HON’BLE SRI JUSTICE A. SHANKAR NARAYANA M.A.C.M.A. No.1046 OF 2005 JUDGMENT: M/s National Insurance Company Limited - respondent No.2 in O.P. No.820 of 2002 on the file of the Chairman, Motor Accidents Claims Tribunal – cum – VI Additional District & Sessions Judge, Ranga Reddy District at Vikarabad (Fast Track Court) (for short ‘the Tribunal’), aggrieved by the order and decree, dated 29-01-2005, in the said O.P. passed by the Tribunal, the instant appeal is preferred on the ground that liability was fastened on it, despite the fact that there was violation of terms and conditions of policy so far as the purpose for which policy was issued to use the vehicle, which was Jeep bearing registration No.AP 28N 94. 2. The appellant herein is 2nd respondent – Insurer in the O.P. before the Tribunal, while respondent No.1 is petitioner and respondent No.2, who is owner of Jeep bearing registration No.AP 28N 94 is respondent No.1. 3. For the sake of convenience, the parties are hereinafter referred to as they were arrayed in the O.P. before the Tribunal. 4. The facts, in brief, are that on 17-02-2002, one Sathaiah, who is deceased herein, boarded a Jeep bearing registration No.AP 28N 94 at Pargi to go to his native village Kistapur, as the driver of the jeep was known to him, and since driver of the jeep, Palepally Ramulu, has driven the jeep at high speed in a rash and negligent manner, the deceased fell on the road near Thunkulagadda, Pargi at about 2.30 P.M., due to which, he received bleeding head injury. He was shifted to Government Civil Hospital at Pargi in the same jeep. The petitioner having learnt about accident, went to the Government Civil Hospital and found the deceased died. The elder brother of the deceased lodged a complaint with the police of Pargi Police Station and a case in Crime No.20 of 2002 was registered under Section 304-A IPC. i) The petitioner also states that the deceased was 22 years old and died in an unmarried status, earning Rs.100/- per day towards wages and contributing a sum of Rs.2,500/- per month for the family maintenance. The petitioner, who is mother of the deceased, claiming that she lost dependency, sought to pay a sum of Rs.2,00,000/- as compensation from respondent Nos.1 and 2, owner and insurer, respectively. 5. Respondent No.1, owner of the vehicle, remained ex parte before the Tribunal. 6. Respondent No.2, insurer of the vehicle, filed counter resisting the claim petition. It has taken the plea that the 1st respondent, owner of the vehicle, violated the terms and conditions of policy. It further stated that the deceased himself was negligent as he was travelling on the top of jeep and fell down from it and the inmates are all unauthorized passengers and not covered by the policy. Therefore, it sought to exonerate it. 7. Based on the pleadings, the Tribunal framed the following three issues about fixing responsibility for the accident. “1. Whether the accident is occurred on account of rash and negligence on the part of the driver of the crime vehicle Mahendra Jeep No.AP-28-N-94? 2. Whether the petitioner is entitled to compensation, if so to what amount and from which respondents? 3. To what relief ? ” 8. During inquiry before the Tribunal, the petitioner besides examining herself as PW.1, also examined an eye-witness to the occurrence, by name N. Balaiah, as PW.2 and marked Exs.A-1 to A-4. On behalf of the 2nd respondent, no witnesses were examined and no documents were filed. 9. The Tribunal, on appraisal of evidence on record through PW.2 and observing that there was chance for the deceased to sit on the top of the jeep, while accepting the evidence of PW.2, held issue No.1 in favour of the petitioner. On issue No.2, while answering the contentions raised by both sides, in the light of the evidence recorded by the Tribunal, and observing that though, three chances were given to the 2nd respondent for adducing evidence, but the 2nd respondent having filed a petition under Section 170 of the Act on 05-01-2005 annexing there-to a copy of policy, has reported no evidence and having discussed the contents of policy, admittedly, which was not marked at all, by taking into consideration that the policy was in subsistence, fastened liability on both the respondents to pay compensation which was arrived by the Tribunal, ordering them to pay a sum of Rs.1,24,500/- determined by it with interest at 9% per annum. 10. The Tribunal has also referred to the decision on which reliance was placed by the learned counsel for the petitioner in United Insurance Company Limited v. Gorla Shankar[1], as to violation of terms and conditions of the policy and mentioning that this Court in the said decision observed that in spite of violation of policy conditions and remedy of the insurer was only to recover the amount paid from the insured, somehow, fastened joint and several liability, without making any such direction. 