Miscellaneous Appeal No. 222 of 2012 · Patna High Court · 2013

.... .... Respondent/s ====================================================== Appearance: For the Appellant/s : Mr. Shailendra Kumar For the Respondent/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER

11. 19-08-2013 Reg: I.A. No. 897 of 2013 Heard Mr. Shailendra Kumar, learned counsel appearing on behalf of the appellant and Mr. Anil Kumar Singh, learned counsel for the insured-owner. This petition under Section 5 of the Limitation Act has been filed for condonation of delay in filing the appeal. Office reports a delay of 3 months and 29 days. It is submitted by learned counsel Patna High Court MA No.222 of 2012 (11) dt.19-08-2013 2 appearing for the appellant that there is no deliberate laches or delay in filing the appeal rather the delay has occurred in obtaining departmental approval for filing the appeal. The prayer is contested. Having heard learned counsel for the parties and having perused the records, the delay is condoned. I.A. No. 897 of 2013 is allowed. Reg: M.A. No. 222 of 2012 This appeal under Section 173 of the Motors Vehicles Act, 1988 (hereinafter referred to as the ‘Act’) is directed towards the judgment and award dated 28.07.2011 / 26.08.2011 passed by 2nd Additional Sessions Judge-cum-Motor Vehicles Accident Claim Tribunal, Bhagalpur in Claim Case No. 142 of 2007, whereby the claim has been allowed together with interest. The insurer company is in appeal being aggrieved by the judgment and award. The issue raised by the appellant insurance company is that the vehicle was being plied without a valid permit and thus the insurer has no liability to indemnify the insured. Mr. Shailendra Kumar appearing on behalf of the appellant has relied upon the investigation report submitted by the Investigator, copy whereof has been enclosed with the appeal. The Investigator has reported that the validity of the permit of the Patna High Court MA No.222 of 2012 (11) dt.19-08-2013 3 truck in question was only up to 2.8.2007 and since the accident had taken place on 14.09.2007, it is apparent that the truck in question was plying without a valid permit. In the alternative it is argued that the insurer should be afforded liberty to recover the compensation amount from the insured upon establishing the fact that the truck in question was not carrying a valid permit on the date of accident. The insured has appeared through counsel Mr. Anil Kumar Singh who has filed a counter affidavit enclosing the permits relatable to the truck in question. It is submitted that the truck has been plying under a valid permit right since 12.6.2003 and which is valid until 6.8.2014. It is further submitted that unfortunately the copy of the permit for the period 3.8.2007 up to 26.1.2008 is not available with the insured and that he has applied for a duplicate copy of the same with the Regional Transport Authority. It is submitted by Mr. Singh appearing on behalf of the insured that the truck in question belongs to a gas agency and considering the nature of the business it cannot afford not to have a valid permit since the entire business rests upon the same. The counter affidavit encloses copy of the permits issued by the Regional Transport Authority, until 6.8.2014 but the permit for the period

3.8.2007 up to 26.1.2008 is manifestly missing. There is thus a Patna High Court MA No.222 of 2012 (11) dt.19-08-2013 4 dispute of facts whether the truck in question held a valid permit on the date of accident or not and which requires to be established by the contesting parties i.e. the owner and the insurer by leading evidence. However, the claimant has no role to play in the same and he is required to be compensated. Having heard learned counsel for the parties and having perused the materials on record and taking note of the permits enclosed with the counter affidavit filed on behalf of the owner, this Court is of the opinion that this appeal can be disposed of in the light of the alternative prayer made by the appellant insurance company. This Court thus without interfering with the judgment and award impugned, disposes of this appeal with direction to the insurance company to discharge the obligation cast upon them under the judgment and award under challenge and make payment of the compensation amount to the claimants together with interest, within a maximum period of eight weeks from today. The appellants however would be at liberty to make recovery of the same from the insured in case they are able to establish before the tribunal that the truck in question did not have a valid permit on the date of accident. For the purpose, the appellant would not be required to file a separate suit rather the insurance company can establish the same in the execution proceedings initiated for Patna High Court MA No.222 of 2012 (11) dt.19-08-2013 5 enforcement of the award and if not then the insurance company can initiate proceeding before the executing court concerned as if the dispute between the insurer and owner was the subject matter of determination. Reference is made to the judgment of Supreme Court passed in Nanjappan case reported in (2004) 13 SCC 224. With the aforesaid observations and directions this appeal is disposed of. The statutory amount may be transferred to the tribunal concerned for its disbursement in accordance with law. S.Sb/- (Jyoti Saran, J)