HIGH COURT OF JUDICATURECHHATTJSGARH : BILASPUR DIViSION BENCH HON'BLE SHRI H.L. DATTU, CJ & HON'BLE SHR! V.K. SHRIVASTAVA, J. Misc. Appeal (C) No. 285 of 2006 Owner of the vehiele Respondents/ Claimants Respondent/ Kuleshwar @ Raju, S/o Shri Lalaram Sahu, Owner of Vehicle, Tractor No.CG-05-B- 6192 along with Troliey No.CG-OS-B-6193, R/o Village Nawagaon, Thana Magarlod, Tehsll & District Dhamtari Non-Appiicant No.2 Versys 1. Firanta Sahu, Slo Kariya Sahu, aged about 70 years. 2. Smt. Radhiya Bai Sahu, W/o Firanta Sahu, aged about 65 years. 3. Smt. Budhiyarin Bai, Wd/o Kalyan Sahu, aged about 25 years. 4. Hemnarayan, S/o Kalyan Sahu, aged about 6 years. 5. Bhagirathi, S/o Late Kalyan Sahu, aged about3 years. No. 4 to 5 minor sons of Kalyan Sahu, through mother Smt. Budhyarin Bai Sahu, Wd/o KalyanSahu. Ali Agriculturist, All R/o Village Lafandi, Tehsil Rajim, District Raipur (CG). Claimants 6. Cheman Lal, S/o Harkhuram Tafak, aged about 30 years, Driver, .Tractor No.CG-05-B- 6,192 along with Trolley NO.CG-05-B-6193), R/o Viilage Lafandi, Tehsil Rajim, Dtetrict Raipur (CG). Non-applicant No.1 Respondenf/ Insurer ofthe vehicte 7. The New india Insurance Company Limited, Vikas Pradhikaran Bhawan, Bajrang Market, Raipur, Tehsil & District Raipur (CG). Non-applicant No.3 Claimants Present:- Shri Sumesh Bajaj, counsel for the appeilant. None for the respondents. Misc. Appea! (C)No. 102 of 2007 1. Firanta Sahu, S/o Late Kariya Sahu, aged about 70 years. 2. Smt. Radhiya Bai Sahu, W/o Firanta Sahu, agedabout 65 years. 3. Smt. Budhiyarin Bai Sahu, W/o Late Kalyan Sahu, aged about 25 years. 4. Hemnarayan Sahu, S/o Late Kalyan Sahu, aged about 6 years. 5. Bhagirathi Sahu, S/o Late Kaiyan Sahu, aged about 3 years. [Appellant No.4 & 5 minor on through their legal guardian mother appeliant No.3 Smt. Budhiyarin Bai Sahu] Occupation - All Agriculturist, Ail R/o Viiiage Lafandi, Tehsii Rajim, District Raipur (CG)':' Versus 1. CHeman Lal Tarak, S/o Harkhuram Tarak, aged about 30 years, Occupation - Driver (Vehicle Tractor bearing registration No.CG-OS-B-6192 with Trolley No.CG-05-B- 6193), R/o Viliage Lafandi, Tehsil Rajim, District Raipyr Reseondente Non-Ciaimants —-jr\_-_„ 3. Kuleshwar Sahu @ Raju, S/o Lalaram Sahu, Owner - (Vehicle Tractor bearing registration No.CG-05-8-6192 with Troliey No.CG-05-B- 6193), R/o Village Nawagaon, Polics Station Magartod, Tehsit Dhamtari, District Dhamtari (CG). The New India Insurance Company Limited, through Divisional Manager, Development Authority Bhawan, Bajrang Market, Raipur, Tehsii & District Raipur (CG). Present:- Shri Shivendu Pandya, counsel for the appellants. None for the respondents. ORAL ORDER (Passed on 2na April, 2007) The following oral order of the Court was passed by Vijay Kumar Shrivastava, J. Both the appeals have been arising out of common award; therefore, both ofthem are taken togetherfor hearing and disposat. 2) First Additiona! Motor Accident Glaims Tribunal, Raipur, Link Court at Gariyaband (for short "the Tribunal"), vide award dated 17-7-2006 passed in claim case No.42/2006 allowed compensation of Rs.2,26,000/- in favour of claimants against non-claimants No;l;wid 2, who are driver and owner of the vehicle. Feeling aggrieved claimants have filed appeal under Section 173 of the Motor Vehicles Act, 1988 (for short "fhe Act, 1988").for enhancement ofthe compensation and also questioning the exoneration of Insurance Company from payment of compensation amount. Owner of the vehicie/non-ciaimant N&.2 also preferred an appeal questioning the quantum of compensation and exoneration of Insurance Company/non-ciaimant No.3 froni reimbursement of the compensation amount. --1-, : mo|sq se si psmotie uoiiesusdiuoo •siojqsA sqi ^o -ISUMO'PUB j6Aup SJB Q^M '2 pue |.'ON S}UBUJIB|O-UOU stj}}suieBe S}UBLU!B|O p jnDAe( ui uoitesuediuoa paMO||B pue souejnsui SL|I jo Aoijod 341 ^o uoseioiA ui pssn SJSM ASIIOJ} pue jopefl sqi luspiooe y> SLUI} 84} IB ysu^ Bujpioq Aueduuoo souejnsui si^ p3iej3uox& souepjAS sq} Suiieiaejdde jaye |eunquj. eqjL 'souspiAe Aje+usiunoop pue [ejo p&onppe esea jieifi p ^ioddns ui ssived eq? 