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Uttarakhand High Court · body

2011 DIGILAW 426 (UTT)

MEERA RAWAT v. UNITED INDIA INSURANCE CO.

2011-07-12

B.S.VERMA

body2011
JUDGMENT Heard learned counsel for the parties. 2. Appeal No. 363 of 2008, has been preferred by the owner of the vehicle - Smt. Meera Rawat, wife of Jalam Singh, to set aside the award dated 28.05.2008, passed by Additional District Judge/II Fast Track Court, Dehradun in MAC Case No. 72 of 2005, whereby an amount of Rs. 3,65,000/- along with 6% interest was awarded as compensation in favour of respondents no. 2 to 4 (claimants) and liability was imposed on the owner of the vehicle in view of the fact that on the fateful day, the owner of the vehicle was not having the permit to ply the vehicle. 3. Appeal No. 365 of 2008 is preferred by United India Insurance Co. Ltd. to set aside same impugned award dated 28.05.2008, whereby the liability to pay compensation has been held on the Insurance Company. 4. Since the controversy involved in both the appeals is same and the impugned award is also same, therefore, both the appeals are being decided together. 5. The undisputed facts arising out of the appeals are that on the fateful day i.e. 20.03.2005, the owner of the vehicle bearing registration No. U.A.-07F-0497 was not having permit to ply the vehicle. In written statement, filed on behalf of the Insurance Company, specific plea has been taken that since the owner of the vehicle was not having valid permit on the fateful day, therefore, the liability to pay compensation is on the owner of the vehicle and Insurance Company is not liable to pay compensation. Issue No. 5 has been framed to this effect and learned tribunal has held that since the owner had obtained the permit on 29.03.2005, for a period of five years, therefore, the owner of the vehicle himself admits that permit is required for plying the vehicle. It is further observed in the impugned award that since it is a commercial vehicle and was carrying the passengers without permit, therefore, Insurance Company shall pay the amount of compensation and may recover the same from the owner of the vehicle. 6. It is pertinent to mention here that no other ground has been raised or pressed by the Insurance Company as well as by the owner of the vehicle. 6. It is pertinent to mention here that no other ground has been raised or pressed by the Insurance Company as well as by the owner of the vehicle. The impugned award has been assailed by the owner of the vehicle only on the ground that since the vehicle weight is 2750 Kilograms and in view of the Sub-clause (i) sub-section (3) of Section 66 of Motor Vehicles Act, read with Rule 66 of U.P. Motor Vehicles Rules, there is no necessity to have a permit if gross vehicle weight is under 3000 kilograms. Therefore, learned tribunal has committed manifest error of law in holding that the vehicle requires a permit to carry passengers. 7. Appeal No. 365 of 2008, has been filed on the ground that since the owner of the vehicle was not in possession of valid permit on the fateful day, therefore, liability cannot be fastened on the Insurance Company and in view of the Hon’ble Apex Court Judgment reported in 2004(7) Supreme 1, National Insurance Co. Ltd. Vs. Challa Bharathamma and others, it is held that where a vehicle which met with an accident resulting in death of victim travelling in it was being plied without permit, the Insurance Company could not be made liable in the award. However, the insurer after satisfying the award may recover the amount of compensation from the owner of the vehicle by way of execution. 8. Learned counsel for the appellant drew attention of this Court to provision of sub-clause (i) of sub-section (3) of Section 66 of Motor Vehicles Act, read with Rule 66 of U.P. Motor Vehicles Rules. Said sub-clause (i) of Sub-section (3) of Section 66 of Rule 66, are being reproduced as under :- “(i) to any goods vehicle, the gross vehicle weight of which does not exceed 3,000 kilograms:” “Rule 66. Permit for a motor vehicle adopted to carry more than nine persons-Subject to the provisions of sub-section (3) of Section 66, the provisions of sub-section (1) of the said section shall apply to any motor vehicle adopted to carry more than nine persons excluding the driver.” 