Oriental Insurance Company Ltd. vs Kalu Ram

Rakesh Garg, J.—Respondent No. 1 filed the instant petition u/s 166 of the Motor Vehicles Act, 1988 claiming compensation to the tune of Rs. 15,00,000/- along with interest on account of injuries suffered by him in a motor vehicular accident on 18.8.2012 caused due to rash and negligent driving of respondent No. 2, which was owned by respondent No. 3. The said vehicle was duly insured with the appellant.

The claim petition was contested by respondents No. 2 and 3 by filing a joint written statement denying their liability to pay. Appellant also filed written statement raising various preliminary objections stating that the driver of the offending vehicle was not having a valid and effective driving licence at the time of alleged accident. It was also stated that insured has violated the terms and conditions of the insurance policy. Moreover, the FIR was not in accordance with law and vehicle in question was not involved in the accident.

No replication was filed.

From the pleadings of the parties, following issues were framed:-

Whether the accident in question resulting into injuries to petitioner took place due to rash and negligent driving of offending vehicle bearing registration No. HR-38-K-5383 by respondent No. 1? OPP

If issue No. 1 is proved, whether the petitioner is entitled to compensation. If so, to what amount and whom? OPP

Whether respondent No. 1 was not holding a valid and effective driving licence on the date of accident? If so, to what effect? OPR-3

Whether respondent No. 2 has violated the terms and conditions of the insurance policy, as alleged? If so, to what effect? OPR-3

Relief.

On the basis of evidence on record, the Tribunal held that the accident in question took place due to rash and negligent driving of offending vehicle by its driver. While reiterating the aforesaid findings, the Tribunal considered the evidence brought on record by the claimants. It is a matter of record that no witness appeared on behalf of the respondents to rebut the case of the claimants with regard to rash and negligent driving of the offending vehicle by its driver.

Issue No. 3 was not pressed on behalf of the appellant and thus, it was held that the driver of the offending vehicle was holding a valid and effective driving licence at the relevant time. Thereafter, Tribunal after considering the evidence and various factors determined compensation payable to the claimant at Rs. 3,95,926/- and further held that amount of compensation was payable by the owner, driver and the insured of the offending vehicle jointly and severally, further holding that Insurance company was liable to pay the compensation as there was a valid insurance policy and there was no violation of terms and conditions of the policy.

Aggrieved from the aforesaid award of the Tribunal, appellant has filed the instant appeal.

Learned counsel for the appellant has submitted that no liability can be fastened upon the appellant-Insurance Company as the owner of the vehicle was not having a valid permit to drive the vehicle on the road on the date of accident i.e. 18.08.2012 and thus, findings on issue No. 4 were liable to be set aside.

In support of his case, learned counsel for the appellant has also relied upon the judgment of Hon''ble the Supreme Court in the case of National Insurance Co. Ltd. Vs. Challa Bharathamma and Others,

I have heard learned counsel for the appellant and perused the impugned award and the judgment cited at the bar.

There is no dispute with the judgment of Hon''ble the Supreme Court in the case of National Insurance Company Limited vs. Challa Bharathamma and others (supra). No doubt defence is available u/s 149(2) of the Act to the Insurance Company deny its liability to pay, on the ground that owner of the offending vehicle was not having a valid permit on the date of accident. However, acceptability of such a defence is subject to the adjudication.

At this stage, provisions of Section 81(5) of the Motor Vehicle Act may also be noticed which read as under:-

(5) Where a permit has been renewed under this Section after the expiry of the period thereof, such renewal shall have effect from the date of such expiry irrespective of whether or not a temporary permit has been granted under clause (d) of Section 87, and where a temporary permit has been granted, the fee paid in respect of such temporary permit shall be refunded.

A perusal of the aforesaid provisions would show that once permit is renewed after the expiry of the period, the same is valid with retrospective effect.

In the instant case, following paragraph of the impugned award may be noticed:-

Now the question arises, as to who is liable to pay the amount of aforesaid compensation. Learned counsel for the petitioner has tendered into evidence the copy of registration certificate of the offending vehicle vide Ex. P12 and insurance policy of offending vehicle vide Ex. P9 which shows that respondent No. 2 is owner and respondent No. 3 is the insurer of the offending vehicle. However, learned counsel for respondent No. 3 submitted that since the offending vehicle did not carry the permit on the date of accident, therefore, insurance company is not liable to indemnify the insured. To prove this fact respondent No. 3 examined Sh. Surender Kumar Clerk as RW1 who deposed that he has brought the original permit register of vehicle bearing registration No. HR-38-K-5383, Ex-R1, as per which, no permit was issued regarding plying the vehicle on the public road in the year 2012. He further deposed that on 18.08.2012, no permit was issued against vehicle bearing registration No. HR-38-K-5383. On dated 26.07.2013, permit was issued from 27.06.2013 to 26.08.2018 after plying penalty. However, in his cross-examination, he has admitted that their authority has received the penalty of Rs. 71,625/- from the owner of the said vehicle which was valid from 08.09.2004 to 27.06.2013. Hence, from the cross-examination, it is clear that after payment of penalty of Rs. 71,625/- the aforesaid permit was valid up from 08.09.2004 to 27.06.2013. Hence, it is clear that on the date of accident, the offending vehicle cannot be presumed to be without valid permit. Therefore, learned counsel for respondent No. 3 cannot take much help from the case law titled as Jamil Khan vs. M/s. Bajaj Allianz General Insurance Company Limited 2013 (2) LJR 110, because in the aforesaid case, the offending vehicle was being plied without route permit in violation of terms and conditions of the insurance policy, but in the case in hand after payment of penalty the validity of the permit has been made effective from 08.09.2004 to 27.06.2013. Hence, respondent No. 1 being driver, respondent No. 2 being owner and respondent No. 3 being insurer of the offending vehicle are jointly and severally liable to pay the amount of compensation to petitioner. Hence, the findings on issue No. 2 are returned in favour of the petitioner and findings on issue No. 4 are returned against respondent No. 3.

A perusal of the aforesaid observations would show that no doubt at the time of accident permit was not renewed for the year 2012 regarding plying of the vehicle on the public road, however, the fact remains that the transport authorities had received penalty of Rs. 71,625/- from the owner of the vehicle in question and the said permit was valid from 8.9.2004 to 27.06.2013 and in view of the aforesaid fact and the provision of Section 81(5) of the Act, it could not be presumed that the offending vehicle was without valid permit. In fact, argument raised on behalf of the appellant is against the provisions of the Motor Vehicles Act, 1988 and is not available to the appellant-Insurance Company in the facts of instant case.

Thus, the plea as raised is without any substance.

No other argument is raised.

In view thereof, this appeal being without any merit is dismissed with costs which are assessed at Rs. 20,000/-. Let the costs be deposited within one month from today with the High Court Legal Services Committee.