Vinod Kumar and Others vs Kishan Devi and Others

Reva Khetrapal, J.—The Appellants in the present appeal are aggrieved by the award dated 20th April, 2007 passed by the Motor Accidents Claims Tribunal, Tis Hazari Courts, Delhi.

The facts relevant for deciding the present appeal are that the Respondents No. 1 to 4 filed a suit bearing No. 219/2005 praying for grant of compensation on account of the death of Shri Shyam Singh in a motor vehicular accident, the Respondent No. 1 being the widow of the deceased and the Respondents No. 2 3 and 4 being his two sons and daughter. By its award dated 20.04.2007, the learned Tribunal awarded compensation to the Respondents No. 1 to 4 in the sum of ` 2,51,200/- with interest at the rate of 8% per annum on the said amount from the date of filing of the suit, i.e., 22.01.2004 till the realization of the awarded sum.

The sole ground on which the award has been assailed is that the Tribunal erred in holding that the Respondent No. 5 - Insurance Company though initially liable to pay compensation to the Respondents No. 1 to 4 would have the right to recover the said awarded amount of compensation along with interest from the Appellants No. 1 and 2, being the driver and owner of the alleged offending vehicle. Mr. V.K. Sharma, the learned Counsel for the Appellants submitted that the learned Tribunal failed to consider that on the date of the alleged accident, i.e., on 09.12.2003, the Tata 407 (mini truck) No. HR-61-1936 was in Delhi for the purpose of getting the permit for the period intervening 20th December, 2003 to 19th April, 2004. It is contended by the learned Counsel for the Appellants that the Appellants were granted permit on the very same day, i.e., on 09.12.2003 and that as it is essential to produce the vehicle before the Transport Authority before the grant of permit, the Appellants cannot be faulted for the same and held liable to pay the award amount. The alleged offending vehicle was duly insured with the Respondent No. 5 and the factum of insurance is not denied and as such the Tribunal was not correct in fastening the liability upon the Appellants herein.

The impugned portion of the award reads as under:

"20. The next question arises, from whom the Petitioners are entitled to receive the awarded amount of compensation. The Respondent No. 1 Sh. Vinod appeared as R1W1 and deposed that he is the owner of vehicle No. HR-61-1936 and proved a copy of permit issued by State of Haryana as Ex.R1W1/A. Temporary permit issued by Govt. of NCT of Delhi dated 9.12.03 is proved as Ex.R1W1/B and another temporary permit issued by Govt. of NCT of Delhi on 6.10.04 as Ex.R1W1/C. The relevant permit is Ex.R1W1/B but on careful perusal of the said permit I find that the same has been made effective only from 20.12.03 and it is valid till 19.04.04. Thus clearly the permit of the offending vehicle which entered into Delhi was not valid on 9.12.03 i.e. the date of accident. Accordingly the Respondent No. 1 has committed breach of specific terms of insurance policy, a copy of which is put as Ex.R2/X.1 wherein it has been stated that vehicle will not be run without the valid and effective permit. Accordingly although the Respondent No. 2 i.e. insurance company is liable to pay compensation to the Petitioner but at the same time it is found entitled to recover the same from the Respondent No. 1 who is the owner of the offending vehicle and had been plying the vehicle in Delhi without valid and effective permit. I accordingly hold that Respondent No. 1 & 3 being the owner and driver of the offending vehicle are held liable jointly and severally to pay compensation to the Petitioner. The Petitioner No. 2 (sic. Respondent No. 2) being the insurer of the offending vehicle is vicariously held liable to pay compensation to the Petitioners with right to recover the said awarded amount of compensation along with interest from Respondent No. 1."

From the record, it appears that the only witness examined by the Appellant No. 1 (insured) before the learned Motor Accidents Claims Tribunal in the context of permit was R2W1 Shri Harinder Sharma, Steno Typist, DTO, Bhiwani. The said witness testified that he had brought the summoned record, i.e., the entry register pertaining to permit issued by DTO, Bhiwani with effect from 08.05.2003 to 03.02.2004 and that the said register brought by him contained an entry pertaining to vehicle bearing registration No. HR-61-1936 (Tata 407) registered in the name of Vinod Kumar, son of Jai Pal (the Appellant No. 1). He further testified that the permit was issued to the said vehicle for the period from 16.10.2003 to 15.10.2004 as a goods vehicle. Ex.R2W1/1 was the copy of the permit issued by DTO, Bhiwani in respect of the said vehicle which was valid only for the territory of Haryana. In the course of his cross-examination, the testimony of this witness was not challenged. The sole query put to this witness was whether vehicle plying under DTO, Bhiwani could enter Delhi by paying road tax/temporary permit fee, while entering into Delhi or any other State, which was answered in the affirmative by the witness.

Apart from examining this witness, the Appellant No. 1 Shri Vinod Kumar examined himself as R1W1 to testify that he was the owner of vehicle HR-61-1936 and that he had brought a copy of the original permit of the said vehicle for the State of Haryana - Ex.R1W1/A. He further testified that temporary permit had been issued by the Government of NCT in respect of the said vehicle dated 09.12.2003 which was Ex.R1W1/B. He placed on record the original receipt of the temporary permit issued on 06.10.2004 as Ex.R1W1/C. In the course of his cross-examination, the witness denied the suggestion that on 09.12.2003 he had no permit in respect of his vehicle for plying the same in Delhi, but volunteered to state that he had taken the vehicle to Delhi on 09.12.2003, and on the same day the temporary permit was got issued by making payment. He also denied the suggestion that the temporary permit for plying his vehicle in Delhi was to be effective from 20.12.2003 and not from 09.12.2003. He admitted that he had no receipt for the period prior to 09.12.2003.

On the aforesaid evidence, the contention of the learned Counsel for the Appellants, that recovery rights had been wrongly awarded by the learned Tribunal to the Respondent No. 5 - Insurance Company, is wholly unsustainable. The accident which resulted in the death of Shri Shyam Singh took place at 7.00 a.m. on 09.12.2003. The temporary permit was got issued by the Appellant No. 1 at a subsequent point of time i.e., during office hours on 09.12.2003. Significantly, this permit categorically mentions that it is to take effect from 20th December, 2003 and was to remain valid till 19th April, 2004. No evidence has been placed on record to show that any temporary permit was got issued by the Appellants on any date prior to 09.12.2003. Permit Ex.R2W1/A issued by the State of Haryana, though it pertained to the period 8th May, 2003 to 3rd February, 2004, it was valid only for the territory of Haryana and was not valid for the State of Delhi. The temporary permit issued on 06.10.2004 (Ex.R1W1/C) was also for a period subsequent to the date of the accident.

In view of the aforesaid, there is no merit in the appeal, which is accordingly dismissed. CM No. 13714/2007 also stands disposed of.