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Judgment
Both these appeals raise common question of law as to whether the Claims Tribunal has been justified in exonerating the Insurance Company from its
liability to satisfy the award only on the ground that the offending Bus was not plied on a route for which a route permit has been issued by the
authority.
Another issue is in regard to quantum of the compensation.
As far as the first issue is concerned, it is contention of the learned counsel for the appellants that respondent no.2 had examined one Rishi
Shrivastava as DW2 from the Office of RTO, Gwalior, who deposed that Bus No.MP07/F1550 was earlier registered in the name of Swadesh
Sharma and after death of Swadesh Sharma, it was registered in the name of Anju Sharma. He further deposed that on the date of accident, i.e.,
28.04.2008, the Bus in question was not having route permit from Gwalior to Shivpuri. He had exhibited the route permit as Ex.D/11, which was from
Bhander to Dabra via Baswaha, vikar, Datia, Lala ka Taal, Chhoti Badoni, Sunawal, Sonagiri Tiraha, Sitapur, Upraye, Goraghad for one return round
per day and this permit was valid from 15.06.2006 to 14.06.2011. Similarly, Ex.D/10 was from Dabra to Gwalior via Pichhore, Jangipura, Patha,
Laghera, Lakhanpura, Rafadpur, Bilaua, Jaurasi, Anupura, Barri, Shithauli, Vicky Factory, Chetakpuri Gate with return circuit and this was valid from
06.06.2006 to 05.06.2011.Â
It is submitted that the Insurance Company had examined witness Umesh Swaroop Nigam, who was working as A.O. in the Divisional Office of
the Oriental Insurance Company and he has admitted in para 13 of his crossexamination that on Ex.D/1, Insurance Policy, no such condition is
mentioned that the said Bus will ply on which route. He further admitted that no notice was issued to the owner of the Bus. It is further submitted that
in para 23 of his cross-examination, he has admitted that no report of the Investigator Shri Rajpoot was ever filed on record. It is also submitted that
Investigator Shri Rajpoot, who had given a report that the route permit was not available, was not examined before the Court.
Learned counsel for the appellants has placed reliance on the provisions contained in Section 149 (2) (a) (i) (a) and (c) of the Motor Vehicles Act,
1988, to point out that as per subclause (a) of sub-Section 149 (2) (a) (i) claim could have been repudiated if a vehicle was not covered by a permit to
ply for hire or reward. As per sub-clause (c) the claim would have been admissible if vehicle would have been plied for a purpose not allowed by the
permit under which the vehicle is used. Placing reliance on said provisions of the Motor Vehicles Act, 1988, she submits that in fact, the claim should
be allowed inasmuch as there is plethora of law on the ground that absence of route permit will not be a disability inasmuch as Section 149 of the
Motor Vehicles Act talks of permit, but is silent about route permit.
She has placed reliance on the judgment of the Punjab & Haryana High Court in the case of Moti Ram v. ICICI Lombard & Others as reported in
2015 (1) TAC 618 (P&H), wherein it has been held that Section 2 (31) talks about permit only and Section 149 is also silent about route permit. There
is no requirement of law to possess a route permit and finding with regard to recovery rights given to Insurance Company were set aside.
Similarly, reliance has been placed on the judgment of the Punjab & Haryana High Court in the case of Mohinder Singh v. Lakhwinder Kaur &
Others as reported in 2018 ACJ 118, wherein it has been held that temporary straying from route permit is not a violation of a purpose of permit.
Geographic limitation of applicability of policy is also possible but there exists no such limitation of use in the insurance policy and what has been
pleaded is not an admissible defence provided under Section 149 and, therefore, it has been held that the Tribunal was not justified in granting recovery
rights to the Insurance Company. It has been held that the Insurance Company alone was liable.
Similarly, reliance has been placed on the judgment of the Punjab & Haryana High Court in the case of Mani Ram Aggarwal (deceased) through
his L.Rs. v. United Indian Insurance Co. Ltd. & Others as reported in 2017 ACJ 1082, wherein it has been held that if the truck was being operated in
the State of Haryana though it had route permit only for the State of Rajasthan, will not constitute violation of the terms and conditions of the
insurance policy and it is not a defence available to the Insurance Company. It has been held that recovery rights granted to the Insurance Company
are not justified and the Insurance Company has been held to be jointly and severally liable for payment of compensation.
