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2017 DIGILAW 1391 (KER)

Jayathilakan v. Balakrishnan

2017-11-08

C.T.RAVI KUMAR, MARY JOSEPH

body2017
JUDGMENT : Ravikumar, J. In this appeal, the 2nd respondent in O.P.(M.V)No. 1460 of 2007 on the files of the Motor Accidents Claims Tribunal, Ottappalam calls in question the legality of the judgment and award where under the appellant was held jointly and severally liable along with the first respondent to pay 75% of the amount awarded along with interest thereon. In fact, as per the impugned judgment, the third respondent who is the insurer of the vehicle belonging to the appellant involved in the accident was directed to pay the said amount to satisfy the award to the aforesaid extent with liberty to recover the same from the first respondent and the appellant. For the sake of convenience, the parties are referred to hereafter in this judgment in accordance with their status before the Tribunal unless otherwise specifically mentioned. 2. The relevant facts for the disposal of this appeal are as hereunder:- The petitioner viz., first respondent herein, filed the aforesaid claim petition under Section 166 of the Motor Vehicles Act seeking 5,00,000/- as compensation for the injuries sustained by him in a motor vehicle accident occurred on 14.3.2006 at about 7.40 a.m. at Nottamala. The accident was a collision between the motor cycle bearing Reg.No.KL-9/S-5489 and the bus bearing Reg.No.KL-01/X-2727 belonging to the second respondent (appellant herein). The said vehicle was being driven by the first respondent (second respondent herein) and it was insured with the third respondent. Respondents 4 and 5 are the owner-cum-rider and the insurer of the aforesaid motorcycle. The petitioner was travelling in the said motorcycle on its pillion. Originally, an award was passed by the Tribunal on 7.1.2011 in O.P.(M.V)No. 1460 of 2007. At that point of time, the first and second respondents were ex parte. In fact, the third respondent insurer alone then resisted the claim contending that the accident had caused solely due to the rashness and negligence on the part of the 4th respondent in riding the motorcycle. At the same time, it was averred in its written statement that the bus belonging to the 2nd respondent was not having a valid permit at the time of the accident and therefore, there occurred violation of the policy conditions. At the same time, it was averred in its written statement that the bus belonging to the 2nd respondent was not having a valid permit at the time of the accident and therefore, there occurred violation of the policy conditions. Hence, in terms of the policy of insurance, it got no liability to indemnify the 2nd respondent, the insured owner of the bus, even in case the second respondent was held vicariously liable to compensate the petitioner, it was contended. Evidently, the 5th respondent, the insurer of the motorcycle involved in the accident had also contested the matter. In its written statement, the 5th respondent had alleged that the cause of the accident was the rash and negligent driving of the bus by the first respondent. At the same time, the 5th respondent admitted the insurance coverage of the motorcycle at the time of the accident. The Tribunal considered the questions of negligence, liability to pay compensation as also the quantum of compensation, jointly. After appreciating the evidence on record the Tribunal, as per judgment dated 7.1.2011, held that the accident had occurred due to the combined negligence on the part of the driver of the bus as also the rider of the motorcycle and consequently, apportioned the degree of negligence amongst them as 75:25. As per the said award, an amount of Rs. 2,09,650/- was granted as compensation along with interest at the rate of 7% per annum from the date of the petition till realisation. Respondents 1 to 3 therein viz., the driver, the owner (appellant) and the insurer of the bus involved in the accident were held liable to pay 75% of the compensation and the third respondent was granted the liberty to get it reimbursed from respondents 1 and 2 viz., the second respondent and the appellant herein. The liability to pay the remaining 25% was fixed on respondents 4 and 5. 3. It is also to be noted that the third respondent had filed I.A.No. 672 of 2008 seeking a direction to the second respondent to produce the permit issued in respect of his bus involved in the accident. Owing to the non-production of the permit, despite such a direction, an adverse inference was drawn against the second respondent (the appellant herein). It is also to be noted that the third respondent had filed I.A.No. 672 of 2008 seeking a direction to the second respondent to produce the permit issued in respect of his bus involved in the accident. Owing to the non-production of the permit, despite such a direction, an adverse inference was drawn against the second respondent (the appellant herein). In fact, it was inferred that the second respondent was not having valid permit in respect of the bus belonging to him involved in the accident, at the time of the accident. 