United India Insurance Co. Ltd. vs Sohani and Others

Mahesh Bhagwati, J.—Challenge in this appeal is to the judgment and award dated 22.9.2011, whereby the learned Motor Accidents Claims Tribunal, Beawar, District Ajmer decreed an amount of Rs. 3,99,400 in favour of claimants-respondents and against the non-claimant-appellant. Adumbrated in brief, the facts of the case are that on 15.5.2009 at about 8.30 a.m., deceased Kesho Ram was going from his village to Beawar by Tempo bearing registration No. RJ 36-PA 0376. It is alleged that the driver of Tempo drove the same rashly and negligently at such a high speed that Tempo capsized before Narbad Khoda juxtaposed to Poonam Hotel. In this accident, Kesho Ram sustained grievous injury on his head which ultimately resulted into his death.

The claimants filed a claim petition before Motor Accidents Claims Tribunal, Beawar claiming compensation to the tune of Rs. 27,09,000. Learned Tribunal, having analysed the matter in detail, decreed an amount of Rs. 3,99,400 in favour of the claimants-respondents. Being aggrieved with the quantum of compensation, the instant appeal has been preferred by the insurance company.

Learned counsel for the appellant canvassed that at the time of accident, the offending vehicle was being plied on National Highway, whereas the permit was issued for plying the said vehicle within the municipal area of Beawar. Thus, at the time of accident, the insured vehicle was being used in breach of policy condition. Hence, the appeal needs to be allowed and the impugned award passed by the learned Tribunal deserves to be set aside.

Having heard the learned counsel for the appellant and carefully perused the relevant material on record, it is noticed that the principal seat of this court in the case of R.K. College Vs. Ramesh Chand and Others, , placing reliance on a Division Bench judgment of this court rendered in the case of National Insurance Co. Ltd. v. Mohani Bai, 2006 (1) MACD (Raj) 665, held that the insurer was liable to satisfy the award of compensation. The Division Bench of this court in the case of Mohani Bai (supra) held that unless there was some major deviation from the purpose in the matter of use, it cannot be said that there was breach of condition of policy.

In the case of Kesavan Nair Vs. State Insurance Officer , Justice Krishna Iyer of Kerala High Court observed thus:

(2) ...the argument is fallacious and confuses between the purpose for which the vehicle is used and the conditions subject to which such purpose is effectuated. The purpose of the stage carriage was to carry passengers and, in this case, it is obvious that the bus was carrying passengers. If it had been used not for carrying human beings but goods like a truck, there might have been user for an unwarranted purpose. On the other hand, if in carrying out the sanctioned purpose, namely, transporting passengers, any conditions are violated either by over-speeding or overloading, for example, there may be a violation of the conditions of the permit, but one cannot say that by that breach, the vehicle is used for a purpose different from the one authorised by the permit.

Adverting to the facts of the instant case, it is noticed that cover note of the insurance policy in question prescribes the limitation as to use. It envisages that the policy does not cover use for:

(a) Organised racing

(b) Pace making

(c) Reliability trials

(d) Speed testing

(e) Use whilst drawing a trailer except the towing (other than for reward) of any one disabled mechanically propelled vehicle.

It nowhere envisages that the vehicle in question could not have been plied outside the municipal area of Beawar. When there was no such limitation in the insurance policy, the argument put forth by the learned counsel for the appellant in this regard is found to be fallacious.

The second argument advanced by the learned counsel for the appellant is that the driver of Tempo was not authorised to ply the passengers in vehicle as he was given the licence to drive LMV type of vehicle. Despite there being a categorical licence to drive LMV type of vehicle, the learned Tribunal had observed against the record that there was no violation of the condition of driving licence.

The learned Judge of the Tribunal is found to have taken care of this argument also by observing that Tempo was registered as LMV vehicle. Since the driver possessed the driving licence to drive LMV type of vehicle, he had not committed any breach of condition of the driving licence. The observation of the Tribunal is found to have been based on the entries in the registration certificate of Tempo. Thus, this argument of the learned counsel for the appellant is also found to be fallacious, irrelevant and against the material on record. To sum up, it can safely be inferred that the Tribunal has rightly held that the defence of permit as also the defence of driving licence was not available to the appellant as the permit is very much on record and the driver of Tempo was authorised to drive the LMV type of vehicle.

For the reasons stated above, the civil miscellaneous appeal fails and the same being bereft of any merit deserves to be dismissed, which stands dismissed accordingly. Consequent upon the dismissal of civil miscellaneous appeal, the stay application filed therewith does not survive and that also stands dismissed.