UNITED INDIA INSURANCE CO LTD Vs. PAVNI

JUDGEMENT

(1.) THIS appeal is directed against the judgment and award dated 15. 1. 1994 passed by Motor Accident Claims Tribunal, Barmer in Civil Misc. Case No. 3/92 whereby the Tribunal passed an award of Rs. 2,35,000/- in favour of the respondent-claimants No. 1 & 2 (hereinafter referred to as "claimants") along with interest and against the respondents No. 3 and 4 who are driver and owner of the vehicle involved in the accident and against the appellant United Insurance Company Ltd. (hereinafter referred to as "appellant" ).

(2.) BEING aggrieved by the judgment and award the appellant- insurer has preferred this appeal. Briefly stated facts which are necessary to dispose of this appeal are that a claim petition was filed by the claimants before the learned Tribunal claiming compensation for a sum of Rs. 6,10,000/- along with interest under Section 166 of the Motor Vehicles Act, 1998 (hereinafter referred to as "the Act" ). It was averred that on 12. 6. 1991 at about 12:30 PM Babu Lal wanted to board the Nishan Truck No. RJ- 04/g0036 while Thakara and deceased Babu Lal were in process of boarding the truck, at that time the driver of the said truck respondent No. 2 Piraram @ Hanumanram suddenly started and moved the said truck resulting thereby that Babu Lal was crushed under the rear wheel of the truck. He was taken to village Bhunia in very same truck and thereafter he was being taken to Barmer Hospital in a Jonga jeep. But while on the way to hospital, Babu Lal succumbed to injuries. It was further averred that deceased Babu Lal was 30 years of age and used to earn Rs. 50/- per day by doing the work of carpenter. As such his monthly income was Rs. 1,500/ -.

(3.) LEARNED Tribunal has framed issues No. 4 and 4-A on the pleadings of the appellant insurer and burden to prove these issues was squarely on the shoulders of the appellant insurer. Undisputedly, the appellant has not led any evidence and, therefore, issues No. 4 and 4-A have been decided against the appellant. There is no pleading and evidence to the effect that it was the insured owner of vehicle who violated the terms and conditions of the policy and that too wilfully and deliberately. Not only this the terms and conditions of the policy have not at all been pleaded by the appellant. So much so that the insurance policy has not been placed on record by the appellant and in absence of the contract of insurance it cannot be interpreted as to what were the terms and conditions incorporated in the policy. Since the terms and conditions of policy are also not on record, the question of their breach hardly arises.