IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1331 OF 2007 WITH CIVIL APPLICATION NO. 1987 OF 2006 Mansing @ Ganpati Nivrutti Patil ..... ..... ...Appellant. V/s Sharada Madhukar Jagdale & Ors...... ..... ...Respondents. V.R.Mankapure, Adv. for the appellant. Mr.N.G.Ghotekar i/by S.Ghotekar, Adv. for the respondents. CORAM: A.P.DESHPANDE, J. 5th March, 2009. PC: By consent of parties appeal is taken up for final hearing. Heard. The present appeal is mainly directed against that part of the order passed by the Motor Accident Tribunal which permits the respondent-insurance company to recover the amount of compensation from the present appellant on account of breach of terms and condition of the policy. 2. The appellant is the owner of a tractor which was duly insured with the respondent No.3 in the appeal and this fact is not in dispute. The tractor which was carrying the trolley containing murum met with an accident with the motor cycle on 28.11.1998 at about 10.00 a.m. The motor cycle was being driven by the deceased on account of 1 whose death the claimants filed claim petition under section 166 of the Motor Vehicles Act, The trial court has recorded a categorical finding that the driver of the tractor was having a valid licence. An alternative plea was raised by the insurance company that in the event if it is so found after the evidence is recorded that the said vehicle was used for carrying goods or persons on hire or reward the insurance company be exonerated from the liability on the ground of breach of material condition of insurance policy as to use of the vehicle. Thus the burden was on the insurance company to establish that the term of the policy was breached. The appellant did produce on record a certificate of insurance which does not contain the terms and conditions of policy. For the reasons best known to the insurance company it chose not to file the insurance policy on record which contained the terms and conditions in regard to policy. Barring alternate plea which is contained in para 6B of the written statement there are no averments made in the written statement that the tractor and the trolley was given on rent or hire to third party and thus the said giving of vehicle on hire or rent constituted breach of material condition of policy. In the absence of any pleading about there being breach of condition which prevent the insurer to give the vehicle on rent or reward and moreso in the absence of terms of policy being placed on record it was not possible for the insurance company to discharge the burden to establish that the company is not liable to pay the compensation on account of breach of material term of the 2 insurance policy. No one has led any evidence on behalf of the insurance company. The only relevant evidence on record is that of the appellant who is the owner and driver of the tractor. Perusal of the evidence of the appellant reveals that his cross examination on behalf of insurance company is very cryptic and the same in substance is putting a suggestion to the appellant that he had given the tractor on rent for excavating murum which suggestion has been denied by the appellant. Though the suggestion has been so denied by the appellant the evidence led by the appellant has been construed by the trial court as an admission of fact that he has given the tractor on rent to the well owner where excavation work was going on. It is reiterated that the suggestion put to the witness/appellant that he had given the tractor on rent has been denied. However the denial of said suggestion has been taken as an admission by the trial court which has resulted in issuance of direction in favour of insurance company to recover the amount from the present appellant. The trial court has committed an error in appreciation of evidence, which is obvious. A denial of suggestion has been taken as an admission and barring the said so called admission there is absolutely no evidence on record either oral or documentary which can suggest that the appellant has admitted the fact that the tractor was given on rent. As stated herein above there is no material on record to conclude in the first place that the policy contained a clause that if vehicle is given on hire or reward the same shall be impermissible and in the second 3 place it has not been established by insurance company that the appellant has committed breach of material condition of the policy. As the impugned judgment and award passed by the M.A.C.T is wholly unsustainable in law as the same is passed on nonexistent peace of evidence, the judgment and award needs to be quashed and set aside to the extent it permits the respondent No.3-insurance company to recover the amount of compensation from the present appellant on the ground that there was breach of material term of policy. Partly allowing the appeal I quash and set aside that part of the impugned award which reads as under : “Opponent No.3 is allowed to recover the said amount from opponent No.1 as there is breach of terms of policy condition.” Parties to bear their own costs. Appeal stands disposed of accordingly. It is clarified that the rest of the award is maintained. In view of disposal of appeal Civil Application No. 1987/06 does not survive and the same also stands disposed of. 05.03.2009 4