JUDGMENT : Rajesh Tandon, J.-Heard Mr. S.N. Babulkar, counsel for the appellant and Mr. K.K. Sah, counsel for the respondent. 2. Present appeal is preferred against the judgment and award dated 14.10.1998 passed by District Judge, Tehri Garhwal, thereby dismissing the suit of the plaintiff for recovery of Rs. 1,12,380.86. 3. Briefly stated according to the plaintiff he had been the owner of stage-carriage bus No. USO 839 since 1986. The said vehicle was insured with the defendant. On 20.3.1992 when the bus was going to Chamiyala, it met with an accident near Pilakhi and fell down into a ditch. In the accident 25 passengers along with the bus driver succumbed to the injuries sustained in the accident. According to the plaintiff in the accident, damages to the tune of Rs. 2,00,000 was caused to the bus. The plaintiff had furnished estimate and other documents to the officer concerned of the defendant. The plaintiff got the said vehicle repaired at the cost of about Rs. 1,30,000 and put forth his claim for compensation to the Branch Manager of the defendant, duly supported by all the original vouchers and receipts. The said officer fixed the amount of compensation due to the plaintiff at Rs. 84,500. The said officer assured the plaintiff that the bill was under preparation and that the payment would be made soon. Thereafter the said Branch Manager informed the plaintiff vide letter dated 16.7.1992 that they have found that the plaintiff has violated the terms of policy as also the provisions of Motor Vehicles Act, hence payment of compensation could not be made. 4. The defendant has filed its written statement admitting the accident and also the insurance of the vehicle with it by stating that the plaintiff has committed breach of the terms and conditions of the policy. The compensation claimed is highly exaggerated. The Branch Manager has rightly rejected the claim of the plaintiff and the action of the Branch Manager is justified. 5. On the basis of the pleadings the following issues were framed: (1) Whether the plaintiff-owner of the insured vehicle committed breach of insurance policy? If so, its effect? (2) Whether the suit is time-barred? (3) Whether the plaintiff is entitled to recover any amount from the defendant? If so, what amount? (4) Relief, if any? 6. 5. On the basis of the pleadings the following issues were framed: (1) Whether the plaintiff-owner of the insured vehicle committed breach of insurance policy? If so, its effect? (2) Whether the suit is time-barred? (3) Whether the plaintiff is entitled to recover any amount from the defendant? If so, what amount? (4) Relief, if any? 6. On the basis of evidence on record, the trial court has held that at the time of accident the bus was overloaded and it was being used by the agitators of anti-dam movement, therefore, the plaintiff-owner has committed the breach of the terms and conditions of insurance policy and also the provisions of Motor Vehicles Act and as such the plaintiff is not entitled to any compensation. It has also been held that the suit was not barred by limitation. Accordingly, the suit was dismissed. Feeling aggrieved the plaintiff-appellant has filed the present appeal. 7. The main contention of the respondent United India Insurance Co. Ltd. is that the plaintiff-owner of the bus met with accident had flouted the terms and conditions of the insurance policy. In para 46 of the written statement of the defendants-respondents has asserted as under: (46) That the vehicle was overloaded and the passengers boarded were travelling without tickets. The vehicle was carrying 70 to 80 passengers against the limit of 43 as such the claim is out of contractual liability which is a clear-cut breach of conditions of the policy. The defendant reserved all plea under Sections 47 and 60 of M.V. Act. 8. The issue No. 1 has been framed on the pleadings of the defendant-respondent. Thus, the burden to prove this issue lies on the shoulders of the defendant-respondent. Defendant-respondent examined DW 1, S.P. Bora, Asstt. Branch Manager, United India Insurance Co. Ltd., Muni-ki-Reti. This witness stated that after the accident 66 claims were filed against the insurance company, which shows that 66 persons were travelling in the bus at the time of the accident. The respondent did not make payment of the claim of the owner for damages to the vehicle as the owner has breached the terms and conditions of the insurance policy. 9. In his cross-examination DW 1 has stated that he was not present at the site of accident and he has No. personal knowledge regarding the alleged accident. The respondent did not make payment of the claim of the owner for damages to the vehicle as the owner has breached the terms and conditions of the insurance policy. 9. In his cross-examination DW 1 has stated that he was not present at the site of accident and he has No. personal knowledge regarding the alleged accident. He stated that summons were received in 66 cases from the court of Motor Accidents Claims Tribunal, Tehri Garhwal. The insurance company has contested all the cases. Those cases were decided on the basis of compromise in the Lok Adalat. He has also admitted that the dependants of the driver of the bus has also filed petition before the Workmen's Compensation Commissioner and the defendant-respondent has filed written statement in that court which is paper No. 53-C. DW 1, S.P. Bora has admitted that the defendant-respondent has not taken plea of overloading in that case. This witness has stated as under: (Omitted as in vernacular) 10. This witness has also proved that letter No. 28-C was issued from his office and in that letter No. specific terms and conditions of the policy has been mentioned, which is alleged to have been flouted. This witness has stated as under: (Omitted as in vernacular) 11. Thus, from the above statement of the Asstt. Branch Manager of the defendant insurance company, it is evident that the defendant-respondent has taken this plea as afterthought and has failed to prove that the plaintiff has flouted any specific term and condition of the insurance policy. 12. The trial court has relied upon the cross-examination of PW 1 plaintiff Kamla Prasad, but this witness has denied his personal knowledge regarding number of passengers travelling by the bus at the time of accident. In his cross-examination DW 1, Kamla Prasad has stated as under: (Omitted as in vernacular) 13. Ramesh Singh, the conductor was examined as PW 2. He has stated that the bus was plying from Tehri to Ghansali and at the time of accident there were only 35 passengers in the bus. In his cross examination this witness has stated that the bus was in booking for Uttarakhand anti-dam agitators. This witness specifically denied that there were 65 passengers in the bus. He stated in cross-examination as under: (Omitted as in vernacular) 14. In his cross examination this witness has stated that the bus was in booking for Uttarakhand anti-dam agitators. This witness specifically denied that there were 65 passengers in the bus. He stated in cross-examination as under: (Omitted as in vernacular) 14. District Judge was of the opinion that as the bus was plying for carrying the persons involved in the agitation of anti-dam movement and as such the plaintiff has flouted the terms and conditions of the insurance policy. 15. If the bus was hired for carrying anti-dam agitators to their homes, the bus was not involved in any illegal or antisocial activities and the plaintiff has not committed any breach of the terms and conditions of the policy. 16. From the above discussion it is evident that the defendant has failed to prove that plaintiff-owner of the vehicle involved in the accident has committed any breach of the terms and conditions of the insurance policy. 17. So far as the amount incurred in the repairing of the vehicle is concerned, the Assistant Branch Manager of the defendant has assured the plaintiff for making payment of the loss caused to the bus on the basis of survey report, i.e., Rs. 83,001.20. The copy of the survey report is paper No. 27-C on record and the defendant has not disputed the same. I, therefore, hold that the plaintiff-appellant is entitled to get Rs. 83,000 as compensation from the plaintiff. 18. In view of the above, the appeal is allowed with costs. The suit of the plaintiff is decreed against the defendant for the recovery of Rs. 83,000 along with pendente lite and future interest at the rate of 6 per cent per annum.