JUDGMENT Mr. K. Kannan, J. (Oral) - CM No. 13743 & 13744 CII of 2014 For the reasons stated in the applications, delay in re-filing as well as filing the appeal is condoned. FAO No. 4922 of 2014 1. The appellant presents a point which is patently against the provisions of the Motor Vehicle Act. The case merits setting out the law lucidly for future guidance to subordinate courts. It is an admitted case that the vehicle involved in the accident was a goods vehicle. A goods carriage is defined under Section 2 (14) of the Act as a vehicle constructed or adapted for the sole purpose of carrying of goods. A vehicle which is used for carrying on goods is a “transport vehicle” in terms of Section 2 (47). The said section reads that a transport vehicle means, a goods carriage, an educational institution bus and a private service vehicle. A vehicle that carries goods, therefore, conforms to two definitions, namely, goods carriage as well as transport vehicle. A transport vehicle is so defined in order that the legal regulation relating to licencing and permit under the Motor Vehicle Act are complied with. A transport vehicle can be driven only by a person who holds a driving licence in the manner required under Section 3 of the Motor Vehicle Act. Such a vehicle also requires a permit in terms of Section 66 of the Motor Vehicle Act. Section 66 falls within Chapter V, which allows the power of the State to control transport vehicles. Section 66 mandates the necessity of permit and reads as under:- “66. Such a vehicle also requires a permit in terms of Section 66 of the Motor Vehicle Act. Section 66 falls within Chapter V, which allows the power of the State to control transport vehicles. Section 66 mandates the necessity of permit and reads as under:- “66. Necessity for permits.—( 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 use: The holder of a goods carriage permit may use the vehicle, for the drawing of any trailer or semi-trailer not owned by him, subject to such conditions as may be prescribed: 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 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. (2) The holder of a goods carriage permit may use the vehicle, for drawing of any trailer or semi-trailer not owned by him, subject to such conditions as may be prescribed: Provided that the holder of a permit of any articulated vehicle may use the prime-mover of that articulated vehicle for any other semi-trailor. (2) The holder of a goods carriage permit may use the vehicle, for drawing of any trailer or semi-trailer not owned by him, subject to such conditions as may be prescribed: Provided that the holder of a permit of any articulated vehicle may use the prime-mover of that articulated vehicle for any other semi-trailor. (3) The provisions of sub-section (1) shall not apply- (a) to any transport vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise; (b) to any transport vehicle owned by a local authority or by a person acting under contract with a local authority and used solely for road cleansing, road watering or conservancy purposes; (c) to any transport vehicle used solely for police, fire brigade or ambulance purposes; (d) to any transport vehicle used solely for the conveyance of corpses and the mourners accompanying the corpses; (e) to any transport vehicle used for towing a disabled vehicle or for removing goods from a disabled vehicle to a place of safety; (f) to any transport vehicle used for any other public purpose as may be prescribed by the State Government in this behalf; (g) to any transport vehicle used by a person who manufactures or deals in motor vehicles or builds bodies for attachment to chassis, solely for such purpose and in accordance with such conditions as the Central Government may, by notification in the Official Gazette, specify in this behalf; (h) deleted (i) to any goods vehicle, the gross vehicle weight of which does not exceed 3,000 kilograms; (j) subject to such conditions as the Central Government may, by notification in the Official Gazette, specify, to any transport vehicle purchased in one State and proceeding to a place, situated in that State or in any other Stale, without carrying any passenger or goods; (k) to any transport vehicle which has been temporarily registered under section 43 while proceeding empty to any place for the purpose of registration of the vehicle; (l) deleted (m) to any transport vehicle which, owing to flood, earthquake or any other natural calamity, obstruction on road, or unforeseen circumstances, is required to be diverted through any other route, whether within or outside the State, with a view to enabling it to reach its destination; (n) to any transport vehicle used for such purposes as the Central or State Government may, by order, specify; (o) to any transport vehicle which is subject to a hire-purchase, lease or hypothecation agreement and which owing to the default of the owner has been taken possession of by or on behalf of, the person with whom the owner has entered into such agreement, to enable such motor vehicle to reach its destination; or (p) to any transport vehicle while proceeding empty to any place for purpose of repair. (4) Subject to the provisions of sub-section (3), sub-section (1) shall, if the State Government by rule made under section 96 so prescribes apply to any motor vehicle adapted to carry more than nine persons excluding the driver.” 