Prashant Kumar Agarwal, J. - (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. 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 Dei died as a result of injuries sustained by her in a motor accident occurred on 18.5.1995 when she was traveling 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 traveling in the aforesaid vehicle alongwith 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 traveling 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 evidence available on record, the learned Tribunal came to a definite finding that the deceased Smt. Puran Dei and some other persons were traveling 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.
(3.) 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 traveling in the aforesaid vehicle alongwith 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 traveling 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 traveling 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 traveling alongwith her goods, the evidence produced before the Tribunal could not have been discarded.;