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2014 DIGILAW 1563 (RAJ)

Atar Singh v. Manohar Singh

2014-09-23

PRASHANT KUMAR AGARWAL

body2014
JUDGMENT 1. - Heard learned counsel for the parties. 2. The claimant-appellants have filed this civil misc. appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the "Act") against the judgment and award dated 30.6.2001 passed by the Judge, Motor Accident Claims Tribunal (Special Judge, Dacoity Affected Area), Bharatpur (hereinafter referred to as the "Tribunal") in MAC Case No.208/1995 mainly on the ground that the learned Tribunal has wrongly exonerated the respondent-Insurance Company from its liability to make payment of the amount of compensation as awarded by the Tribunal. 3. The brief relevant facts for the disposal of this appeal are that a claim petition under Section 166 of the Act was filed by the appellants with the averments that Smt. Puran died as a result of injuries sustained by her in a motor accident occurred on 18.5.1995 when she was travelling in a goods vehicle bearing Registration No.RJ-05-G-0907 and due to negligent and rash driving by the driver of the aforesaid vehicle the same was over-turned. The appellants filed the petition claiming that at the time of accident the age of the deceased was 45 years and she was earning Rs. 1,500/- per month by doing agriculture work. A sum of Rs. 8,40,300/- was claimed as compensation by the appellants. It is to be noted that in the claim petition, it was not averred by the appellants that at time of the accident the deceased was travelling in the aforesaid vehicle along with her some goods as owner thereof. The respondent-Insurance Company appeared before the Tribunal and filed written statement and mainly averred that at the time of the accident the deceased was travelling in the aforesaid vehicle as a passenger after paying fare for it. On the basis of pleadings of the parties necessary issues were framed and the question of liability to make payment of the amount of compensation to be awarded to the appellants by the respondent-Insurance Company was considered by the Tribunal under Issue No.4. On the basis of pleadings of the parties necessary issues were framed and the question of liability to make payment of the amount of compensation to be awarded to the appellants by the respondent-Insurance Company was considered by the Tribunal under Issue No.4. On the basis of evidence available on record, the learned Tribunal came to a definite finding that the deceased Smt. Puran Dei and some other persons were travelling in the vehicle involved in the accident as passengers after paying fare for it and as a goods vehicle was being used as a passenger carrying vehicle in violation of the terms and conditions of the insurance policy issued in favour of the owner/insured of the vehicle, liability to make payment of the amount of compensation cannot be fastened on the Insurance Company. With this finding the respondent-Insurance Company was exonerated from its liability to make payment of the amount of compensation. It was also ordered by the Tribunal that the amount of interim compensation of Rs. 50,000/- already paid by the Insurance Company to the claimant-appellants under Section 140 of the Act may be recovered by it from the owner of the vehicle. 4. Assailing the findings of the Tribunal under the aforesaid issue, learned counsel for the appellants submitted that although in the claim petition no averment was made to the effect that the deceased was travelling in the aforesaid vehicle along with her goods i.e. vegetables as owner of the same, but during trial reliable evidence was produced on behalf of the appellants showing that the deceased was travelling in the vehicle involved and was going from one place to another carrying vegetables with her to sell the same. It was further submitted that no evidence was produced in rebuttal on behalf of the respondent-Insurance Company showing that the deceased was travelling in the vehicle only as a passenger after paying fare for it. It was also submitted that in a claim petition filed under the provisions of Motor Vehicles Act, the relevant facts are required to be proved to the extent of probability only and, therefore, in the present case even if it was not pleaded in the claim petition that the deceased was travelling along with her goods, the evidence produced before the Tribunal could not have been discarded. 5. 5. On the other hand, it was submitted on behalf of the respondent-Insurance Company that the Tribunal has rightly held that as the deceased was travelling along with some other persons in a goods vehicle as passenger after paying fare for it, liability cannot be fastened on the insurer to make payment of the amount of compensation. 6. On consideration of submissions made on behalf of the respective parties and the reasons recorded by the Tribunal in support of its findings whereby the respondent-Insurance Company was exonerated from its liability to make payment of the amount of compensation as well as the well settled legal position, I find that no illegality or perversity has been committed by the Tribunal. It is an admitted fact that although it was averred by the appellants in the claim petition that at the time of the accident the deceased was travelling in the aforesaid vehicle, no further averment was made to the effect that she was also carrying goods i.e. vegetables with her as owner thereof and was going to some other place for the purpose of selling the same. It is well settled legal position that no evidence can be produced to support a fact for which pleadings have not been made and even if some evidence has been produced during trial the same cannot legally be considered by the Court. In the present case, a new story was developed by the appellants during the course of trial to the effect that the deceased was travelling with her goods and fare was paid not only for her travelling but also for the goods which she was carrying with her. In view of the above, the evidence so produced could not legally be considered. Apart from that even from the oral evidence produced on behalf of the appellants themselves, it is clear that the deceased and some other persons were travelling in the vehicle involved as passengers after paying fare for it. In view of the above, the evidence so produced could not legally be considered. Apart from that even from the oral evidence produced on behalf of the appellants themselves, it is clear that the deceased and some other persons were travelling in the vehicle involved as passengers after paying fare for it. It is well settled legal position that a goods vehicle cannot be used for carrying passengers from one place to another place and if any person dies or sustains injuries while travelling in such a vehicle as a passenger, the insurer is not liable to make payment of the amount of compensation to be awarded to the claimants and only the owner and driver of the vehicle are liable to make payment of the same. 7. Consequently, the appeal being meritless is, hereby, dismissed but without any order as to costs.Appeal dismissed. *******