Prashant Kumar, J. - (1.) THIS appeal is directed against the award dated 27"' of March 2010 passed by learned District Judge- cum-M.A.C.T. Godda in M.A.C.T. Case No. 8 of 2009 whereby and where under he directed the appellants to pay compensation to respondents No. 1-5 to the tune of RS 1 1,41,868/- with 6% interest from 28-2-2009 till the date of payment.
(2.) IT appears that this appeal filed after 41 days of expiry of period of limitation. However an application for condonation of delay filled. After hearing learned Counsel for appellant and perusing the application for condonation of delay, I find that appellant had shown sufficient cause which prevented it from filing of appeal within time accordingly delay in filing of appeal is condoned. Aforesaid award challenged by appellants - Insurance Company on the ground that at the time of accident, deceased was standing on the footboard of vehicle, though he was forbidden by the staff of the vehicle to do so. It is further stated that when driver lost control over the vehicle and suddenly applied break, deceased fell on the ground and received serious injury. Second ground of attack is that the driver had no valid license for driving a Bus i.e., passenger carrying commercial vehicle. Third ground of attack is that there was no permit for plying the said vehicle. So far first ground is concerned, I find absolutely no evidence on behalf of appellant (Insurance-Company) to prove the same. Even though, appellant examined one Arvind Kumar Sinha, O.P.W.1, but he stated nothing in this respect. Under the said circumstances, this fact has not been proved by the Insurance-Company. Sri Alok Lal however submits that applying the Principles of res ipsa loquitur it can be presumed that deceased was standing on the footboard of the vehicle, because it is not possible that a person standing and/or sitting inside the vehicle will come out of vehicle and sustain injury. In this regard it is worth mentioning that C.W.-1 (Asgari Begum) in her deposition had categorically stated that at the time of accident, deceased was sitting inside the Bus and the said statement of C.W.I came in her cross-examination. Thus aforesaid statement of C.W.I remains unimpeachable. Under the aforesaid circumstance, when there is positive evidence then it is not lawful to overlook such evidence on the basis of imagination or presumption. In this connection Sri Alok Lal relied upon the Division Bench Judgment of this Court in National Insurance Company Ltd., v. Most. Budhani Kisku and another 2008 (1) JCR 366 (Jhar.). The fact of this Case is different from the fact of aforesaid case. In that case, it is admitted by the claimant that deceased was sitting on the roof of vehicle, but in the present case, claimant stated in her evidence that deceased was sitting inside the Bus. Hence above decision has no application in the facts of this case.
(3.) NOW coming to the next submission that the driver had no valid license, it is worth mentioning that in the W.S., Insurance Company had accepted the pleading of claimants subject to verification of driving license. But no W.S. filed after verifying the driving license, stating that driver had no valid license. In course of argument. Sri Alok Lal submits that Insurance-Company appointed surveyor namely Arvind Kumar Sinha who made inquiry regarding license in D.T.O. Office and found that driver had no license for driving a passenger carrying commercial vehicle. Sri Alok Lal after verification of his own record fairly stated that on 13-6-2009 Surveyor submitted preliminary report regarding driving license of driver and in that report he stated that driver was authorized to drive L.M.V. M.M.V. H.M.V. and D.G.R. But surprisingly this fact has not been stated in the W.S., which was filed on 9-7-2009 much after the above report of Surveyor. Paragraph 10 of the judgment shows that Surveyor, (O.P.W.-1 Arvind Kumar Sinha) had deposed that driver was authorized to drive only L.M.V. M.M.V. H.M.V. and D.G.R., but in my considered opinion, aforesaid deposition and/or evidence of Arvind Kumar Sinha is beyond the pleading of Insurance-Company. Thus same cannot be looked into. So far contention of Sri Lal that the Bus was plying without any permit, it is stated that in this regard also there is no pleading. In W.S. at paragraph No.5 Insurance Company stated that as per law settled by the Apex Court, if a vehicle is being driven in violation of Insurance Policy, Insurance Company cannot be held liable to pay compensation. It is true that if it is proved that at the time of accident, vehicle was plied in violation of terms and conditions stipulated in the Insurance Policy, then Insurance Company is not liable. But in the instant case I find that there is no pleading by Insurance Company that any term and condition of the license has been violated, nor there is any specific pleading that the Bus was plying without any permit. Under the said circumstance, statement of Arvind Kumar Sinha O.P. W.1 that owner did not produce permit have of no consequence, because this part of the evidence cannot be looked into as the same is beyond the pleading. It has been held by Division Bench of this Court in the case of Oriental Insurance Company Limited v. Manorama Devi and others 2009 (ii) ACC 699, that if the Insurance Company did not lead any evidence to show that the vehicle was plied at the time of accident in violation of terms and conditions of license, then in that case Insurance Company cannot disowned liability to pay compensation.;