PANWAR, J. - (1.) THIS appeal is directed against the judgment and award dated 15. 1. 1994 passed by Motor Accident Claims Tribunal, Barmer in Civil Misc. Case No. 3/92 whereby the Tribunal passed an award of Rs. 2,35,000/- in favour of the respondent-claimants No. 1 & 2 (hereinafter referred to as "claimants") along with interest and against the respondents No. 3 and 4 who are driver and owner of the vehicle involved in the accident and against the appellant United Insurance Company Ltd. (hereinafter referred to as "appellant" ).
(2.) BEING aggrieved by the judgment and award the appellant- insurer has preferred this appeal. Briefly stated facts which are necessary to dispose of this appeal are that a claim petition was filed by the claimants before the learned Tribunal claiming compensation for a sum of Rs. 6,10,000/- along with interest under Section 166 of the Motor Vehicles Act, 1998 (hereinafter referred to as "the Act" ). It was averred that on 12. 6. 1991 at about 12:30 PM Babu Lal wanted to board the Nishan Truck No. RJ- 04/g0036 while Thakara and deceased Babu Lal were in process of boarding the truck, at that time the driver of the said truck respondent No. 2 Piraram @ Hanumanram suddenly started and moved the said truck resulting thereby that Babu Lal was crushed under the rear wheel of the truck. He was taken to village Bhunia in very same truck and thereafter he was being taken to Barmer Hospital in a Jonga jeep. But while on the way to hospital, Babu Lal succumbed to injuries. It was further averred that deceased Babu Lal was 30 years of age and used to earn Rs. 50/- per day by doing the work of carpenter. As such his monthly income was Rs. 1,500/ -. Respondent No. 3, Ganeshmal and appellant filed their written statements. On the pleadings of the parties, learned Tribunal framed the issues. Claimants produced PW1 Pavni widow of deceased Babu Lal, PW2 Dhanni, PW3 Thakara Ram who is an eye-witness of the occurrence and PW4 Krishna. The claimants have also placed on record the certified copies of the First Information Report Ex. A- 1, Charge Sheet Ex. A-2, Site Plan Ex. A-3 and Post Mortem Report Ex. A-4. I have heard learned counsel for the appellant as well as learned counsel for the respondents and perused the record. It is contended by the learned counsel for the appellant that the driver of the vehicle involved in the accident was not having valid driving licence as also vehicle was plying without permit. He further contended that the owner of the vehicle failed to intimate about the accident to the appellant insurer and as such insured has committed breach of specified condition of the policy. He further submitted that the vehicle involved in accident was a goods vehicle and the same was not authorised to carry the passengers. Learned counsel for the appellant submitted that the deceased was not a third party and, therefore, according to the provisions of Section 147 of the Act the appellant insurer cannot be held liable. It is further contended by the learned counsel for the appellant that the deceased was passenger in goods vehicle and, therefore, the Tribunal fell in error in holding that the appellant insurer is liable for the compensation.
(3.) LEARNED Tribunal has framed issues No. 4 and 4-A on the pleadings of the appellant insurer and burden to prove these issues was squarely on the shoulders of the appellant insurer. Undisputedly, the appellant has not led any evidence and, therefore, issues No. 4 and 4-A have been decided against the appellant. There is no pleading and evidence to the effect that it was the insured owner of vehicle who violated the terms and conditions of the policy and that too wilfully and deliberately. Not only this the terms and conditions of the policy have not at all been pleaded by the appellant. So much so that the insurance policy has not been placed on record by the appellant and in absence of the contract of insurance it cannot be interpreted as to what were the terms and conditions incorporated in the policy. Since the terms and conditions of policy are also not on record, the question of their breach hardly arises. In the instant case vehicle involved in accident as per its Registration Certificate Ex. 10 was Nissan Truck having registered laden weight 5375 kg. Copy of driving licence of the respondent Peeraram is also on record (C 20/4) which authorises him to drive light motor vehicle for the period from 22. 4. 1991 to 23. 7. 2010 issued by District Transport Officer, Barmer, "light Motor Vehicle" has been defined in Section 2 (21 of the Motor Vehicle Act, 1988, which means a transport vehicle or omnibus the gross vehicle weight of either of which or motor car or tractor or road roller the unladen weight of any of which, does not exceed 6000 kg (prior to amendment w. e. f. 14. 11. 1994) now amended to 7500 kg. w. e. f. 14. 11. 1994. Thus, it is clear that the vehicle involved in accident is Light Motor vehicle and the respondent driver had valid driving licence on the date of accident i. e. 12. 6. 1991 to drive the said truck. It has also been established from the material on record that the deceased Babu Lal was crushed under the rear wheel of the truck and, therefore, it cannot be said that he was not a third party. The law is settled on the point that other than the contracting party every person is third party. In the instant case appellant insurer and the insured are the contracting parties. Thus, appellant insurer is the first party and the insured owner of vehicle is second party and other than these two, every person is a third party, be that he may be occupant of the vehicle, pedestrian, or person outside the vehicle involved in accident etc. ;