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TMI Blog2008 (12) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... asons in paras 43 44 of the award of the Tribunal, we find no ground to interfere in this matter. Dismissed. 3. Ordinarily we would have remitted the matter back to the High Court as the appeal of the appellant under Section 173(1) of the Motor Vehicles Act 1988 (for short `the Act) has not been considered on merit, but, keeping in view the fact that the respondent Nos. 1 to 6 being mother, brothers and sisters of the deceased having been awarded a total amount of compensation of Rupees one lac forty thousand only, we chose to hear the parties on merit. 4. The accident took place on 15th May, 2002 when deceased Sunil Kumar alongwith other injured persons, were travelling as members of a marriage party in a Tata 407 vehicle bearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.30 PM when the vehicle after crossing Railway Phatak of Dhalwas and were going towards Sehlanga due to rash and negligent driving of respondent No. 1, the respondent No. 1 lost control on the vehicle resulting to turn turtle and several persons suffered grievous injuries and deceased Sunil and one Photographer named Hazari died at the spot. On the statement of Rameshwar son of Akhey Ram, r/o. Mundhal Khurd, one of the eye witness and traveling as Barati FIR No. 98 dated 16.5.2002 was lodged against the respondent No. 1, which contains the detailed manner of accident how it took place and be read as part of this petition. The respondents being the driver, owner and insurer, are jointly and severally liable to pay compensation to the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f of the owner of the vehicle, on the other hand, submitted that it was for the insurance company to prove breach of conditions of the insurance policy and the same having not been done, the judgment of the Tribunal cannot be assailed. In this connection our attention has been drawn to the following findings of the Tribunal: In the present case the evidence on record indicates that deceased Sunil Kumar and other injured were occupying the offending vehicle as being representative of the owner of the goods. No evidence was produced on behalf of the Insurance Company to the effect that deceased and injured were gratuitous passengers.... All the injured petitioners were cross examined at length but nothing useful to the case of Insurance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he question as to whether burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers. As indicated hereinbefore, the First Information Report as such may or may not be taken into consideration for the purpose of arriving at a finding in regard to the question raised by the appellant herein, but, when the First Information Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entered into, nor was any premium paid to the extent of the benefit of insurance to such category of people. In National Insurance Co. Ltd. v. Cholleti Bharatamma and Ors. AIR 2008 SC 484, this Court categorically held: 27. The learned Counsel appearing for the respondent, submitted that from the aforementioned finding, it is evident that the respondent was travelling as the owner of the goods. We do not think that the said submission is correct. PW 2, in his evidence, stated: I am doing tamarind business. I witnessed the accident which took place about 3 years back at about 6 a.m. at Borrampalem junction beyond Talluru. At the time of the accident I was in the crime lorry by the side of the driver. Myself and 6 others were carryi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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