JUDGMENT :

Parth Prateem Sahu, J. - The appellants who are owner and driver of the offending vehicle have filed this instant appeal challenging the impugned award dated 29.11.2012 passed by the 4th Additional Motor Accident Claims Tribunal, Durg, in claim case No. 60 of 2012, whereby learned Claims Tribunal awarded Rs. 4,61,500/- towards compensation in favour of claimants- 1 to 5 and fastened the liability of payment of compensation to present appellants while exonerating the Insurance Company.

2. Brief facts of the case are that on 15.04.2008 at about 1 pm, Gokul Verma, husband of respondent- 1, father of respondents- 2 and 3 and son of respondents- 4 and 5 was travelling on Marshal Jeep bearing No.CG07-7605 and going towards Khairagarh from Bhilai driven by appellant- 2. On his way one Santro car tried to overtake his vehicle Marshal Jeep and at that time, the driver of jeep could not able to maintain his vehicle on road and met with accident. The jeep turned turtle and in the said accident, Gokul Verma sustained injuries and succumbed to said injuries at Sector-9 Hospital, Bhilai. On account of his death, respondents-1 to 5 have filed claim application claiming Rs. 32,38,000/- mentioning therein that deceased Gokul Verma is the sole bread winner of their family and all of them were dependent on his income.

3. Appellants- 1 and 2 submitted their reply to claim application and admitted the status of owner and driver of offending vehicle and further stated that on the date of accident, Gokul Verma was under employment of appellant- 1. Deceased was travelling on jeep owned by him, which was driven by appellant- 2 and going for the work of supervision of his wine shop. It has also been stated that one Santro car at the time of overtaking, came in front of jeep from one side and on account of which jeep turned turtle and Gokul Verma died. They further submitted that on the date of accident offending vehicle was insured with respondent- 6, United Insurance Company Limited. mac 271 of 2013

4. Respondent- 6 submitted its reply and stated that income of the deceased as pleaded was towards higher side and no document was submitted. The income could be assessed only Rs. 15,000/- per annum as per schedule. It has been further stated that offending vehicle has been insured as private vehicle and on the date of accident deceased was travelling as passenger and therefore, there was violation of conditions of Insurance policy. It was further pleaded that the accident is a result of negligence of drivers of both the vehicles and respondent- 6 can be held liable to the ratio of negligence on the part of the driver of jeep.

5. Learned Claims Tribunal on the basis of pleadings and evidence lead by parties and considering the documentary evidence available on record, allowed the claim of respondents- 1 to 5 and awarded Rs. 4,61,500/- but have passed the award against the appellants by exonerating the Insurance Company on the ground that on the date of accident offending vehicle was being used for commercial purpose.

6. It is this award passed by learned Claims Tribunal which is under challenge before this Court.

7. Learned counsel for the appellants submitted that offending vehicle was insured with respondent- 6 for the period from 28.07.2007, up to midnight of 27.07.2008. He further submitted that the policy taken by them was a private car package policy; deceased Gokul Verma was his employee and the vehicle on the date of accident was going for his personal /official work and therefore, it cannot be said that offending vehicle on the date of accident was being used as commercial vehicle and learned Claims Tribunal without considering the evidence of the nonapplicants, arrived at a wrong finding, which is not sustainable under law.

8. Learned counsel appearing for respondent- 6 submitted that as the deceased was not a family member of appellant 1 (owner) of offending vehicle and on the date of accident it was going to the place of business of the owne