4. Subsequent to the passing of the award on 7.1.2011, the second respondent (the appellant herein) filed I.A.Nos. 797 & 798 of 2012 respectively to condone the delay and to set aside the ex parte award passed in the claim petition. It is stated therein that the bus involved in the accident was having a valid permit at the time of the accident and therefore, he sought to condone the delay and to set aside the ex parte award. The petitions were allowed. Subsequently, the second respondent (appellant herein) produced the permit and got it marked as Ext.B3, which was a temporary permit obtained by the second respondent and it was having validity for a period of 20 days from 14.3.2006 to 2.4.2006. As noticed hereinbefore, the accident in question had occurred on 14.3.2006 at 7.40 a.m. Before the Tribunal, the learned counsel appearing for the second respondent/appellant submitted that the second respondent had filed an application for temporary permit earlier. The said statement was disputed by the third respondent insurance company and the third respondent contended that the application for temporary permit was in fact, filed after the accident. In such circumstances, the Tribunal summoned the RTO, Palakkad and examined him as CW1. He produced Ext.C1 which is the copy of application submitted by the second respondent/appellant for temporary permit along with the connected papers, dated 14.3.2006. Evidently, he would admit that Ext.B3 was issued on 14.3.2006. He would also admit that the application was filed and the fee was remitted only on 14.3.2006. Evidently, the fee was remitted at 'Janasevanakendram'. CW1 deposed that 'Janasevanakendram' would start its functioning only from 9 a.m. He would also submit that at the time of issuance of Ext.B3 permit the factum of involvement of the vehicle in the accident in question at 7.40 a.m. was not disclosed. Evidently, the fee was remitted at 'Janasevanakendram'. CW1 deposed that 'Janasevanakendram' would start its functioning only from 9 a.m. He would also submit that at the time of issuance of Ext.B3 permit the factum of involvement of the vehicle in the accident in question at 7.40 a.m. was not disclosed. He would also admit the fact that the bus in question was having a fitness certificate issued in the year 2005. The Tribunal, considered the evidence of CW1 as also Ext.C1. On considering all aspects, the Tribunal arrived at the conclusion that Ext.B3 permit was obtained by the appellant after the accident and consequently held that at the time of the accident, the bus in question belonging to the appellant herein was not having permit. Taking note of the fact that by the time the third respondent had already paid the amount of compensation payable in terms of the award dated 7.1.2011, the Tribunal held that the third respondent could recover the amount from the first and second respondents therein viz., the second respondent and the appellant herein, in terms of the award dated 7.1.2011 which was ordered to form part of the revised award dated 22.3.2013. It is in the said circumstances that this appeal has been preferred. 5. We have heard the learned counsel for the second respondent/appellant herein, the learned counsel for the first respondent/second respondent herein, the learned counsel appearing for the third respondent insurance company and also the learned counsel appearing for the 5th respondent insurance company. 6. It is evident from the submissions made on behalf of the second respondent/appellant as also the pleadings in the appeal that only feeble challenge was made against the finding of the Tribunal that the accident in question had occurred due to the composite negligence on the part of the rider of the motorcycle as also the driver of the bus. It is to be noted that though there is a finding against the 4th respondent, the owner-cum-rider of the motorcycle that the accident in question had occurred also due to his negligence as well and the degree of his negligence was apportioned as 25% and consequently, the 5th respondent was held liable to indemnify the 4th respondent to that extent, neither the 4th respondent nor the 5th respondent preferred any appeal against the judgment and award as also the revised award passed by the Tribunal. It is also to be noted that neither of them had taken up any cross objection in this appeal. Stated shortly, the