Ram Kumar & Anr. v. Mani Ram & Ors.

Present : Mr. S.K.Yadav, Advocate for the appellants. Mr. Manjoj Kaushik, Advocate for the respondent Nos.1 to 5. Mr. Subhash Goyal, Advocate for the Insurnace Company. K.C.PURI. J. This is an appeal directed by Ram Kumar driver and Banwari Lal Saini owner of offending vehicle RJ-14-2G-3369 (hereinafter referred as – offending vehicle). Briefly stated that at about 9.00a.m. on 28.12.2007 Vijay Kumar (deceased) along with one Suresh Kumar had gone to the water treatment plant for unloading fitkari from truck No.RJ-14-2G-3369 and when he was standing behind it, its driver all of a sudden carelessly drove it reverse without paying any heed to the shouting made by Bhure Lal (grandfather of the deceased) and said Suresh Kumar and FAO No.4689 of 2009 2 run over him under its left side rear wheels and thereafter fled away from there towards Gurgaon. The deceased was taken to Kalyani Hospital, Gurgaon for treatment where the doctor declared him dead. The accident had occurred due to sole rash and negligent driving by Ram Kumar driver and Banwari Lal Saini owner of offending vehicle No.RJ-14-2G-3369. The deceased was earning Rs.4000/-per month by doing labour work. Upon notice, the respondents contested the petition and denied the contents of the claim petition. It has been averred that the accident was not caused by respondent No.1 while driving the offending vehicle rather the same was the result of negligence of the deceased himself as he was sitting on the fitkari bars loaded in the truck and by losing his balance fell inside it. Respondent No.3-Insurance Company denied its liability by alleging that the Insurance Company was not liable to pay any compensation because respondent No.1 was not holding a valid and effective driving licence and respondent No.2 had violated the terms and conditions of the insurance policy, if any is proved. Following issues were framed :-

1. Whether the accident in question was caused by respondent No.1 while driving offending vehicle No.RJ-14- 2G-3669 in a rash and negligent manner resulting into death of Vijay Kumar, as alleged ?OPP.

2. If issue No.1 is proved, whether the claimants are entitled to any compensation and if so to what extent and from whom ?OPP.

3. Whether the respondent No.3 is not liable to make payment of any compensation on account of alleged FAO No.4689 of 2009 3 violation of terms and conditions of insurance policy ? OPR(3).

4. Relief. The Tribunal returned the finding on issue No.1 in favour of the claimants, while deciding issue No.2, it is held that the claimants are held entitled to claim Rs.3,12,400/-. However, while determining issue No.3, the Tribunal held that since respondent Nos.1 and 2 have not produced the route permit and as such they are liable to pay the amount of compensation and consequently, the respondent No.3 Insurance Company was absolved of the liability. On the motion stage, this Court on 22.10.2009 directed the appellants to deposit the compensation amount with the Tribunal and that amount is stated to have been deposited before the Tribunal. The learned counsel for the appellant has submitted that onus to prove that offending vehicle was not having a valid route permit is always upon the Insurance Company. The Tribunal in the Award itself has stated that the Insurance Company has not produced any evidence. The Tribunal has absolved the Insurance Company on the ground that the Tribunal directed respondent Nos.1 and 2 to produce the route permit but they have failed to produce the route permit and as such the Insurance Company is not liable to pay the compensation amount. It is submitted that since the onus was upon the Insurance Company to prove that offending vehicle was not having a route permit, so, in these circumstances Insurance Company cannot be absolved to pay the amount as the vehicle in question was duly insured. FAO No.4689 of 2009 4 To support this contention, learned counsel for the appellant has relied upon authority National InsurnaceCompany Ltd. vs. Smt.Asha Rani and others 2008(1) RCR (Civil) page 5. In reply to the above noted submission, learned counsel for the Insurance Company has submitted that route permit is supposed to be in possession of the owner of the offending vehicle. The Tribunal has given specific direction to respondent Nos.1 and 2 to produce the route permit but they failed to produce the route permit. Even in the grounds of appeal, it is nowhere mentioned that vehicle was having a valid route permit. There is a breach of the condition of the policy by not having a valid route permit. In authority National InsurnaceCompany Ltd. vs. Chella Bharathamma 2004(7) JT page 519 (SC), i t has been held that whether there is a no valid route permit, the insurance company is not liable. I have given my thoughtful consideration to the rival submissions made by both the sides and have gone through the records of the case. The sole point involved in the present appeal is whether the owner of offending vehicle was having a valid route permit. It is not disputed during the course of arguments that offending vehicle is a transport vehicle and required a route permit. From the perusal of the record of the Tribunal, it is revealed that vide order dated 6.5.2009 respondent No.3 made request to the Court to direct respondent No.1 and 2 to submit the copy of the route permit. On the request of Insurance Company, the learned Tribunal directed to respondent No.1 FAO No.4689 of 2009 5 and 2 to supply the copy of route permit on 16.5.2009 failing which an adverse inference shall be drawn against them. Thereafter, in spite of specific directions to respondent Nos.1 and 2 to produce the copy of the route permit, the same was not produced before the Tribunal and ultimately the case was decided on 2.6.2009. Even in the grounds of appeal, it is nowhere mentioned that the offending vehicle was having a valid route permit. So far as the authorities National Insurance Company Ltd. vs. Smt.Asha Rani and others 2008 (1) RCR (Civil) page 5 and National Insurance Company Ltd. vs. Chella Bharathamma 2004 (7) JT page 519 (S C) (supra) are concerned, the dispute in the said cases is regarding validity of the driving licence. There is no dispute regarding the valid driving licence in the present case. The dispute is regarding the possession of route permit. The Hon'ble Apex Court in National Insurance Company Ltd. vs. Chella Bharathamma's case (supra) held that where the vehicle required route permit and person plying the same without route permit cannot be placed at a better pedestal vis.a.vis., who has violated any condition thereof, the insurer cannot be made liable for such vehicle. However, in that authority, it has been further laid down that insurance may be asked to satisfy the 3rd party claim and recover from the Insurance Company by executing an award like a decree against him. In the present case, the amount is stated to have been deposited. So, the second aspect of the case that insurer may be asked to satisfy the third party claim and indemnify and recover the same from the insured FAO No.4689 of 2009 6 by executing the award like a decree against him loses its importance. However, the fact remains that the finding of the Tribunal to the effect that offending vehicle was not having a valid route permit does not call for any interference. So, in view of the authority National Insurance Company Ltd. vs. Chella Bharathamma's case (supra), it is held that Insurance Company is not liable to pay compensation amount. However, it is made clear that if any amount is still due in that case, the Insurance Company shall pay the amount to the claimants and can get the same recovered from the present appellants by executing the Award itself. So, the appeal preferred by the owner and driver is dismissed with the above said observations. A copy of this judgment be sent to the trial Court for strict compliance. May 17th , 2010 ( K.C.PURI ) JUDGE