Similarly, reliance has been placed on the judgment ofthe Punjab & Haryana High Court in the case of National Insurance Co. Ltd. v. Paramjit
Kaur & Others as reported in 2017 ACJ 635.
Reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. v. Challa Bharathamma &
Others as reported in 2004 ACJ 2094. In the said case, the Hon'ble Supreme Court has held that if the insured had not obtained permit to ply the
vehicle, then the Insurance Company is not liable. However, the Insurance Company was directed to deposit the amount and recover the same from
the insured by initiating proceedings before the executing Court. In para 10, the Hon'ble Supreme Court has referred to the judgment in the case of
National Insurance Co. Ltd. v. Nicolletta Rohtagi : 2002 ACJ 1950 (SC), wherein the Hon'ble Supreme Court observed as under :-
“To answer the question, it is necessary to find out on what grounds the insurer is entitled to defend/contest against a claim by an injured or
dependents of the victims of motor vehicle accident. Under Section 96 (2) of the 1939 Act which corresponds to Section 149 (2) of the 1988 Act, an
insurance company has no right to be a party to an action by the injured person or dependents of the deceased against the insured.
However, the said provision gives the insurer the right to be made a party to the case and to defend it. It is, therefore, obvious that the said right is a
creature of the statute and its content depends on the provisions of the statute. After the insurer has been made a party to a case or claim, the
question arises, what are the defences available to it under the statute? The language employed in enacting sub- section (2) of Section 149 appears to
be plain and simple and there is no ambiguity in it. It shows that when an insurer is impleaded and has been given notice of the case, he is entitled to
defend the action on grounds enumerated in the sub-section, namely, sub-section (2) of Section 149 of the 1988 Act, and no other ground is available
to him. The insurer is not allowed to contest the claim of the injured or heirs of the deceased on other ground which is available to an insured or
breach of any other conditions of the policy which do not find place in sub-section (2) of Section 149 of the 1988 Act. If an insurer is permitted to
contest the claim on other grounds it would mean adding more grounds of contest to the insurer than what the statute has specifically provided
for.Sub-section (7) of Section 149 of the 1988 Act clearly indicates in what manner sub-section (2) of Section 149 has to be interpreted. Sub-section
(7) of Section 149 provides that no insurer to whom the notice referred to in sub-section (2) or sub-section (3) has been given shall be entitled to avoid
his liability to any person entitled to the benefit of any such judgment or award as is referred to in sub- section (1) or in such judgment as is referred to
in sub-section (3) otherwise than in the manner provided for in sub-section (2) or in the corresponding law of the reciprocating country, as the case
may be. The expression ""manner"" employed in sub-section (7) of Section 149 is very relevant which means an insurer can avoid its liability only in
accordance with what has been provided for in sub-section (2) of Section 149. It, therefore, shows that the insurer can avoid its liability only on the
statutory defences expressly provided in subsection (2) of Section 149 of the 1988 Act. We are, therefore, of the view that an insurer cannot avoid its
liability on any other grounds except those mentioned in sub-section (2) of Section 149 of the 1988 Act.
Reliance has also been placed on the judgment of the Hon'ble Supreme Court in the case of Pappu & Others v. Vinod Kumar Lamba & Another
as reported in 2018 (1) TAC 360 (SC), wherein on facts, it was found that the offending vehicle was driven by a person who did not had any valid
driving licence at the relevant time, therefore, the directions were issued to the Insurance Company to pay in the first instance with liberty to recover
the same from the owner of the vehicle.
