- (1.) ONE Vinod Kumar (since deceased), aged 23 years in his capacity as an in jured filed a claim petition. The Motor Accidents Claims Tribunal, Udham Singh Nagar vide Judgment and Award dated 12-04-2002 allowed Vinod Kumar's claim petition and passed an Award of Rs. 3,33,340/- with interest in his favour and held respondent no. 3 United India Insurance Company Ltd. liable to pay the Award amount to the claimant. In A. O. No. 160 of 2002 filed by United India Insurance Company Ltd. in this Court, the aforesaid Award was challenged by the insurer to the extent and on the ground that because the owner had breached the policy con ditions, the owner should have been held liable to pay the Award amount and not the insurer.
(2.) IT was the admitted case of the parties in the Claims Tribunal as well as in this Court in the aforesaid Appeal that Vinod Kumar was travelling in the vehicle bearing Registration No. UP 022-7495 (Tata 709 Make) which was a Goods Carriage. Vide judgment dated 13th September, 2004 passed in the aforesaid A. O. No. 160 of 2002, the Insurer's appeal was allowed to the ex tent that even though it was directed to satisfy the Award initially and pay the Award amount to the claimant, at the same time, it was permitted to recover the Award amount from the petitioner, he being the owner of the vehicle in question because of the fact that the policy conditions were breached by him in as much as Vinod Kumar was travel ling as a passenger in a vehicle which was a Goods Carriage. Para 4 of the aforesaid judgment rendered in the appeal is apposite and I quote : "the learned counsel for the appel lant pressed the appeal on the grounds that the injured was travel ling in a Goods Carriage Vehicle as an unauthorized and gratuitous pas senger. Hence due to breach of specified condition of insurance policy, the insurer cannot be held liable and because the said vehicle Truck No UP-22-7495 was carrying 30 passengers at the time of the ac cident and, therefore, plied against the purpose not allowed by permit under which the vehicle was used, therefore, no compensation could be paid. Undisputedly, the petitioner was travelling in the said truck while going to Garjia fair, Ramnagar along with other persons. In the accident he sustained injuries and has be come hundred percent handicap. In this regard certificate issued by Chief Medical Officer, Rampur paper no. 24-C has been filed before the Tri bunal. " It was pursuant to the aforesaid observation contained in the judgment that respondent no. 3 filed application before the Tribunal for recovering the Award amount from the petitioner. The impugned order dated 05-06-2008 has been passed by the Tribunal, whereby and wherein, the Tribunal by holding that since Vinod Kumar was travelling as a passenger in a Goods Vehicle and because this resulted in the breach of policy conditions, the petitioner was liable to pay the amount in question to respondent no. 3. It is this order which is under challenge before this Court in the present petition filed Under Article 227 of the Constitution.
(3.) IN the written statement filed be fore the Tribunal in answer to the claim petition as well as the reply filed to the application filed by respondent no. 3, the petitioner no where pleaded nor averred that Vinod Kumar was travelling in the vehicle in question, not as a gra tuitous passenger, but as an owner of the goods he was carrying in the said truck. Mr. B. C. Pande, the learned Sen ior Counsel, appearing for the petitioner, submitted that the onus to prove and, therefore, to aver or plead the fact that Vinod Kumar was travelling in the truck in question as the owner of the goods was not upon the petitioner, but it was upon the Insurer and it is because of this that the petitioner did not plead nor aver this fact. I do not agree with this con tention.;