The absence of evidence for contract carriage usage invalidates claims of insurance policy breach, emphasizing that passenger status does not imply vehicle hiring.

JUDGMENT :

GAUTAM KUMAR CHOUDHARY, J.

Heard, learned counsel for the parties.

1. The appellants being the owner and driver of the offending vehicle are in appeal, against the judgment and Award of compensation dated 05.08.2016 passed by learned Principal District Judge- cum- MACT, Gumla, in M.A.C. Case No.4/ 2009 by which the liability to pay compensation has been fixed on them under Section 166 of the M. V.Act.

2. The facts of the case are not in dispute and not under-challenge that on 12.03.2006, that the informant along with other persons were travelling in Bus bearing Registration No.BR 41P -2904 which met with an accident in which the claimant- Belo Minz sustained permanent disability in the said accident.

3. The instant Misc. Appeal has been preferred mainly on the ground that the offending vehicle was under the insurance cover of Respondent No.1 [The Oriental Insurance Co. Ltd.] at the relevant time of accident and the liability has been saddled on the appellant No.1 only on the ground that the vehicle was not having a permit for contract carriage, which amounted to statutory breach of the terms and conditions of the insurance policy under Section 149(2) of the M.V. Act.

4. It is submitted on behalf of the appellant that it is not in dispute that the bus was plying under permit. Liability was saddled on the owner of the vehicle for the reason that the bus was taken on hire, for which it had no requisite permit.

5. It is argued on behalf of the appellant that the pleading of the Insurance Company was bereft of averment that vehicle had been taken on contract carriage for which it had no valid permit. No issue was framed on it and there is absolutely no evidence to suggest that vehicle was taken on hire on a contract carriage for carrying the Barat- party from Village- Pugu Khopatoli to Koinara Tongritoli.

6. Specific plea was taken on behalf of the Respondent- Insurance Company, regarding invalidity of the driving licence and, not that the vehicle was taken on contract stage carriage for which it was having no valid permit.

7. Learned counsel for the Insurance Company has defended the impugned order/ judgment, in which right of recovery has been given to the Insurance Company. It is submitted that in Para-8 of the written statement, it has been specifically pleaded that there was statutory violation of terms and conditions of the insurance policy as contemplated under Section 147 of the M.V. Act. It has come in investigation and in charge-sheet which (Ext.2), that the vehicle was not being plied under the Route permit, but was on way from Pugu Khopatoli to Koinara Tongritoli. It has also come in evidence that the victim was travelling as a member of Barat- party at the time of accident.

8. Having considered the submissions advanced on behalf of both the sides and the materials on record, it is evident that the vehicle, in question was having a valid permit and the same was adduced into evidence. There is absolutely no evidence that the vehicle was taken on contract carriage. Learned Tribunal misdirected itself to record a finding that it was taken on contract carriage only because some of the passengers were proceeding as Barat-party(s). Merely because some of the passengers of the bus were members of the barat party does not perforce lead to the conclusion that the entire bus was hired. There is specific pleading regarding breach of terms and conditions of the Insurance policy on the ground that the driver of the vehicle was not having the valid driving licence at the time of accident. However, such a plea is not taken with respect to valid permit of the bus. There is no specific denial as far as the pleadings are concerned and an evasive denials will amount to admission in terms of Order VIII Rule 3 CPC. So far as Ext.2 is concerned, it is certified copy of the charge-sheet in the connected Police case, which is not a substantive piece of evidence and it cannot be the basis to draw any inference regarding the fact in issue.

9. Th