2. The necessity of a permit is to be seen in the context of what is permissible for an insurer to plead in a defence for an action involving the vehicle which is insured but it does not have a permit. Section 149 (2) sets out the line of defences which an insurance company could take. One of the defences, which is permissible, is set out in clause 2, sub-clause (a) (i) (c) which reads as under:- “Section 149 - Duty of insurers to satisfy judgments and awards against persons insured in respect of third party risks.— (1) ........ (2) (a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:- (b) ...... (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or” 3. If the vehicle is not allowed by the permit by which the vehicle is used where vehicle is a transport vehicle, then that shall allow for insurer to plead that there had been a breach of condition in terms of policy. If a permit does not exist, but it was put to a purpose which could have been allowed only by the permit, then an insurance company could plead a violation. It must be taken as inbuilt provision that complete lack of permit makes impermissible for a person to use a vehicle which the law mandates the requirement of a permit. It is one thing to state that there existed a permit but there had been some violation of terms of permit but quite another to state that there existed no permit at all. 4. Learned counsel appearing on behalf of the appellant places reliance on a judgment of this court in National Insurance Company Limited Versus Kamlesh Kaur and others 2006 (3) R.C.R. (Civil) 634, where a Division Bench was said to be holding that there was no requirement of a permit for a goods vehicle within the State like a transport vehicle. I have gone through the judgment. The case makes no such proposition. I have gone through the judgment. The case makes no such proposition. We have re-produced Section 66 above, which is clear in its expression that no motor vehicle can be used as a transport vehicle in any public place, whether such vehicle was actually carrying passengers or goods. A goods carriage does not cease to have the requirement of permit merely because at the relevant time goods were not transported. A vehicle which is adapted or constructed to carry goods itself becomes a goods carriage requiring permit, if it is put to use in public place. To a owner of a vehicle which is constructed or adapted his vehicle to carry goods within his own compound which is not a public place, there might be no requirement for a permit. Such a situation could exist within a factory, or within enclosed spaces where right of entry is restricted and the general public has no right of way. The scheme of the Motor Vehicle Act providing for compensation itself requires as a sine quo non that the accidents must be in a public place. It is the public element of user of the vehicle that gives a right of action to any person who is injured or representatives of the deceased to make a claim for damages. If there is a motor vehicle that is constructed or adapted for carrying goods and it was also put in a public place, then a permit is necessary under Section 66 . A stage carriage of a route permit or condition which relates to a specification of its route or a deviation from route may give rise to other consequences and that by itself will not take as use of vehicle other than for a purpose for which the permit was issued. While straying away from route permit cannot be a valid defence under Section 149, the absence of permit for a goods carriage is surely a defence which is inbuilt under Section 149. 5. The provision contained under Section 66 (1) allows that a goods carriage permit may authorize the holder to use the vehicle for carriage of goods in connection with the trade and the business being carried on by him and such a holder may also use the vehicle subject to specification under the permit. There are exceptions set out under clause (3) of Section 66. There are exceptions set out under clause (3) of Section 66. The exceptions include use of a transport vehicle for the police or ambulance or for conveyance of corpse or towing a disabled vehicle for any public purpose which the State may specify. This is with reference to the purpose for which the goods are transported when the permit may not be necessary. There is another class which may also not require permit as such, when the vehicle is owned by the Central Government and is used for purpose unconnected with the commercial enterprise. A third category is a category of vehicle whose weight and attachment to such goods falls within the specified limit. Admittedly, none of the exceptions as provided under Section 3 operates to the benefit of the appellant. One of the exceptions given under clause (p) is that a vehicle, which is admittedly not registered and it was at the relevant time proceeding empty to any place for the purpose of registration of the vehicle. If the owner was attempting to bring his case within any of the exceptions, he was required to set forth defences, applicability of such exceptions. In this case, contention was that the vehicle was having a temporary registration number. In such event, the defence must be that the vehicle was travelling empty and proceedings towards the place for the purpose of registration. In this case, however, there was no defence that the vehicle was driven under exceptional situation mentioned in law. On the other hand, the defence was one of complete denial of involvement of the vehicle in the accident. If the involvement of the vehicle itself was brought out, then the necessary consequence is that it was a transport vehicle put in public place and without permit, all of which allow for a valid defence for an insurer to plead denial of liability. 