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Himachal Pradesh High Court · body

2009 DIGILAW 947 (HP)

National Insu. Co. Ltd. v. Sunil Sood

2009-10-30

ARUN KUMAR GOEL

body2009
ORDER Justice Arun Kumar Goel (Retd.), President- Facts as they emerge from tile record of this appeal are that vehicle' which is subject matter of this complaint met with accident before it had been registered end or had obtained route per-mil where under it could be plied as per provisions of Motor Vehicles Act. 1988 and the rules framed thereunder. 2. Vehicle inquest ion was purchased in the end of November, 2002 for Rs. 5.07,300/- and was insured for this sum with the appellant from 2.12.2002 to 1.12.2003 At about 800 PM on 7.12.2002 while it was on its way to Palampur from Alampur, according to respondent it met with accident. This was 'a' case of total loss. After accident appellant was informed. With a view to assess the loss of the vehicle in question, surveyor was deputed by the appellant. Though the damage caused was beyond repair, still at the insistence of the appellant respondent got the vehicle repaired by spending Rs. 2,16,875/-. Despite these repairs, vehicle was not functional and as a last resort, the documents of the vehicle were deposited by him with the RICP-and ETO at Dharamshala. This according to the appellant was the proof of the vehicle III question non functional. 3. In this background respondent asked the appellant to settle his claim within .the statutory period, but without any consequence. Further according to him requisite documents were provided by him to the appellant. Instead of settling the claim, according to the respondent, appellant tried to unnecessarily delay the matter, and did not pay the amount spent by him. 4. In this background alleging deficiency in service on the part of the appellant, Complaint No. 271/2005 was filed by the respondent. When put to notice complaint was contested mainly on three grounds (a) that the driver at the time of accident was not holding a valid and effective driving licence whereby he was licensed to drive the vehicle in question; (b) that the truck was being plied without valid route permit in violation of Section 66 of the Motor Vehicles Act, 1988 as also the terms and conditions of the insurance policy subject to which the appellant had undertaken to indemnity the vehicle in question; and (c) that the vehicle in question was overloaded keeping in view its laden and unladen weight as per its documents. 5. 5. District Forum below after hearing the parties allowed the complaint and directed the appellant to pay a sum of Rs. 1,59,949/- within 30 days of the receipt of copy of he order passed by it in, Consumer Complaint No. 271/2005 on 8.5.2007 failing which this amount was to carry inertest @ 7% per annum from the date of compliant, i.e. 6.9.2005 till its realization. A sum of Rs. 1000/- has been allowed as cost of litigation hence this appeal. 6. At the time of hearing Mr. Thakur learned counsel for the appellant raised following three grounds; A) That the vehicle was overlapped. B) That the vehicle was being plied without valid value route permit in violation of Section 66 of the Motor Vehicles Act, 1988 and the rules framed there under as also in violation of the terms and conditions of the insurance policy subject to which the vehicle was insured with the appellant and C) That the driver was not having a valid and effective driving licence on the date of accident. 7. All these please were contested by Mr. Jaswal, learned counsel on behalf of the respondent. Per him, impugned order suffer from no infirmity which may call for interference in this appeal and he prayed for upholding the same by dismissing this appeal with costs. 8. We shall take up the plea of the appellant that the driver was not holding valid and effective driving licence at the time of accident first. In this behalf when a reference is made to the driving licence of Sh. Kuldeep Singh driver it is evident, that its date of issue is 17.1.2001. He was authorised to drive LMV only and was not having an 'endorsement whereby he was licensed to drive a. transport vehicle which is subject matter of this appeal. Admittedly this licence is issued before 28.3.2001 when Central Motor Vehicles Rules, 1989 were amended. As such keeping in view the judgment of the Hon'ble Supreme Court of India in the case of National Insurance Company Ltd., Vs. Annappa Irappa Nesaria Alias Nesargi &Ors, (2008) 3 SCC 464. This plea urged by Mr. Thakur is hereby rejected. Nothing to the contrary has been brought to our notice on behalf of the appellant. Moreover the vehicle as per record was a Light Motor Vehicle within the meaning of Section 2 (21) of the Motor Vehicles Act, 1-988. 9. Annappa Irappa Nesaria Alias Nesargi &Ors, (2008) 3 SCC 464. This plea urged by Mr. Thakur is hereby rejected. Nothing to the contrary has been brought to our notice on behalf of the appellant. Moreover the vehicle as per record was a Light Motor Vehicle within the meaning of Section 2 (21) of the Motor Vehicles Act, 1-988. 