Appellants have also submitted that the quantum in M.A. No.979/2010 needs to be enhanced on the ground that the Claims Tribunal while deciding
the claim has not taken into consideration that the mother of the claimant was also dependent on him though not impleaded as a party and, therefore,
the deductions permitted to the extent of 1/3rd should have been in fact allowed to the extent of 1/4th. It is also submitted that the age of the deceased
has been wrongly taken as 37 instead of 35 and, therefore, wrong multiplier of 15 has been applied. It is further submitted that in the light of the law
laid down by the Hon'ble Supreme Court in the case of National Insurance Company v. Pranay Sethi only a sum of Rs.22,000/- has been awarded
under the conventional head, whereas it should have been Rs.70,000/-, therefore she is entitled to enhancement of award to the extent of Rs.48,000/-.
Similarly, in M.A.No.1089/2010, it has been submitted that the income of the deceased, who was admittedly running a Kirana shop, was construed
on the lower side to be Rs.3,000/-, whereas under the similar facts and circumstances, income should have been presumed to have been Rs.5,000/and
further wrong multiplier of 9 has been applied looking to the age of the mother of the deceased, whereas multiplier should have been as per the age of
the deceased and, therefore, multiplier of 15 will be applicable.
Learned counsel for the respondent-Insurance Company has submitted that as per the law laid down by this Court in the case of Ram Sujan
Tiwari v. Sita Gupta & Others as reported in 2009 ACJ 437 and the law laid down in the case of Pradeep Son of Sujanmal Jain v. Mangilal W/o Balu
Bhil & Others as reported in 2009 (II) MPJR 163 since the route permit was not available, therefore, the Insurance Company has been rightly
exonerated from its liabilities.
Learned counsel for the driver Shri Vinod Kumar Dhakad, on the other hand, submits that since the award has been passed against the driver, no
enhancement should be made.
As far as the first issue is concerned, with regard to liability of the Insurance Company, the Hon'ble Supreme Court in the case of National
Insurance Co. Ltd. v. Nicolletta Rohtati : 2002 ACJ 1950 (SC) has elaborately dealt with the scope of Section 149 (2) of the Motor Vehicle Act. It
has categorically held that the Insurance Company cannot avoid its liability on any other ground except those mentioned in subSection (2) of Section
149 of 1988 Act.
The Hon'ble Division Bench of this Court in the case of Ram Sujan Tiwari (supra) has not taken note of this judgment of the Hon'ble Supreme
Court. However, it has referred to para 12 of the judgment of the Hon'ble Supreme
Court in the case of National Insurance Co. Ltd. v. Challa Bharathamma & Others as reported in (2004) 8 SCC 517, wherein in para 12, the
Hon'ble Supreme Court has held as under :-
“High Court was of the view that since there was no permit, the question of violation of any condition thereof does not arise. The view is clearly
fallacious. A person without permit to ply a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition
thereof. Plying of a vehicle without a permit is an infraction. Therefore, in terms of Section 149 (2) defence is available to the insurer on that aspect.
The acceptability of the stand is a matter of adjudication. The question of policy being operative had no relevance for the issue regarding liability of
insurer. High Court was, therefore, not justified in holding the insurer liable.â€
Thus, the ratio of the judgment in the case of Challa Bharathamma (supra) is that the High Court erred in holding that since the offending vehicle
was not having any permit, therefore, the question of violation of any condition thereof does not arise. In this backdrop, the Hon'ble Supreme Court
held the view of the High Court fallacious and further held that a person without permit to ply a vehicle cannot be placed at a better pedestal vis-a-vis
one who has a permit, but has violated any condition thereof. It has, in continuation, mentioned that plying of a vehicle without a permit is an infraction.
Therefore, in terms of Section 149 (2), defence is available to the insurer on that aspect. When this complete decision is taken into consideration in
terms of the provisions contained in Section 149 (2) (a) (i) (a), then the requirement is that the defence available to the Insurance Company is
nonavailability of a permit to ply for hire or reward. When this is read with Section 2 (31) of the Motor Vehicles Act, 1988, which defines permit
means a permit issued by a State or Regional Transport Authority or an Authority prescribed in this behalf under this Act authorizing the use of a
motor vehicle as a transport vehicle, then it is apparent that the purpose of permit is to authorize a vehicle to be used either as a transport vehicle or as
a goods vehicle. Route permit has not been defined in the Motor Vehicle Act. There is no mention of words 'route permit' in Section 149 (2),
therefore, in the light of the law laid down by the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. v. Nicolletta Rohtagi (supra)
unless and until there is infraction of any of the conditions mentioned in Section 149 (2), defence is not available to the Insurance Company and,
therefore, the Punjab and Haryana High Court in the cases of Moti Ram (supra), Mohinder Singh (supra) so also Mani Ram Aggarwal (supra) has
laid down the law that where there was no violation of the terms and conditions of the policy and merely the vehicle operated on a route different from
the route permit, it will not constitute violation of the terms and conditions of the insurance policy.
