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Judgment
G.R. Majithia, J.—The Appellant New India Assurance Company has come up in appeal against the award of the Motor Accident Claims Tribunal, Hoshiarpur awarding compensation to the extent of Rs. 84,000/- in favour of the claimants, Respondent Nos. 3 to 8.
The facts:
Ilma was husband of Respondent No. 3 and father of Respondent Nos. 5 to 8 and son of Respondent No. 4. He boarded bus bearing registration No. PBA-3170 on July 10, 1985 at Mukerian. He had gone on the roof of the bus to place luggage there and his companions were handing him their luggage. The bus driver started the bus despite the protest of the companions of the deceased. Another bus followed the bus bearing registration No. PBA-3170. Respondent No. 1 did not allow the other bus to take over. He suddenly turned his bus towards the extreme left side of the road. A branch of the tree struck Ilma deceased who fell down from the bus and died. The owner of the bus and the Appellant contested the claim application. The owner of the bus pleaded that Ilma deceased went to the roof of the bus without getting a ticket and without the consent of the conductor and died as a result of his own negligence. The Appellant filed separate written statement pleading that the accident did not take place as a result of rash and negligent driving of the vehicle by Respondent No. 1. The pleadings of the parties gave rise to the following issues:
(1) Whether on 10-7-1985, Puran Chand Respondent caused vehicular accident by his rash and negligent driving of Bus No. PBA-3170 in the area of village Sandhwal on the Mukerian Talwara Road? O.P.P.
(2) Whether Ilma died as a result of injuries sustained by him in the aforesaid accident? O.P.P.
(3) Whether the claimants are entitled to compensation on account of loss of life of Ilma. If so, to what amount and from which of the Respondents?
(4) Relief.
Under issue No. 1 the Tribunal came to the conclusion that the accident was caused as a result of rash and negligent driving of the vehicle by Respondent No. 1. Issue No. 2 was also found in favour of the claimants and it was held that the claimants are entitled to Rs. 84,000/- by way of compensation.
In appeal, the learned Counsel for the Assurance Company submitted that the Appellant is liable only to the extent of third party liability mentioned in the policy of insurance and as per terms of the policy in case of an accident the insurer is liable to indemnify the insured in the sum of Rs. 15,000/- in respect of each passenger. The counsel submits that in view of this limited liability the Tribunal was in error in allowing the compensation beyond Rs. 15,000/ against it. He further submits that the Assurance Company is not liable when the insured commits breach of the terms of the policy. The terms of the policy did not permit that a passenger could sit on the roof of the bus.
None of the submissions made by the learned Counsel is sustainable. The accident took place on July 10, 1985. The Appellant produced on record the insurance policy Ex. R/1 covering the period from June 26, 1984 to June 25, 1985 regarding vehicle bearing registration No. PBA-3170. The policy of insurance for the period June 24, 1985 to June 25. 1986 was not proved. The Appellant did not dispute that the vehicle was insured with it but it only disputed that its liability was limited to the extent specified in the policy. The policy covering the relevant period was not produced for the reasons best known to the Appellant. In the absence of the policy it cannot be urged that the terms of the policy for the period after June 25, 1985 were the same as for the period June 26, 1984 to June 24, 1985.
The second submission is equally untenable for want of policy of insurance. Section 96(2)(b)(ii) of the Motor Vehicle Act extends immunity to the Insurance Company if it establishes that there has been a breach of a specified condition of policy by the insured. It must be established that the insured was guilty of violating the provision or infringement of the contract. The Appellant failed to discharge the statutory burden imposed on it.
The learned Counsel for the Appellant did not dispute the accident or the manner in which it had taken place. He also did not dispute the quantum of compensation awarded to the claimants. His only dispute was that its liability is limited to the extent mentioned in the insurance policy and that the Assurance Company was not liable when the vehicle was being driven in breach of the terms of the policy. Both these grounds are unsustainable for the reasons stated above.
This appeal is without any merits and the same is dismissed with costs. Counsel fee assessed at Rs. 500/-.