An insurer remains liable for compensation to a deceased labourer in an accident unless it discharges the burden of proving a material breach of policy conditions, such as the absence of a valid driving licence or non-permitted carriage, which must be established by evidence, not mere assertion.

JUDGMENT :

NISHA M. THAKORE, J.

1. The present appeal is filed under section 173 of the Motor Vehicle Act, 1988 , at the instance of the insurance company being aggrieved and dissatisfied with the judgment and award dated 19th February 2015 passed by the learned Motor Accident Claim Tribunal Main, Narmada at Rajpipla in MACP number 197 of 2013. By the said judgment and award, the Tribunal has partly allowed the claim petition preferred by the original claimants under Section 166 of the Act, 1988 holding them entitled to seek recovery of a sum of Rs.8,23,000/- from the original opponents jointly and severally with interest at the rate of 9% from the date of filing of the claim petition till its actual realization, with proportionate costs.

2. Considering the submissions made by the learned advocate appearing for the appellant -Insurance Company and the grounds raised in the appeal memo, this Court vide order dated 6th July 2015 has admitted the appeal. In the interim application for stay, this Court had directed the applicant Insurance Company to deposit the entire award amount with the concerned Tribunal and had issued further directions for the release and disbursement of 20% of such deposited amount in favour of the original claimants and the remaining 80% of the amount was directed to be invested in a long-term fixed deposit with any nationalized bank in the name of claimants initially for a period of 3 years, which was further directed to be renewed from time to time till the final disposal of the captioned appeal.

3. Learned advocate Mr. MTM Hakim has entered appearance on behalf of the original claimants- respondent nos.1.1 to 1.3 and Mr. Jigar G Gadhvi, learned advocate, has entered appearance on behalf of respondent no.2- owner of the insured vehicle. With the able assistance of the learned advocate on record, the appeal was finally heard.

4. Learned advocate Mr. Rushang Mehta appearing for the appellant Insurance Company has vehemently assailed the impugned judgment and award mainly disputing the liability of the Insurance Company to pay any amount of compensation to the claimants. The attention of this Court was invited to the manner in which the accident was reported. Learned advocate had submitted that in fact the deceased was an unauthorized passenger on the insured vehicle. It was also contended that the driver of the insured vehicle has also unfortunately succumbed to the injuries sustained by him in the said accident. He was not holding any valid and effective driving license at the time of the accident. The attention of this Court was invited to the written statement filed by the Insurance Company at Exhibit.28. It was further submitted that considering the nature of the vehicle involved which is a tractor, even the RC book produced on record clearly suggests that except for the driver no person was permitted to travel on the tractor. Despite aforesaid defence being raised, the Tribunal has failed to frame a specific issue as regards the liability of the Insurance Company. It was further submitted that in the absence of any issue being framed, the Tribunal has committed a grave error in dealing with the aforesaid aspect. The attention of this Court was invited to the findings and reasons assigned by the Tribunal in this regard. It was submitted that the Tribunal has treated it as a case of a gratuitous passenger and by following the principles laid down by the Madhya Pradesh High Court in the case of New India Assurance Company Limited versus Girvarnath and others reported in 2