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Love & Affection TOTAL 14,000=00 2,28,000=00 6) Leamed counsel for ttie claimants, during the course of arguments, did not question the amount of compensation and said that the compensation awarded is justand proper. His grievance is that non-claimants No.1 and 2 did not deposit the compensation amount so far. Learned counse! for the owner of the offending vehicte contended that the insurance Company did not plea the breach of poiicy in accordance with Order VI Rule 4 of the Code of Civil Procedure (for short "the Code"), therefore, he was deprived to meet the defence taken by the Insurance Company during the evidence stage. The compensation awarded by the Tribunal is a!so on higher side. 7) We havegone through the record of the Tribunal. Perusedthe award, documentary and oral evidence. From the evidence of Firanta Sahu (AW-1) and Leeladhar (AW-2), it was proved that deceased Kalyan Sahu was a labourer. Atthough it was not proved that deceased was getting the work daily, therefore, the Tribunal ailowed his income as Rs.1,500/- per month and after reducing 1/3 as his own expenses, assessed dependency Rs.1,000/- per month and by applying'the multiplier method recorded dependency of Rs.2,04,000/-. From the svidence on record, the finding of fact recorded by the Tribunal does not appear to be condeffinable. The Tribunal atlowed just and proper amount towards other, heads. So far as compensation aliowed by the Tribunal is Goncerned, claimants themselves does not challenge it during the course of arguments as unjust or improper and / ;J1* the challenge made by the owner does not appear to be acceptable in view of the aforesaid discussions. 8) Section 169 of the Act, 1988 prescribes summary procedure for enquiry of ciaims. Rules framed by the State for enquiry of ciaims by Claims Tribunat although made appiicable several provisions of the Code, but all the provisions of the Code have not been made applicable to be foliowed by the Claims Tribunal. Order VI of the Code also falls within those provisions, which are not made applicable to Claims Tribunat. Order VI Rule 4 ofthe Code reads as betow: "4. Particutars to be given where necessary.—Inall cases in which the party pieading relies on any misrepresentation,fraud, breach of trust, wilful defauit, or undue influence, and in ail other cases in which particulars may be necessary beyond such as are exemplified in 'the forms aforesaid, particulars (with dates and items if necessary) shali be stated in the pleading." From bare reading of the above provisions, it is evident that this is not a case of misrepresentetion, fraud, breach of trust, wilfu! default, or undue influence, but Insurance Company very specificaily tooka defence that in case breach of condition of policy, the company shall not be liable to pay the compensation amount. Pleading js fhere and only burden lies on the shoulder of Insurance Company is to-prove its pleading. It is not necessary that Insurance Company should prove its plea by introducing its own witnesses and it can prove its contention by evidence brought before the Tribunal by other parties a!so. 9) Here in the instant case, Firanta Sahu (AW-1) in his statement stated that deceased was ehgaged in transportation of murum, therefore, on the date of incident he was in the tractor trolLey^wbicJi- 'e', -i." ..-^ was carrying murum from Chaitra to Samhartera. He further deposed that the murum was transpQrted for construction of road. Leeladhar (AW-2) in his statement deposed that road construction at Samhartara was going on. For the said purpose murum was being transported and they were doing the work pf labourer in transportafion of murum and the tractor was transporting the murum to Samhartara where road was consfructed. Even owner of the offending vehicle Kuleshwar Sahu (NAW-1) in his statement deposed that on thedate of incident his vehicle was used for transporting murum. Undisputediy the truck and trolley was insured for agrieuitural purpose. From the oral evidence as stated above, it was established that thetruck and trolley was being used ror transporting the murum for construction of road. It is asciear as crystal that the truck and trolley was used for commercial purpose and in violation of the condition of the insurance policy, therefore, the Tribuna! while exonerating the Insurance Company did not commit any error or iilegality, which may call for interference ofthis Court. 10) !n view of the above, we are of the considered opinion that the finding recorded by the Tribunal against non-claimants No.1 and 2 are finding of facts and are recorded on the strength of legal admissibie evidence and those findings in no way can be coridemned. No interference of this Court is called for in the finding and award passed by the Tribunal, which does not suffer from any illegality or infirmity. 11) !n the result, both the appeals are liable to be dismissed and are accordingly dismissed. No costs. II . i l.O .< '_— . Sd/- V.K-Shrivastava Judge Sd/- Chief Justice