Naveen Kumar Jain v. Smt. Siyabati Tamrakar And ANR
NAFR HIGH COURT OF CHHATTISGARH, BILASPUR MAC No. 26 of 2014 • Naveen Kumar Jain S/o Shri Heerachand Jain, aged about 27 years, R/o Bhanupratappur, Tahsil Bhanupratappur, Civil and Revenue District North Bastar, Kanker (CG) ---- Appellant
Versus
1. Smt. Siyabati Tamrakar, W/o Late Ramadhar Tamrakar, aged about 40 years, R/o Marrampani, P.S. Bhanupratappur, Tahsil Bhanupratappur, Civil and Revenue District North Bastar, Kanker (CG)
2. Bajaj Alliance General Insurance Company Limited, Shivmohan Bhawan, Vidhansabha Road, Pandari, Raipur, Civil and Revenue District Raipur (CG) ---- Respondents For Appellant :
Mr. Rakesh Thakur, Advocate For Respondent No.1 :
Mr. Parag Kotecha, Advocate For Respondent No.2 :
Mr. Abhishek Sinha, Advocate Hon'ble Shri P. R. Ramachandra Menon, CJ Hon'ble Shri Parth Prateem Sahu, J Order On Board Per Parth Prateem Sahu, J 21.08.2020
1. Appellant-owner has filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short 'the Act of 1988') challenging the award dated 22.6.2013 passed by the learned Additional Motor Accident Claims Tribunal, Bhanupratappur District North Bastar Kanker (for short 'the Claims Tribunal') in Claim Case No.42/2008 thereby allowed claim application in part, awarded total compensation of Rs.3,21,500/- to claimants in a death case and fastened liability to pay the entire amount of compensation on the owner-appellant herein.
2. Facts relevant for disposal of this appeal, in brief, are that appellant is the registered owner of Taxi Jeep bearing registration number CG19-T-0448 (for short 'the offending vehicle') which was insured with non-applicant No.2-Insurance Company for commercial purposes. On 8.3.2008 in between 7.30 & 8.00 p.m. on a national highway near Balodgahan, District Durg (CG) the offending vehicle collided with a Truck which was coming from opposite direction, as a result, Ramadhar Tamrakar, who was travelling in the offending vehicle, suffered grievous injuries on various parts of his body and succumbed thereto on the spot.
3. Claimant/respondent No.1, widow of deceased Ramadhar Tamrakar, filed an application under Section 163A of the Act of 1988 seeking total compensation of Rs.5,06,000/- pleading therein that on the date of accident, her husband was working as a 'Mason' and earning Rs.3,000/- per month. She was dependent on the earning of deceased and on account of his untimely death in accident in question, she suffered loss of dependency.
4. Non-applicant No.1/appellant, owner of offending vehicle, submitted his reply to the application and admitted that the deceased was known to him and due to their relationship, deceased travelled on his vehicle to Raipur without any fare and while returning from there Jeep met with an accident and in the accident driver of Jeep Kailash Jain, Susheela Shrivastava and husband of applicant travelling in Jeep died.
On the date of accident, the offending vehicle was duly insured with non-applicant No.2 and there was no breach of any of the conditions of insurance policy. In case of award of any amount of compensation, the insurance company is liable to indemnify the insured.
5. Non-applicant No.2 submitted its reply to claim application pleading therein that since accident in question occurred due to dash by a truck, liability to pay amount of compensation would be of the driver, owner and insurer of the said truck. It was also pleaded that the offending vehicle was plied in breach of conditions of the insurance policy as on the date of accident, there was no valid fitness certificate and permit of the offending vehicle and the driver was also not holding valid and effective driving license, hence non-applicant No.2Insurance Company is not liable to indemnify the insured.
6. Upon appreciation of pleadings and evidence brought on record by both sides in support of their respective case, the Claims Tribunal while holding the application filed under Section 163A of the Act of 1988 to be maintainable, the deceased died due to injuries suffered by him in a motor vehicular accident, allowed the claim application in part and awarded total sum of Rs.3,21,500/- as compensation. The Claims Tribunal exonerated the insurance company from its liability and held the owner of offending vehicle liable to make payment of the entire amount of compensation on the ground that the offending vehicle was plied in breach of condition of
insurance policy.
7. Mr. Rakesh Thakur, learned counsel appearing on behalf of appellant-owner of offending vehicle, would submit that the offending vehicle was registered with the Registering Authority concerned as a commercial vehicle 'Taxi'. The insurance policy issued to the offending vehicle also indicates that offending vehicle is a commercial vehicle. The competent authority has issued permit for plying the offending vehicle as taxi within the limits of District Kanker, which was valid from 1.2.2008 to 30.4.2008. The accident took place on 8.3.2008 i.e. within the period in which permit issued in favour of offending vehicle was in force. Merely because the accident took place within the territorial limits of District Durg, it cannot be said that the offending vehicle was plied on road without a valid permit.
