N. Sreenivasa Naidu vs The New India Assurance Co. Ltd.

Ravi V. Malimath, J.—The case of the claimant is that on 30.1.2011, she and her husband were proceeding from Chintamani towards Bangalore in a Tata India Car bearing registration No. KA-02-N-8493. At about 7.30 p.m., when the car reached Shivanapura Gate, a private bus bearing registration No. KA-07-6800 came from Hoskote side towards Chintamani in a rash and negligent manner and dashed against the car. As a result, the claimant''s husband, Chinnappa and the driver died on the spot. The claimant-Kamalamma also sustained severe injuries. For the injuries sustained by her, she filed M.V.C. No. 2396/2011. For the death of Chinappa, his widow Kamalamma and the children filed M.V.C. No. 2397/2011. Both the petitions were heard together. In M.V.C. No. 2397/2011, the Tribunal in all awarded a compensation of Rs. 19,54,664/- alongwith interest. It held the owner of the bus liable to satisfy the award. The insurer was absolved from any liability. Aggrieved by the same, the owner of the bus has filed this appeal.

Sri Y.R. Sadasiva Reddy, the learned Senior Counsel appearing for the appellant''s counsel contends that the Tribunal has committed an error in foisting the liability on the owner of the vehicle and therefore prays for setting aside the impugned award.

The case made out by the claimant is that the car in which they were travelling towards Chintamani, near Shivanapura gate, a bus came from the opposite direction and dashed against the car. There is no dispute about the accident and the manner in which it occurred. The insurance policy is admitted. However, the Tribunal, on considering the evidence on record was of the view that there was no permit to ply the bus on the Hoskote-Chintamani road. Therefore, the Tribunal by placing reliance on the judgment of the Supreme Court in the case of National Insurance Co. Ltd. Vs. Challa Bharathamma and Others, and in view of the fact that the vehicle was being run without a permit held the same would amount to a violation of the terms of the permit and hence, the insurer was exempted from its liability to satisfy the award.

On considering the contentions as well as the reasoning of the Tribunal, we are of the view that appropriate relief requires to be granted. The judgment relied upon by the Tribunal in the aforesaid case is with reference to a case wherein three persons were travelling in an autorickshaw which met with an accident. Two of them lost their lives and one was severely injured. The insurer resisted the claim on the ground that the insured had not obtained the permit to ply the vehicle and therefore the terms of the policy of insurance having been violated, the insurer was not liable to satisfy the award. The said contention was accepted and it was held that it amounts to a violation of the terms of the policy.

However, the facts of the instant case are entirely different. The case made out is that the vehicle was brought from Chintamani to Hoskote for repair. When the bus was returning to Chintamani from Hoskote after repair, it met with an accident. The owner of the garage was also examined. His specific version is that the bus required certain repairs and therefore the same was brought to the garage. Though the vehicle was on the road and was brought from Hoskote, the evidence would show that there were no passengers in the bus and the vehicle was not used to carry any passengers. The evidence is clear to the extent that the vehicle was empty, as it was being brought from the garage after repair.

Under these circumstances, we are of the view that the judgment relied upon by the Tribunal would have no relevance to the facts of the present case. In the reported case, the passengers were travelling in an autorickshaw when the accident occurred. Therefore, at the point when the vehicle was travelling with passengers, the vehicle did not have a permit. However, in the instant case, when the evidence is clear to the effect that no passengers were being carried in the bus and the vehicle was not being used at that point of time to carry any passengers, but was being brought back from the garage, the question of violating the terms of the policy by the absence of any valid permit therefore would not arise for consideration. Therefore, since the vehicle did not have any passengers and was brought from the garage after repair, we are of the view that the liability foisted on the owner, on the ground that there is a violation of the permit, is unsustainable. The reasoning of the Tribunal on this ground therefore requires to be reversed. We are of the view that the insurer alone would have to satisfy the award.

The other reasoning assigned by the Tribunal is that the owner of the garage did not have a licence to run the garage and the Proprietorship Concern is not registered. We are of the view that whether the owner had any licence to run the garage or whether the partnership concern is registered or not would not be germane to consider the fact whether the vehicle was run without a permit. The fact is that the bus was empty and was taken for repair to the garage and was being returned after the repair had taken place. The status of the garage or that of its owner is inconsequential in determining the question of the violation of permit conditions. Therefore, the reasoning assigned by the Tribunal in foisting the liability on the owner of the vehicle on the ground that the owner of the garage did not possess a licence being not relatable to the issue on hand, the same requires to be reversed.

Section 66 of the Motor Vehicles Act, 1988 pertains to the necessity for permits. Clause (3)(p) is relatable to those situations wherein the provision of sub-section (1) cannot be applied. Sub-section (1) states that no owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place, etc. Sub-section (3)(p) narrates the provisions of sub-section (1), which shall not apply to the given case therein. In the instant case, sub-section (3) clause (p) would be attracted. The said provision is extracted hereinbelow:-

"66(3)(p):- to any transport vehicle while proceeding empty to any place for purpose of repair."

Therefore, the necessity for the vehicle to have a permit at the time when the vehicle is being plied while proceeding empty to any place for the purpose of repair would not attract the provisions of Section 66 of the Motor Vehicles Act, 1988. The evidence on record is clear with regard to the vehicle plying at a point of time empty and without any passengers. Therefore, the Tribunal committed an error in foisting the liability on the owner of the vehicle.

For the aforesaid reasons, this appeal is allowed. The judgment and award dated 28.9.2012 passed by Prl. Motor Accident Claims Tribunal, Court of Small Causes at Bangalore in M.V.C. No. 2397/2011 is modified. The liability foisted on the appellant is set aside and the insurer is held liable to satisfy the award of the Tribunal.