Court No. - 24
Case :- FIRST APPEAL FROM ORDER No. - 3038 of 2010 Appellant :- Reliance General Insurance Company Ltd.
Respondent :- Smt. Surij Kali & Others Counsel for Appellant :- S.K. Mehrotra Counsel for Respondent :- R.S.Chaudhary
Hon'ble Saral Srivastava,J.
Heard Sri S.K. Mehrotra, learned counsel for the appellant.
The present appeal is directed against the order/award dated 30.06.2010 passed by the court of the Motor Accident Claims Tribunal/Additional District Judge, Court No.3, Banda passed in M.A.C. No.313/70/2009.
Learned counsel for the appellant has submitted that the vehicle in question namely Bolero bearing registration no. UP-90E-0745 was insured for private purpose whereas it was used for commercial purpose. In this regard, he has placed reliance upon testimony of owner of the Bolero to contend that the owner has admitted in his statement that the deceased were not related to him, and if the Bolero was used for private purpose, then somebody who was unknown to the owner must not be occupation in the Bolero. Thus, the submission is that in view of the statement of the owner, it is established on record that the owner was using the Bolero against the terms and conditions of the insurance policy. He further submits that the compensation awarded is on higher side inasmuch as the deceased was Amin and there was no evidence on record to establish the income of the deceased and as such, the Tribunal has erred in holding the income of the deceased Rs.9450/- per month for the purposes of computing the compensation. Learned counsel for the appellant has also contended that since the vehicle was being used for commercial purpose, therefore, the driving license of the driver of the Bolero should contain endorsement by Transport Authority authorizing him to drive transport vehicle and as such, there was breach of policy.
I have heard rival submission of the learned counsel for the appellant and perused the record.
The Tribunal while deciding the issue no.3 with regard to breach of policy has recorded a specific finding that the Insurance Company did not lead any evidence to prove that the owner of bolero has committed breach of policy. Perusal of the written statement filed by the Insurance Company reveals that the Insurance Company has not taken any plea that the vehicle was insured for private purpose whereas it was used for commercial purpose at the time of accident. Further, the owner in his statement has categorically stated that he did not know that the driver of the bolero had charged any fare in the bolero. Since the Insurance Company has not taken any specific plea with regard to the breach of the policy that the vehicle was being used for the commercial purpose whereas it was insured for private purpose. The said plea cannot be permitted to be agitated in the appeal. The finding of the Tribunal on the issue of breach of policy is correct and based on material on record and the same is affirmed.
So far as the contention of the learned counsel for the appellant with regard to the driving license is concerned, the same is also misconceived for the reason that the Insurance Company did not contest the claim petition on the ground that the vehicle was being used for commercial purpose. Thus, the finding of the Tribunal that the driver of the Bolero was holding valid license is correct and the contention of the appellant that the driving license of the driver of the Bolero should contain endorsement authorizing him to drive transport vehicle is misconceived.
With regard to the income of the deceased, the Tribunal has relied upon the salary certificate issued by the Tehsildar. The appellant did not lead any evidence to rebut the salary certificate issued by the Tehsildar. Thus the finding of the Tribunal holding the income of the deceased to be Rs. 9450/- is correct and based on proper appreciation of evidence on record.
For the reason given above, the appeal lacks merit and is dismissed.
Order Date :- 12.9.2018 S.Sharma