In these circumstances, the Claims Tribunal ought not to have exonerated the insurance company by holding that the offending vehicle was plied in breach of conditions of policy i.e. without permit. In alternate, he submits that the amount of compensation awarded by the Claims Tribunal is on higher side and liable to be reduced suitably. In support of aforementioned submissions, learned counsel places his reliance on the decision of Hon'ble Supreme Court in the case of Bajaj Allianz Vs.
(2) CGLJ 395.
8. Mr. Parag Kotecha, learned counsel for respondent No.1claimant has supported the impugned award.
9. Mr. Abhishek Sinha, learned counsel representing respondent No.3 Insurance Company submits that there is no dispute with regard to registration and insurance of offending vehicle as a commercial/transport vehicle. There is also no dispute with regard to issuance of a permit in favour of offending vehicle by a Competent Authority for plying it on road as a 'taxi'. As per terms of the permit, the offending vehicle could be plied within the limits of District Kanker. On the date of accident, the offending vehicle was found plying beyond the permissible limit i.e. in District Durg, wherein the accident had occurred.
In view of this violation of the permit, there was breach of the condition of insurance policy under the heading 'Limitation as to use' and as such, the insurance company was rightly exonerated from the liability to indemnify the insured. He submits that Hon'ble Supreme Court in the cases of National Insurance Company Ltd. Vs. Challa Bharatamma reported in (2004) 8 SCC 517 and Amrit Paul Singh and another vs. Tata AIG General Insurance Co. Ltd. and others reported in (2018) 7 SCC 558 while considering the issue with regard to permit, has held that use of vehicle in a public place without a permit is fundamental statutory infraction. He submits that the Claims Tribunal has passed the impugned award in accordance with law which does not call for any interference.
10. We have heard learned counsel for the parties and perused the record of claim case.
11.
The main ground on which the impugned award has been
assailed is that the Claims Tribunal erred in exonerating the insurance company on the ground that the offending vehicle was plied in breach of permit issued, which also amounts to breach of condition of insurance policy.
12. It is submission of learned counsel for appellant that it is not the case that no permit has been issued in favour of the offending vehicle by a Competent Authority. In case at hand, a valid permit was issued in favour of offending vehicle for plying it as a passengers carrying vehicle within the limits of District Kanker. Hence, the insurance company cannot take a defence that the offending vehicle was plied without permit.
13. To appreciate the above submission, we have perused the conditions mentioned in the insurance policy (Ex.D-1). This policy contains following clause under the heading 'Limitation as to use';
"The policy covers use only under a permit within the meaning of the Motor Vehicles Act, 1988 or such a carriage falling under sub-section 3 of Section 66 of the Motor Vehicles Act, 1988. The Policy does not cover use for : Organized racing, Pace Making, Reliability Trials, Speed Testing, use whilst drawing a trailer except the towing (other than for reward) of any one disabled mechanically propelled vehicle. "
14. Perusal of above quoted clause reveals that if a vehicle is not plied under a permit within its meaning under the Act of 1988, the insurance company cannot be held liable to indemnify insured. As per condition of permit issued, the offending vehicle could only be plied within the limits of District Kanker. There is no denial of fact that accident in question had
occurred beyond the permissible limit i.e. in an area falling within District Durg. For plying the vehicle within territory of District Durg there was no permit. Since the offending vehicle was plied outside the limits in violation of the permit, it will definitely amount to fundamental breach of a specified condition of the policy. Hence, the above submission made on behalf of the appellant does not appeal to us and it is hereby repelled.
15. In view of the above and in the light of decisions of Hon'ble Supreme Court in Challa Bharatamma's case (supra) and Amrit Paul's case (supra), we are of the considered view that the Claims Tribunal has not committed any illegality or infirmity in exonerating the insurance company from its liability to indemnify the claimant, warranting interference in exercise of appellate jurisdiction.
16. As regards the submission that the compensation awarded by the Claims Tribunal is liable to be reduced. We have gone through the impugned award and noticed that the compensation assessed by the Claims Tribunal is based on proper appreciation of evidence placed on record by both sides, computation as per Second Schedule, therefore, it cannot be said to be in any circumstance on higher side.
17. For the foregoing reasons, the appeal being sans merit is liable to be dismissed and is hereby dismissed. Sd/- Sd/- (P.R. Ramachandra Menon) (Parth Prateem Sahu) Chief Justice Judge roshan/-