The burden to prove violation of policy condition lies on the insurance company, and failure to provide evidence of policy violation can result in the dismissal of the appeal.

1. - This appeal has been preferred by the insurance company aggrieved by the award dated 17.10.1997 passed by the learned Motor Accident Claims Tribunal, Pratapgarh ('the MACT'), whereby an award of Rs. 1,50,000/- has been passed in favour of the claimants on account of death of one Devi Lal.

2. Brief facts of the case are that deceased Devi Lal was travelling in a Tractor No.RJH-6513, which was attached to a Trolly No. RJH-6514 as part of a marriage party. When the said vehicle reached village Gandher, another tractor being Tractor No.RJH-7287 attached with a Trolly No.RJH-7290 struck the trolly in which, deceased Devi Lal was travelling and the trolly turned turtle, whereby the said Devi Lal received grievous injuries and died.

3. The claim petition was filed by the legal representatives of deceased Devi Lal claiming a sum of Rs. 3,16,000/- for untimely death of deceased Devi Lal. The claim was resisted by the owners of both the vehicles as well as the insurance company, which happens to be the same, for both the vehicles.

4. It was submitted by the insurance company that from the tractor and trolly No.RJH-6513 and RJH-6514 no premium was charged for carrying passengers and, therefore, the insurance company was not liable. It was also stated that both the drivers were not having valid driving licence and, therefore, also the insurance company was not liable.

5. The Tribunal after evidence was led by the claimants and the owners of the tractors came to the conclusion that the accident occurred on account of rash and negligent driving of Jeevan Lal, who was driving the Tractor No.RJH-7287 rashly and negligently and, therefore, the owners of the tractors namely Bheru Lal and Girdhari Lal and so also the insurance company were liable for payment of compensation. While dealing with the issue relating to the liability of the insurance company based on the plea raised by the insurance company, the Tribunal came to the conclusion that no evidence was produced by the insurance company and it was incumbent on the insurance company to prove on record that the driver was driving the vehicle by violating the policy conditions and in absence thereof the issue related to violation of policy conditions was also decided against the insurance company.

6. Along with the appeal, an application under Order 41, Rule 27 CPC has been filed by the appellant-insurance company. In the said application it has been contended that the insurance company had undertaken the enquiry with regard to the licence said to be possessed by the driver Jeevan Lal of the offending vehicle RJH-7287 and it was found that the said licence was a fake document. In this regard the insurance company has filed a certified copy of the application filed before the learned Tribunal when the matter was being considered by 'Lok Adalat' and has also produced a letter dated 6.6.1994 written by a claim investigator, on which there is an endorsement by the Transport Officer. It is further contended in the said application that the said document could not be produced before the tribunal despite due diligence and they were important for just decision of the case.

7. It appears that the said application was not pressed at any stage by the appellant - insurance company, inasmuch as, the appeal is pending since 1998 and no notice of the said application was ever issued to the respondents. Even a copy of the said application has not been supplied to the learned counsel for the respondent. Even otherwise the fact that the insurance company was admittedly in know of the fact that the licence said to be in possession of the driver Jeevan Lal was allegedly a fake document way-back in the year 1994, they just did not lead evidence in this regard before the tribunal and thereafter now to press the said application alongwith a letter which pertains to the year 1994 before this Court, clearly shows that apparently the insurance company had abandoned the plea relating to the alleged fake licence