But the fact of the matter is that as per the judicial discipline, the Division Bench decision passed by the Hon'ble Division Bench of this Court in
the case of Ram Sujan Tiwari v. Sita Gupta & Others as reported in 2009 ACJ 437 is binding on this Court as a Single Judge Bench. Therefore, this
Court in the terms of the said judicial discipline being bound by the ratio of the judgment laid down in the case of Ram Sujan Tiwari (supra), has to
bow down to the ratio and accept the proposition that even in case of violation of route permit, the insurer shall be exonerated from its liability to jointly
and severally satisfy the claim alongwith the owner. 20. However, in the light of the law laid down by the Hon'ble Supreme Court in the case of Pappu
& Others v. Vinod Kumar Lamba (supra), the award needs to be substituted to the extent that the Insurance Company shall satisfy the award and will
be entitled to recover the same from the owner of the offending vehicle.
Thus, In M.A.No.979/2010 (Claim Case No.190/2009), the claimants will be entitled to a further sum of Rs.58,000/under the other heads and
besides this, shall also be entitled to 40% increase in future prospects. Therefore, the claim amount will stand enhanced from Rs.8,11,995/- to
Rs.11,89,993/- inasmuch as on account of future prospects, there will be addition to the claim amount of Rs.7,99,995/-, which comes out to
Rs.3,19,998/-; besides this a sum of Rs.58,000/- under conventional head is to be added, which takes the total to Rs.3,77,998/-, when this amount is
added to Rs.8,11,995/-, then the total compensation will come out to Rs.11,89,993/-.
Similarly, in M.A.No.1089/2010 (Claim Case No.189/2009), the income of the deceased has been taken into consideration and it has been held that
though the legal heirs of the deceased have pleaded that deceased Arun Parashar was doing his own Kirana shop and was earning Rs.10,000/- per
month, but the monthly income has only been considered to Rs.3,000/- per month. Looking to the fact that the deceased was running a Kirana shop
and accident had taken place in the year 2003 and the Kirana shop was being run at Bhitarwar, which is a prosperous Tahsil of District Gwalior, even
if the criteria of minimum wages of skilled labourer is applied, then also the income at Rs.3,000/- per month has been taken on the lower side specially
when the respondents have not produced any evidence to rebut the contention of the appellant about such income of Rs.10,000/-. When the income of
a Mistry at Rs.200/- per day has been accepted, then there should not be any hesitation to presume the income of Kirana shopkeeper at Rs.5,000/- per
month and the Claims Tribunal itself has also mentioned that income of Rs.200/- per day would have been a normal notional income.
In view of such facts, this Court, on the basis of fact that the respondent-Insurance Company has not led any evidence as to the aspect of income
of the deceased, takes into consideration the notional income of the deceased @ Rs.5,000/- per month. On the basis of such presumption of income @
Rs.5,000/- per month, the annual income of the deceased will be Rs.60,000/- per annum. Since he was unmarried, the dependency will be treated at
50%, so it will come out to Rs.30,000/- annually and when a multiplier of 15 is applied, then it will come to Rs.4,50,000/-. Besides this, the claimants
shall also be entitled to 40% increase in future prospects, which will come out to Rs.1,80,000/- and under the other heads, the claimants will be entitled
to a further sum of Rs.58,000/-. Therefore,the claim amount shall stand increased from Rs.1,74,000/- to Rs.6,88,000/- in M.A.No. 1089/2010. Thus,
appeals are disposed off in above terms.