finding of the Tribunal that the accident was caused due to the composite negligence on the part of the driver and the rider of the vehicles involved was not seriously disputed by the parties, before us. The injured petitioner (first respondent herein) was the pillion rider on the motorcycle belonging to the 4th respondent. Evidently, the petitioner had made the owner-cum-rider as also the insurer of the motorcycle as parties to the claim petition besides the driver, owner and insurer of the bus involved in the accident. In the said circumstances, the finding regarding the cause of the accident as composite negligence as also apportionment of the degree of negligence between the rider of the motorcycle and the driver of the bus cannot be said to be irregular or illegal warranting an interference. In the light of the decision of the Hon'ble Apex Court in Khenyei v. New India Assurance Co. Ltd. and Others ( 2015 (3) KHC 70 (SC)) it is permissible. 7. What was seriously challenged before us by the learned counsel for the second respondent/appellant is against the fixation of the liability on the first and second respondents viz., the second respondent and the appellant herein, jointly and severally and the liberty granted to the third respondent, insurer of the bus belonging to the second respondent, to recover the amount paid to satisfy 75% of the amount awarded along with the interest thereon, from respondents 1 and 2. Though notice was served on the first respondent as also the 4th respondent they have not chosen to enter appearance and contest the matter. 8. The crux of the contention of the second respondent/appellant is that when the third respondent admitted the insurance coverage of the offending bus belonging to him at the time of the accident, there was absolutely no reason or justification for the Tribunal to absolve the third respondent from the liability to indemnify him. A scanning of the impugned judgment and award would reveal that the Tribunal arrived at the conclusion that the bus belonging to the second respondent involved in the accident was not having a valid permit at the time of the accident. The second respondent/appellant sought to assail the finding based on twin contentions. A scanning of the impugned judgment and award would reveal that the Tribunal arrived at the conclusion that the bus belonging to the second respondent involved in the accident was not having a valid permit at the time of the accident. The second respondent/appellant sought to assail the finding based on twin contentions. Firstly, it is contended that Ext.B3 would reveal that on the date of the accident viz., 14.3.2006 the said permit was valid as its validity was for the period from 14.3.2006 to 2.4.2006. The learned counsel appearing for the third respondent resisted the contention and submitted that Ext.B3 permit was obtained by the second respondent only after the accident that too, virtually concealing the fact that on that day, prior to his application for permit, the vehicle had involved in an accident. It is to be noted that there is absolutely no dispute regarding the date and time of the accident involving the vehicles in question. Admittedly, it occurred on 14.3.2006 at about 7.40 a.m. True that, Ext.B3 temporary permit was issued on 14.3.2006 and its validity was from 14.3.2006 to 2.4.2006. Taking into account the nature of the rival contentions the Tribunal summoned the RTO, Palakkad and examined him as CW1. CW1 had produced Ext.C1 dated 14.3.2006, which is the application for permit along with connected papers. Thus, the evidence of CW1 with Ext.C1 would belie the contention of the second respondent that in respect of the offending vehicle he had submitted an application for temporary permit earlier than 14.3.2006. CW1 while being examined, deposed that the application for temporary permit was filed and the requisite fee therefor, was remitted only on 14.3.2006 and the fee was remitted in 'Janasevanakendram'. He would also depose that the said 'Janasevanakendram' where the fee was collected, starts its functioning only from 9 a.m. The evidence of CW1 on the aforesaid lines, was not shattered by the second respondent. The second respondent had not adduced any better evidence to counter the said piece of evidence. He would also depose that the said 'Janasevanakendram' where the fee was collected, starts its functioning only from 9 a.m. The evidence of CW1 on the aforesaid lines, was not shattered by the second respondent. The second respondent had not adduced any better evidence to counter the said piece of evidence. Thus, it can be seen that the evidence of CW1 together with Ext.C1 would go to show that in respect of the bus involved in the accident belonging to the second