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2006 DIGILAW 793 (MP)

Krishnapal Singh v. Gulzar Singh

2006-06-28

A.K.SHRIVASTAVA, DIPAK MISRA

body2006
ORDER Misra, J. -- 1. In this appeal preferred under section 173 of the Motor Vehicles Act, 1988 (for brevity 'the Act') the claimant-appellant has called in question the sustainability of the award passed by the Motor Accident Claims Tribunal, Katni (in short 'the Tribunal') on 7.9.2000. 2. The facts, in a nut shell, are that on 31.5.1997 the claimant appellant was going towards Katni from Jabalpur in a Maruti van bearing Registration No. MP 21 -A/6269. At that juncture a jeep bearing Registration No. 20-T/0375 being rashly and negligently driven by the respondent No.1 dashed against the appellant as a consequence of which he sustained fractures on both the legs. In view of the aforesaid, an action was initiated under section 166 of the Act before the Tribunal contending that despite availing long treatment and surgery, condition of the claimant did not improve and he became permanently disabled. The claimant put forth a claim of Rs. 11,00,000/- on various heads. 3. The owner and the driver chose to remain ex parte. The insurer resisted the claim of the claimant appellant stating, inter alia, that the jeep that was insured with it had not caused the accident and the claimant had not sustained any kind of permanent disablement. Additionally a stand was taken that the vehicle in question had violated the conditions of the policy inasmuch as it was being plied without valid permit. Be it noted that insurer had taken leave of the Court to contest the matter as envisaged under section 170 of the Act. 4. The Tribunal framed as many as six issues and came to hold that the accident had occurred due to rash and negligent driving of the offending vehicle; that the claimant had sustained injuries on both the legs and permanent disablement could be 65%; and that the claimant was entitled to a sum of Rs.5,39,000/- with 12% interest from the date of presentation of the application before the Tribunal. The Tribunal also expressed the view that the insurance company was not liable to indemnify the owner since the permit was issued for plying the vehicle from Tilwara to Gaur Nadi but the accident took place at National Highway near village Bheda and, therefore, the jeep was being plied in contravention of the permit. The Tribunal also expressed the view that the insurance company was not liable to indemnify the owner since the permit was issued for plying the vehicle from Tilwara to Gaur Nadi but the accident took place at National Highway near village Bheda and, therefore, the jeep was being plied in contravention of the permit. The Tribunal further came to hold that the owner had violated the conditions of the insurance policy as the policy was granted for the purpose of private use but the owner had taken permit to ply the vehicle on 'Nagar Vahan Seva' i.e. a passenger carrying vehicle though the insurance policy was taken for private use. 5. We have heard Mr. Ashok Lalwani and Mr. Anil Lala, learned counsel for the appellant and Ms. Asgari Khan, learned counsel for the respondent. 6. It is submitted by Mr. Lalwani, learned counsel for the claimant appellant that the award passed by the Tribunal is vulnerable inasmuch as the Tribunal had adopted a hyper-technical approach by coming to hold that there has been breach of policy. It is contended by him that there is no embargo under the Act driving a transport vehicle for private use by a person holding valid driving licence. The learned counsel also contended that the amount of compensation granted by the Tribunal does not fall under the category of just compensation. Alternatively it is submitted by him that in the ultimate eventuate if this Court comes to hold that the award passed by the Tribunal is just and proper, the insurance company must be directed to pay and recover the same from the owner. 7. It is submitted by Ms. Asgari Khan, learned counsel for the insurer that the award passed by the Tribunal is absolutely just and proper and does not deserve any enhancement. It is also put forth by her that there has been fundamental breach of conditions of the policy and hence, the Tribunal is absolutely correct in absolving the insurance company. It is also urged that the principle of pay and recover does not apply to the case at hand. 8. First we shall deal with the compensation component. It is also put forth by her that there has been fundamental breach of conditions of the policy and hence, the Tribunal is absolutely correct in absolving the insurance company. It is also urged that the principle of pay and recover does not apply to the case at hand. 8. First we shall deal with the compensation component. Considering the nature of injuries caused, disability incurred, amount spent on medical treatment, pain and suffering, loss of income and other concomitant factors we are inclined to think that the award granted by the Tribunal is just, appropriate and does not warrant interference. 