The burden of proof to establish exceptions to liability under an insurance policy lies with the insurance company.

JUDGMENT :

B.R. Sarangi, J. - This intra-Court appeal has been filed by the Insurance Company challenging the judgment and order dated 29.02.2000 passed by the learned Single Judge in M.A. No. 123 of 1993 confirming the award dated 28.11.1992 passed by the learned 3rd Motor Accident Claims Tribunal (MACT), Puri in MACT Misc. Case No.469 of 1986.

2. The factual matrix of the case, in hand, is that deceased Sachidananda Digal was travelling in a jeep bearing No. OSX-1897 from Bhubaneswar to Cuttack on NH-5 to discharge his official duty. The jeep met with an accident near Jayapur at 8.30 A.M., as a result of which, the deceased received injuries and was taken to Capital Hospital for treatment and thereafter he was shifted to S.C.B., Medical College and Hospital, Cuttack. Subsequently, he was treated at MMC, Hospital, G. Udayagiri and died on 16.09.1986 due to septicemia. The deceased was a young man of 28 years of age and was working under Swastik Trading Company as Sales Supervisor with a monthly salary of Rs. 1350/- and because of his untimely death, the legal representatives of the deceased have been deprived of the contribution of the deceased towards their maintenance. Therefore, the legal representatives have filed claim application under Section 110 (A) of the Motor Vehicle Act before the 3rd Motor Accident Claims Tribunal (MACT), Puri claiming compensation of Rs. 3,00,000/- for cause of death of the deceased due to motor accident.

3. On being noticed, the owner of the jeep filed written statement denying the allegations of the applicants stating inter alia that the deceased was working under him as Sales Supervisor with a monthly salary of Rs. 1350/- and he was no way connected with the company nor was he travelling in the jeep to discharge official duty. But, admitted the fact of insurance of the jeep with United Insurance Company covering the materials time under policy no.0340/22/1/01257 and filed such policy, which has been marked as Ext. A to the application.

4. The United Insurance Company has also filed its written statement denying the allegations on all material particulars as the same are not within its knowledge. It is further stated that in spite of best effort, it failed to trace out any such policy issued in respect of the offending jeep. The Insurance Company also challenged the age and income of the deceased and finally prayed for dismissal of the claim denying its liability. So far as the claim against Mahendra Kumar Mohanty, Driver is concerned, the same stands dismissed by the learned 3rd Motor Accident Claims Tribunal (MACT), Puri vide order dated 25.01.1988.

5. On the basis of the facts available on record, learned court below framed as many as five issues and examined five witnesses from the side of the petitioners as P.W.1 to P.W.5 and exhibited 15 documents, which have been marked as Ext.1 to Ext.15 and also Ext.A from the side of the owner of the vehicle.

6. After due adjudication, vide order dated 28.11.1992 in MACT Misc. Case No.469 of 1986, the learned 3rd MACT, Puri has come to a definite conclusion that the driver of the jeep was negligently driving the jeep in question for which it met with an accident, resulting injury to the deceased and subsequently he was succumbed to the same. The trial court has also examined other witnesses and having satisfied that the deceased was contributed to his family, awarded compensation of Rs. 1,02,000/- to petitioners no.1 and 2 together with interest at the rate of 9% per annum from the date of filing of the claim, i.e., 22.12.1986 within a period of three months, failing which interest would be payable at the rate of 12% per annum from the date of claim. It was further directed that the compensation amount would be kept in shape of fixed deposit.

7. Being aggrieved by the aforesaid order, the appellant challenged the order of the learned 3rd MACT, Puri before this Court, which has been registered as M.A. No.123 of 1993 and this Court after considering the conte