respondent/appellant, application for temporary permit was filed and the requisite fee therefor was remitted, only after the accident which occurred in the morning of 14.3.2006 at 7.40 a.m. The second respondent/appellant cannot be heard to contend that he had submitted Ext.B3 application for temporary permit and also remitted all requisite fee therefor on 14.3.2006 prior to the accident which had taken place at 7.40 a.m. In the said circumstances, the action on the part of the second respondent in rushing to the RTO office to file an application for temporary permit on 14.3.2006 and in remitting the fee therefor at 'Janasevanakendram' in the morning on 14.3.2006 could be described only as part of his action to cover up his lapse and create documents to show that at the time of the accident the bus in question belonging to him had plied on the road on the strength of a valid permit. As long as the evidence of CW1 was not shattered and his evidence would gain support from Ext.C1 and in the absence of any better contra evidence, the irresistible conclusion that could be drawn is that the said vehicle was plying on public road, at the time of the accident viz., 14.3.2006 at 7.40 a.m., without a valid permit and soon after the accident, the second respondent/appellant applied for temporary permit and also remitted the requisite fee therefor, on the same day itself. Obtaining a permit in respect of a vehicle involved in the accident, after the accident, would not and could not save the situation for the second respondent as despite submission of Ext.B3 application and remittance of the requisite fee therefor, the fact that would remain as plain as a pikestaff is that at the time of the accident the bus in question was not having a valid permit. 9. 9. When faced with such a situation, the learned counsel appearing for the second respondent/appellant relied on the decision of the Apex Court in State of Orissa v. Bijaya C. Tripathy reported in (2004) 7 SCC 139 ). The learned counsel drew our attention to paragraph 5 of the said decision which reads as follows:- "The High Court also appears to have been misread Section 66 of the Motor Vehicles Act. All that Section 66 of the Motor Vehicles Act provides is that the owner of a motor vehicle cannot use the vehicle as a transport vehicle in any public place without a permit. Section 66 therefore, merely prevents use of the vehicle as a transport vehicle without a permit. It does not prohibit driving of such a vehicle on a public road. The vehicle can be driven on a public road so long as it is not used as a transport vehicle. To take an extreme example the owner of such a vehicle may use that vehicle for taking his family out for a picnic. Section 66 will not bar such a use. It is thus clear that even in the absence of a permit the vehicle remains a transport vehicle which is capable of being used on a road so long as the vehicle has a valid certificate of fitness and a valid registration certificate. In such cases it has to be presumed that such a vehicle has been "kept for use" irrespective of whether or not it was actually used on the road." 10. A scanning of the judgment in Bijaya C. Tripathy's case (supra), in the light of the evidence on record would reveal that it is totally inapplicable in the facts and circumstances of this case. The learned counsel could not bring to our attention the evidence let in by the second respondent to establish that the said vehicle was not being used 'as a transport vehicle' at the time of the accident and that it was being used for a purpose which would not attract the bar under Section 66 of the M.V. Act. The learned counsel could not bring to our attention the evidence let in by the second respondent to establish that the said vehicle was not being used 'as a transport vehicle' at the time of the accident and that it was being used for a purpose which would not attract the bar under Section 66 of the M.V. Act. In Bijaya C. Tripathy's case (supra), the Hon'ble Apex Court was considering the legality of a judgment of the High Court of Orissa holding that the vehicle owned by the respondents therein was not liable to pay road tax under the Orissa Motor Vehicles Taxation Act of 1975 as it did not have, during the relevant period, a stage carriage permit. Going by Section 3 under the said Act, tax shall be levied on every motor vehicle used or kept for use within the State at the rate specified in schedule I thereon. The explanation to the said section, discussed in the said judgment would make it clear that if a transport vehicle got a valid certificate of fitness and a valid certificate of registration, then, it would be presumed that the vehicle was kept for use. The Hon'ble Apex Court held that in such circumstances, such