section 149(2) of the Motor Vehicles Act is upon the appellant - Insurance Company. In the instant case, the appellant - Insurance Company has utterly failed to prove the same. Learned counsel for the appellant could not point out any material to show the use of Jeep as a taxi at the time of accident. Therefore, in our considered opinion, the Tribunal has not committed any illegality or irregularity in fastening the liability of compensation upon the appellant. 13. For the foregoing, we do not find any substance in this appeal. Accordingly, this appeal being devoid of substance is liable to be and is dismissed. ,- -Ti ! sdA Ij R.L.Jhanwar N.K.AgrawaJ ^ j Judge Judge y