11. Heard Smt. I. Maamu Vani, learned Standing Counsel for the appellant – 2nd respondent – Insurance Company, and Sri S. Surender Reddy, learned counsel for the 1st respondent – petitioner. The 2nd respondent - insured, though, served with notice, none appears for him. 12. It is the submission of learned counsel for the appellant – Insurance Company that the Tribunal went wrong in holding that the deceased was not travelling on the top of the jeep and ought not to have relied on evidence of PW.2, though, the very documents filed by the petitioner would reflect that the deceased was travelling on the top of the jeep. It is also her submission that there is clear violation of terms and conditions of the policy, as the jeep was insured as a private vehicle, but was being used as taxi at the relevant time and the very fact that the admission made by PW.2 that there were five or six passengers travelling in the jeep at the time of accident is sufficient enough to dismiss the claim petition against Insurance Company, as it reflects the violation of terms and conditions of the policy. The learned counsel for the 1st respondent – petitioner submits that the Tribunal has specifically observed that despite affording three chances to the 2nd respondent, it has not chosen to lead any evidence and on the other hand, having filed petition under Section 170 of the Act on 5-1-2005, the learned counsel for the Insurance Company reported no evidence and, therefore, the order of the Tribunal can not be faulted, as the burden lying on the 2nd respondent, was not discharged, in which case, the deceased can not be construed as an unauthorized passenger. It is also his submission that the petitioner can not be burdened with filing copy of policy and mark it, since the relevant particulars were already mentioned in the petition. 13. Perused the order and the evidence on record, both, oral and documentary, let in by the petitioner. What all exhibited on behalf of the petitioner was Exs.A-1 to A-4, which are certified copies of first information report; charge sheet; post-mortem examination report; and the accident report given by the Motor Vehicles Inspector, respectively. On behalf of the respondent No.2, no witnesses were examined and no documents were filed, despite taking a specific plea as to violation of terms and conditions of the policy. Thus, admittedly, the insurance policy was not marked and it was not as though, the policy was not filed. As per the very observation made by the Tribunal, copy of policy was annexed to the petition under Section 170 of the Act, in which case, the Tribunal ought to have marked it on consent, but somehow, omitted to do so. But, still, the Tribunal in paragraph No.14 discussed elaborately on violation of terms and conditions of policy, the plea, which the 2nd respondent – Insurance Company has put forth and even, placed reliance on the decision of this Court, as mentioned in the above, relied on by the learned counsel for the petitioner, besides touching the aspect of violation of terms and conditions of policy. Therefore, the approach of the Tribunal appears to be a total deviation of established legal principles, which it ought not to have adopted without marking the policy and exhibiting the same, despite receipt of it along with petition under Section 170 of the Act. 14. In that view of the matter, the order is liable to be set aside by remitting the matter to the Tribunal for proper appraisal of evidence by affording chance to both sides to lead further evidence, if any, by examining witnesses in the direction of marking the policy already filed along with petition under Section 170 of the Act. The amount which is deposited and withdrawn by the petitioner is subject to the decision of the Tribunal in the original petition and suitable direction to be given by it basing on the result in the original petition. 15. Hence, appeal is disposed of, setting aside the order and decree, dated 29-01-2005, in O.P. No.820 of 2002, passed by the Tribunal, by remitting the matter to the Tribunal for proper appraisal of evidence, with a direction to dispose of the same within a period of six (06) months from the date of receipt of a copy of this judgment, by affording chance to both sides to lead further evidence, if any, by examining witnesses in the direction of marking the policy already filed along with petition under Section 170 of the Act. However, it is needless to mention that the Tribunal shall dispose of the matter on merits uninfluenced by the observations, if any, made by this Court. There shall be no order as to costs. 16. As a sequel thereto, miscellaneous applications, if any, pending in the appeal, stand disposed of. _____________________ A. SHANKAR NARAYANA, J March 23, 2015. Mgr [1]. 2003 (2) ALT 596