6. The decision mentioned in Kamlesh Kaur’s case (supra) sets out the decision in National Insurance Co. Ltd. Versus Chela Bharathamma (2004 (4) RCR (Civil) 399, where the Supreme Court was actually considering a case of involvement of a vehicle without a permit. It was a case where the court denied the right of indemnity to the owner. The Division Bench was rejecting a case placed by the insurance company on a reasoning that the insurance company had not pleaded want of permit as a ground of challenge. It was a case where the court denied the right of indemnity to the owner. The Division Bench was rejecting a case placed by the insurance company on a reasoning that the insurance company had not pleaded want of permit as a ground of challenge. The court found, as a matter of fact, that no witness or document had been produced to show that no permit was obtained by the owner. The court held, after referring to National Insurance Company Versus Swaran Singh 2004 (2) RCR (Civil) 114, that mere absence of fake or invalid licences were not themselves defences available to insurer of a third party to deny liability. The insurer has to prove that the insured was actually of negligence and that further there had been a breach on the part of the owner of the vehicle which shall be the burden on the insurer. 7. Learned counsel for the appellant is completely wrong in making reliance on this judgment to make it appear as though the court was holding that no permit is necessary for goods vehicle. The Division Bench does not hold so in any part of the judgment. If, at all, the head notes by the publisher, is erroneous and misleading. The judgment, on the other hand, records a point of law that it is the duty of the insurer to plead breach of violation of the terms and in that case the insurer had not proved the breach. The Division Bench was not making any exception to the judgment of Chella Bharathamma. On the other hand, in this case the decision in the Chella Bharathamma’s case squarely apply. 8. Learned counsel also places reliance on a judgment of this court rendered by a co-ordinate Bench (in FAO No. 1325 of 2012 titled Naresh Kumar and another Versus Gurmeet Kaur and others decided on 31.10.2013) that has relied on this judgment to say that a vehicle registered in the State of Haryana was not required to have a permit. I submit with respect that the decision is erroneous and rendered per incurium by relying on the misleading head note prepared by the law journal. The judgment has wrongly applied the decision of the Division Bench, which set out the law correctly but has wrong head notes. 9. Learned counsel also places reliance on the judgment of Uttarakhand High Court in United India Insurance Co. The judgment has wrongly applied the decision of the Division Bench, which set out the law correctly but has wrong head notes. 9. Learned counsel also places reliance on the judgment of Uttarakhand High Court in United India Insurance Co. Ltd. Versus Prakashi Devi and another 2011 ACJ 1683 . That was a case where the driver died in the accident in the course of employment. The insurer disputed the liability on the ground that the offending vehicle was being plied without permit. The court found the failure on the part of the insurer to verify the permit as making impossible situation of exoneration of liability. If this logic must be extended that the insurance company cannot even plead that the driver did not have a valid driving licence, it could be argued just as well that before issuing policy of insurance, the insurer is also required to satisfy itself that the driver had a driving licence. It is common knowledge that a policy of insurance would merely declare that the liability would exist in all circumstances and the condition for use shall be that the vehicle shall be entrusted to a person having an effective driving licence. This itself ought to take the responsibility for the owner to employ a person having driving licence, if he himself is not driving. When a statute mandates the requirement of a permit, it will be futile to make out a special pleading on behalf of the owner that the insurer who extends the policy cover should satisfy himself that a permit is also taken before an insurance policy is issued. It can be a matter of exigency and a sound commercial practice for insurer to make certain that the vehicle is pliable and it has a valid permit. If the owner did not have such a permit, it will be unfair to the insurer to deny what law specifically empowers it to take in defence and establish to its benefit. 10. The liability cast on the owner without providing for indemnity was, under the circumstances, perfectly justified and the appeal is without merit. The same is dismissed. ---------0.B.S.0------------