9. Now we shall come to the submission of Mr. Thakur, that the vehicle was overloaded. In this behalf he drew our attention to the registration certificate of the vehicle, copy whereof is at page 79 onwards of the complaint file. Its unladen weight was 3330 Kg. and laden weight was 7000 Kgs. Mr. Thakur drew our attention to Annexure OP-6 the opinion of Mr. H.N. Gandrli, Retd., Superintending Engineer, and Approved Affiliated Surveyor/Loss Assessor. According to him the vehicle was carrying 51.30 quintals of sand or- say 5130 Kgs of sand against the authorised capacity of 3970' Kgs. With a view to advance this submission, he also referred to the affidavit of Mr. H.N. Gandhi Ext. OPW-3. When this affidavit and his opinion are read together, it cannot be said by any stretch of imagination as to what was the weight of the sand that was actually there in the vehicle when it met with accident on 7.12.2006. In order to succeed on this plea, appellant was supposed to place on record by way of receipt of weigh bridge or the royalty receipt showing the quantity of sand, royalty for which was paid to establish the total laden weight of vehicle found at the time of accident. Admittedly there is no such evidence, therefore this plea also merits rejection and it is ordered accordingly. 10. Now coming to the next plea of Mr. Thakur, that the vehicle was being plied in violation of the provisions of Motor Vehicles Act. 1988 without route permit as envisaged under Section 66 of the Motor Vehicles Act, 1988. In this behalf he drew our attention to Section 2 (34), as well as to Section 66 (1) of the said Act. 11. Thakur, that the vehicle was being plied in violation of the provisions of Motor Vehicles Act. 1988 without route permit as envisaged under Section 66 of the Motor Vehicles Act, 1988. In this behalf he drew our attention to Section 2 (34), as well as to Section 66 (1) of the said Act. 11. Public place is defined in Section 2(34) of the Motor Vehicles Act, 1988 which reads as under:- "2 (34) "public place" means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage" Section 66(1) of the Act, (supra) deals with the necessity of having permits. It reads as under:- "66 (1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or countersigned by a Regional or State Transport Authority or any prescribed authority authorizing him the use of the vehicle in that place in the manner in which the vehicle is being used: Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorize the use of the vehicle as a contract carriage: Provided further that a stage carriage permit may, subject to any condition$ that may be specified in the permit, authorize the use of the vehicle as a goods carriage either when carrying passengers or not: Provided also that a goods carriage permit shall, subject to any conditions that may be specified in the permit, authorize the holder to use the vehicle for the carriage of goods for or in connection with a trade or business carried on by him. " 12. According to Mr. Thakur the vehicle at the time of accident was plying at a public place as it was uphill journey after loading the sand from Alampur when it met with accident. In this behalf he referred to the FIR Annexure OP-12, and pointed out that the vehicle in question could not have been plied unless it had a valid and effective route permit authorizing the vehicle to be plied on a public place. In this behalf he referred to the FIR Annexure OP-12, and pointed out that the vehicle in question could not have been plied unless it had a valid and effective route permit authorizing the vehicle to be plied on a public place. This stand on behalf of the appellant was seriously contested by Mr. Jaswal, learned counsel for the respondent. Per him there is nothing on record produced by the appellant even remotely, that the sight of accident was public place within the meaning of Section 2(34), (supra), therefore was no question of Section 66 having been violated as alleged on behalf of the appellant. Mr. Jaswal further submitted that there is no pleading to the effect that the vehicle was being plied at a public place although there was pleading that it was being plied without a valid route permit whei1 it met with accident. Thus according to Mr. Jaswal, no exception can be taken to the impugned order and he thus prayed for upholding the same. 13. In our opinion for dealing with this point the core question is, whether the road from Alampur Bias River to Thural is a public place or not. If it is held to be a public place, then there is no escape but for allowing this appeal, otherwise this appeal has to be dismissed. 