SOW SUNDRABA Vs. CHAYA

JUDGEMENT

(1.) The appellant i.e. original respondent No.1 and the owner of the offending jeep involved in the accident, has preferred this appeal challenging the judgment and award passed by the learned Motor Accident Claim Tribuna, Ahmednagar (hereinafter referred to as the learned Tribunal) in M.A.C.P. No. 466 of 2006, whereby the learned tribunal has directed the appellant to pay compensation to the present respondent Nos.1 to 5 i.e. the original claimants by exonerating the present respondent No.2 - insurance company from the liability of paying compensation. During the pendency of this appeal, respondent No.4 - Bhaskar s/o Waman Sasane i.e. father of the deceased, expired and therefore, his name was deleted under the order dtd. 14/07/2017.

(2.) The appellant has fled this appeal only on the ground that the learned Tribunal has wrongly exonerated the insurance company from the liability of paying compensation without considering the nature of policy and without there being any evidence that the offending jeep was being driven at the relevant time for hire and reward purpose. The learned counsel for the appellant pointed out that the offending jeep was insured with respondent No.2 - insurance company at the time of accident under a comprehensive policy and therefore, the insurance company was certainly liable for paying compensation to the original claimants. He further, submits that the insurance company in its written statement had contended that the jeep was being used for hire and reward purpose at the time of accident and therefore, the burden of proving the said fact was defnitely upon the insurance company by leading satisfactory evidence. He pointed out that despite such defence was raised, the insurance company did not lead evidence. The appellant not being an eye witness of the accident, could not have been burdened to establish the said fact since it was not the case of appellant at all. The learned counsel for the appellant further pointed out that the learned Tribunal has drawn wrong inference that the deceased was a fare paying passenger only on the basis that the respondent No.1 had admitted that she was not related to the appellant.

(3.) On the contrary, the learned counsel for respondent No.2 - insurance company supported the impugned judgment and stated that the learned Tribunal rightly held that the deceased was a fare paying passenger at the time of incident and therefore, under the terms and conditions of insurance policy, his risk was not at all covered. In the alternative, the learned counsel for the insurance company submitted that if this court comes to the conclusion that the insurance company is also liable for paying compensation, then the pay and recover order be passed.