9. Next issue that arises for consideration is whether the Tribunal has correctly absolved the insurance company. Submission of Mr. Lalwani is that there has been no breach of policy. It is noteworthy to mention here that the policy was taken for the purpose of private use. The permit was obtained from the RTA to ply the vehicle from Tilwara to Gaur Nadi as 'Nagar Vahan Seva'. Two aspects have emerged, as is perceivable from the award. The insurance policy was in vogue at the time of accident and second, the policy clearly stipulated that the policy was for private use. In addition, the permit was granted to ply the vehicle from Tilwara to Gaur Nadi but the accident occurred at National Highway, village Bheda near Sleemnabad. Thus, the route was not covered by the permit. In the case of National Insurance Co. Ltd. v. Kusum Rai and others [2006 (II) MPWN 129 = 2006 AIR SCW 1649] a two-Judge Bench of the apex Court came to hold that where a driver was holding the licence to drive light motor vehicle and not possessing any licence to drive commercial vehicle there was breach of condition of contract of insurance. Their Lordships referred to section 149 of the Act and thereafter in paragraph 10 of the judgment held thus: "10. In has not been disputed before us that the vehicle was being used as a taxi. It was, therefore, a commercial vehicle. The driver of the said vehicle, thus, was required to hold an appropriate licence therefor. Ram Lal, who allegedly was driving the said vehicle at the relevant time, as noticed hereinbefore, was holder of a licence to drive a Light Motor Vehicle only. He did not possess any licence to drive a commercial vehicle. It was, therefore, a commercial vehicle. The driver of the said vehicle, thus, was required to hold an appropriate licence therefor. Ram Lal, who allegedly was driving the said vehicle at the relevant time, as noticed hereinbefore, was holder of a licence to drive a Light Motor Vehicle only. He did not possess any licence to drive a commercial vehicle. Evidently, therefore, there was a breach of condition of the contract of insurance. The appellant, therefore, could raise the said defence." Though the aforesaid decision was delivered in a different context, yet the same can be treated to be applicable to the obtaining factual matrix of the present case inasmuch as there has been two violations, carrying passengers in a route in respect of which there was no permit and further the vehicle was insured for the purpose of private use but being used for commercial purpose. The said fact was not made known to the insurance company and the insurance was not taken in that regard. In view of the aforesaid, we have no hesitation in our mind that there has been breach of contract of insurance and the insurance company has rightly taken defence and the Tribunal has correctly absolved the insurance company. 10. The next aspect that arises for consideration whether a direction can be issued to the insurance company to pay and recover. Submission· of Ms. Asgari Khan is that there has been violation of policy and hence, direction should not be given to pay and recover. This Court in MA No.79/2002 [Oriental Insurance Company Limited v. Harish Kumar and others] after taking note of the decisions rendered in the cases of United India Insurance Co. Ltd. v. Tilak Singh and others [2006 AIR SCW 1822], Jay Rai and another v. Kalu Ram and others [2005 (2) DMP 105 (MP)] Shanti and others v. Awadh Narayan Jaiswal [MP No. 1239/2000] and Pramod Kumar Agrawal and another v. Mushtari Begum (Smt.) and another [ (2004) 8 SCC 667 ], National Insurance Company Ltd. v.Chinnamma and others [ (2004) 8 SCC 697 ], National Insurance Co. Ltd. v. Bommithi Subbhavamma and others [2005 ACJ 721], National Insurance Co. Ltd. v. Kusum Rai and others [2006 AIR SCW 1649] expressed the view that the law laid down in the cases of Baljit Kaur (supra) and Pramod Kumar Agrawal (supra) shall still hold the field. Ltd. v. Bommithi Subbhavamma and others [2005 ACJ 721], National Insurance Co. Ltd. v. Kusum Rai and others [2006 AIR SCW 1649] expressed the view that the law laid down in the cases of Baljit Kaur (supra) and Pramod Kumar Agrawal (supra) shall still hold the field. Therefore, we are inclined to direct the insurer to make good the award and thereafter proceed to recover the amount from the owner as per law. 11. Resultantly, the appeal stands disposed of on above terms without any order as to costs.