9. Learned counsel for the appellant further contended that when the Insurance Company rejected the damage claim of the owner of the vehicle, the appellant approached the District Consumer Forum. Learned counsel for the appellant further contended that when the Insurance Company rejected the damage claim of the owner of the vehicle, the appellant approached the District Consumer Forum. The District Consumer Forum on 24.09.2008, partly allowed the complaint No. 39 of 2006 and awarded compensation amounting Rs. 1,89,500/- along with interest @ 9% per annum. The order of District Consumer Forum was assailed by the Divisional Manger, United India Insurance Company Limited, before the State Consumer Disputes Redressal Commission, Uttarakhand by way of filing First Appeal No. 224 of 2008, on the similar ground, which has been raised here in the appeal. State Consumer Disputes Redressal Commission vide its order dated 07.07.2009, dismissed the appeal by rejecting the contention of the Insurance Company and confirmed the order passed by District Consumer Forum. 10. Learned counsel appearing on behalf of United Insurance Company, has contended that Sub-clause (i) of sub-section (3) of Section 66 of Motor Vehicles Act, would be attracted at the case in hand and the liability of the owner to pay compensation shall remain as it is. Since the Sub-clause (i) of Sub-section (3) of Section 66 of Motor Vehicles Act, speaks about goods vehicles. In reply thereto, the learned counsel has placed reliance upon the Rules, which were framed in exercise of power under Section 66(4) of Motor Vehicles Act. Rule 66 of U.P. Motor Vehicles Rules, 1998, also speaks about the goods vehicles, which carries passengers and provides that subject to provisions of sub-section (3) of Section 66, the provisions of sub-section (1) of the said section shall apply to any motor vehicle adopted to carry more than nine persons excluding the driver. Therefore, in view of Rule 66 of Motor Vehicles Rules, the argument of learned counsel for Insurance Company cannot be accepted for the reason that the Rule 66 applies for goods vehicle also which carries passengers less than 9, excluding the Driver and sub-clause (1) of Section 66 of Motor Vehicles Act, would apply to those vehicles which carries passengers more than 9 in number. In the case at hand, undisputedly, the passengers in the vehicle in question were 6 in number, therefore, permit was not required for the same. In the case at hand, undisputedly, the passengers in the vehicle in question were 6 in number, therefore, permit was not required for the same. This question has also been dealt with by the State Consumer Disputes Redressal Commission, Uttarakhand and it was held in case referred about between the same parties that if the weight of the vehicle is less than 3,000 kilograms, there is no need of permit to ply the vehicle. This fact is not disputed that the vehicle in question weighed 2750 kilograms. From the perusal of the photo copy of the policy (annexed as annexure no. 4 to the writ petition), which has been filed on behalf of the Insurance Company it is mentioned in one of the column that Insurance Company has also covered the risk of the vehicle, which fails under sub-section (3) of Section 66 of Motor Vehicles Act, 1988. It is pertinent to mention here that the counsel for the appellant made a statement at Bar that the amount of compensation awarded by the Consumer Forum has been (sic) after the order of the State Consumer Disputes Redressal Commission, Uttarakhand. 11. Therefore, learned tribunal has committed error of law in holding that the permit was required to ply the vehicle. In view of the discussion held above, the appeal (No. 363 of 2008), deserves to be allowed. The appeal is allowed and owner of the vehicle is absolved from the liability to pay compensation to the claimants, therefore, Insurance Company cannot recover the amount of compensation from the owner of the vehicle. The same question is involved in appeal No. 365 of 2008, filled on behalf of United India Insurance Company Limited. Therefore, in view of the judgment passed in A.O. No. 363 of 2008 consequently, A.O. No. 365 of 2008, stands dismissed. Statutory amount deposited in the Registry be remitted to the MACT concerned. The same can be withdrawn by the owner of the vehicle in A.O. No. 363 of 2008 and by the claimants in A.O. No. 365 of 2008. Interim order dated 02.09.2008 (in A.O. No. 365 of 2008), stands hereby vacated.