14. Public place is specifically defined. This matter has been attending attention of different courts and the definition of public place under Section 2(34) of the Motor Vehicles Act, 1988 has been elaborately dealt with. See Division Bench Judgment of Kerala High Court in Chacki Vs. Mariakutty and others, 1987 ACJ 557, Full Bench decision of the High Court of Bombay in Pandurang Chimaji Agale and another Vs. New India Life Insurance Co. Ltd., Pune and others, 1988 ACJ 674, Division Bench order of Guwahati High Court in Nagraj Chhajar Vs. Soma Priya Ghosh and others, 1991 ACJ 1041, Gujarat High Court in M/s Prakash Chemicals Private Ltd. Vs. Krishna Singh Sata Singh, AIR Guj 1993, 121, Full Court decision of Madras High Court of United India Insurance Co. Ltd. Vs. Parvathi Devi and others, 1999 ACJ 1520, und of Calcutta High Court in National Insurance Co. Ltd. Vs. Abdul Khan and others 2006 ACJ 1168. 15. In its recent decision Hon'ble High Court of Himachal Pradesh in FAO (MVA) No.8 of 2006 National Insurance Company Ltd. Vs. Ltd. Vs. Parvathi Devi and others, 1999 ACJ 1520, und of Calcutta High Court in National Insurance Co. Ltd. Vs. Abdul Khan and others 2006 ACJ 1168. 15. In its recent decision Hon'ble High Court of Himachal Pradesh in FAO (MVA) No.8 of 2006 National Insurance Company Ltd. Vs. Smt. Sita Devi and others, decided on 27.8.2009-2010(1) Cur.LJ. (H.P.) after taking note of the above decision as also after considering the dictionary meaning of the word "public place", held that the "factory premises were also a public place within the meaning or Section -2 (34) of the Motor Vehicles Act, 1988 and negated the plea of insurance company to the contrary. 16. So far submission of Mr. Jaswal, that it was for the appellant- insurance company to have proved on record that the road where the vehicle met with 8ccident was a public place is concerned, it is being noted to be rejected. At the risk of repetition, we may observe at this stage that admittedly vehicle had gone from Thural to Alampur Bias River for bringing sand in the truck in question. As per FIR, Annexure OP-12 which was admittedly lodged by the cleaner of the vehicle after accident at Police Station, Lamba Gaon, District Kangra, vide FIR No. 72/2002 that after having loaded the vehicle with sand the truck was going uphill when it had re3ched midway, another truck which was ahead of it stopped, consequently driver of the vehicle which is subject matter of this appeal had also to stop the same. After the vehicle which was ahead of it had moved, driver of this vehicle also tried to move ahead. But instead of moving ahead, it started moving in the reverse direction and consequently it fell into the gorge. 17. At this stage again great emphasis in this behalf was laid by Mr. Jaswal, that unless the road in question is proved by the appellant-insurance company to be a public place it cannot be held to be so in the facts and circumstances of this case. This plea is without substance. If this submission of Mr. Jaswal is taken to its logical end, we should be putting a narrow as well as pedantic interpretation to the term public place as defined under Section 2 (34), (supra). 18. This plea is without substance. If this submission of Mr. Jaswal is taken to its logical end, we should be putting a narrow as well as pedantic interpretation to the term public place as defined under Section 2 (34), (supra). 18. It is admittedly not the case of the respondent, that the road where accident took place when the vehicle was on its uphill journey from Alampur Beas River towards Thural, was either a "private place", or it was not accessible to all and sundry. This stand was rightly not taken by the respondent, because' otherwise it was for the respondent to have explained as to how and under what circumstances the vehicle was moving on .its return journey after loading the truck with sand from Beas river. Besides this there is evidence to suggest that another vehicle was ahead of the vehicle which is subject matter of this appeal on it, uphill journey. This supports our view, that the truck a the time of accident was plying on public place. We an fully satisfied that the vehicle was being plied al a public place. At this stage we may point out that it was not the case of the respondent, that the vehicle vas being plied on the has is of a route permit required for plying the same under the provisions of Motor Vehicles Act, 1988. Once this conclusion is arrived at, then the decision of this appeal need not detain us. 19. No other point is urged. In view of the aforesaid discussion, we are of the view that this appeal deserves to be allowed. Ordered accordingly. As a result of it the order passed by District Forum, Kangra at Dharamshala, Camp at Kangra, in Consumer Complaint No. 271/2005, decided on 8.5.2007 is set aside and consequently the said complaint is dismissed, leaving the parties to bear their own costs. All interim orders passed from time to time in this appeal shall stand vacated forthwith. Learned counsel for the parties have undertaken to collect copy of this order from the Court Secretary free of cost as per rules. Appeal allowed. M.R.B.