The National Insurance Company Limited Branch Above Central Bank v. Amrita & Ors.

3. Smt. Geeta Singh W/o R.B. Singh Aged About 40 Years R/o Sada Colony, Awarabhatha, Dantewada, Police Staion Dantewada, District South Bastar Dantewada C.G. , District : Dantewada, Chhattisgarh –-- Respondents For Appellant For Respondent/claimant : Mr. G.V. K. Rao, Advocate. : Mr. Vishwanath Shrivas, Advocate Hon'ble Shri Justice P. Sam Koshy Order On Board

25.08.2022

1. The present insurance company's appeal under Section 173 assailing the award dated 27.08.2014 passed by the Learned Additional Motor Accident Claims Tribunal, South Bastar Dantewada in motor accident claim case No. 251 of 2014. Vide the said award, the Tribunal has quantified compensation payable to the respondents/claimants to the tune of Rs. 10,000/-.

2. The facts of the case are that, on 29.08.2007, the claimant Amrita met with an accident while traveling in a commander jeep bearing registration No. CG/18-T-0110 which dashed against a tree on the 2 road side. As a result of the said accident, the claimant received injuries in her left hand which resulted in fracture on her wrist

3. The challenge in the instant case is by the Insurance Company so far as the liability part is concerned. According to the counsel for the appellant it is a case where though the driver of the vehicle was having a license to drive only a Light Motor Vehicle but he was in-fact driving a commercial vehicle. Therefore, the license was not a valid and effective license. It was also the contention of the counsel for the appellant that it is a case where the commander Jeep i.e. the offending vehicle bearing registration No. CG/18-T-0110 though was registered with the RTO as a commercial vehicle for taxi purpose but was insured as a private car, thus there is a breach of policy. Likewise, it was also the contention of the learned counsel for the appellant that the vehicle also did not have a valid permit and fitness certificate. Thus, prayed for the liability part to be shifted from the insurance company upon the owner of the said vehicle that is the respondent No. 3 in the instant case.

4. Learned counsel for the respondents- the claimants however, submits that it is a case where undisputedly the vehicle had a valid policy at that relevant point of time. That it was a package policy therefore there was no illegality committed by the Tribunal below while awarding the compensation and as also while fastening the liability upon the Insurance Company jointly and severally

5. Having heard the contention put forth on either side and on perusal of records, particularly taking note of the judgment in the case Mukund 3 Dewangan Vs. Oriental Insurance Company 2017 14 SSC 663, the ground raised by the Insurance Company so far as driver not having an effective license would no longer sustain.

6. However, taking into consideration the judgment of the Hon’ble Supreme Court in the case of Amrit Paul Singh Vs. TATA AIG 2018 7 SSC 558 wherein paragraph 24 which has been held as under :-

24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellanthadtaken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction.We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down inSwaran Singh(supra) andLakhmi Chand (supra) in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh (supra) and other cases pertaining to pay and recover principle.

7. In the instant case the owner and driver have been proceeded ex- parte before the Tribunal as also before this Court in-spite of proper service, the owner has not cared to appear before the Tribunal and to contest the case on merits. There is no specific pleadings and proof made available by the owner as regards the vehicle having proper 4 fitness and proper permit to be operated as a commercial vehicle. Further there is no proof and pleadings on the part of the owner to provide any justification for the vehicle on one hand getting insured as a private car with a package policy and on the other hand getting it registered as a commercial vehicle for taxi purpose with the transport department.

8. In view of the same, this Court is of the opinion that the order of fastening the liability upon the Insurance Company does not seem to be proper legal and justified. The impugned award therefore needs interference to the aforesaid extent. However, considering the fact that vehicle was duly insured with the appellant’s Insurance Policy by way of package policy, this Court is inclined to apply the principle of “Pay and Recovery” and accordingly it is ordered that Insurance Company shall deposit the entire amount awarded by the Tribunal and would be at liberty to initiate appropriate recovery proceedings against the Owner.

9. Accordingly, the present appeal stands partly allowed to the aforesaid extent. Jyoti Sd/- (P. Sam Koshy) Judge