a presumption would arise in respect of all motor vehicles, whether they are light motor vehicles or transport vehicles and would also include vehicles which do not have a stage carriage permit. The Hon'ble Apex Court also extracted Section 10 thereunder which mandates that a person not intending to use a motor vehicle for any period must give intimation along with an undertaking and documents to the taxation officer to get exemption from payment of tax during the period. In that case, the High Court of Orissa held that in the absence of any permit the owner of the vehicle in question was not liable to pay road tax in terms of the Orissa Motor Vehicles Taxation Act, 1975. At the same time, the said conclusion and finding of the High Court of Orissa was reversed by the Hon'ble Apex Court and it was held that the vehicle in question has to be presumed as a vehicle kept for use. At the same time, the said conclusion and finding of the High Court of Orissa was reversed by the Hon'ble Apex Court and it was held that the vehicle in question has to be presumed as a vehicle kept for use. It was also held that whether or not it was actually used on the road was not crucial and the relevant aspect is whether it was then 'kept for use' to make the vehicle liable to pay road tax in terms of Section 3 of the said Act. On analysing the contentions of the second respondent it is evident that the attempt is to isolate a particular recital from the said judgment that in terms of Section 66 of the Motor Vehicles Act to highlight the position that use of a transport vehicle on public road without a permit is not a bar under Section 66 of the M.V. Act and what is prevented thereunder is the use of a vehicle as a transport vehicle without a permit. However, the second respondent conveniently skips that portion of the judgment which elucidate the circumstances in which the owner of such a vehicle may use the vehicle without contravening the provision under Section 66 of the M.V. Act. How such a vehicle could be used without contravening the provisions under Section 66 of M.V. Act was elucidated by the Hon'ble Apex Court, as can be seen from paragraph 5 of the said decision extracted hereinbefore. Going by the elucidation thereunder, such a vehicle, even in the absence of a permit, could be used not as a transport vehicle, on a public road so long as the vehicle was having a valid registration of certificate and certificate of fitness. Thus, it is for the owner of the vehicle concerned to plead and prove that at the time of the accident the vehicle was not being used as a transport vehicle and at the same time, it was having valid certificate of fitness and a valid registration certificate. In short, it is for the second respondent/appellant to bring his case within the purview of the said decision based on proven materials. 11. Evidently, in this case, the second respondent remained ex parte at the time of passing of the original award. In short, it is for the second respondent/appellant to bring his case within the purview of the said decision based on proven materials. 11. Evidently, in this case, the second respondent remained ex parte at the time of passing of the original award. Even after filing interlocutory applications to condone the delay and to set aside the ex parte award, and after getting such applications allowed, the second respondent had not cared to adduce evidence, either oral or documentary, to lend support to such a case. He has only produced Ext.B3 which is a temporary permit having validity from 14.3.2006 to 2.4.2006. Thus, it is evident that the second respondent got no case that though the vehicle was not having a valid permit it was not being used as a transport vehicle. The case advanced by him, based on Ext.B3, would go to show that he was only attempting to establish that at the time of the accident the bus was having a valid permit. We have already found that the production of Ext.B3 would not be sufficient to establish that at the time of the accident the bus was having a valid permit. Therefore, the contention of the second respondent/appellant based on the decision of the Hon'ble Apex Court in Bijaya Tripathy's case (supra) is only to be repelled. In the light of the evidence on record and attending factual circumstances we are of the view that the contentions of the second respondent/appellant herein that the third respondent insurance company is liable to indemnify him even though he had plied the vehicle without a permit at the time of the accident, has to be repelled in the light of the decision of the Hon'ble Apex Court in National Insurance Company v. Challa Bharathamma ( 2004 (3) KLT 454 (SC)) rendered after referring to Section 66 as also Section 149(2) of the Motor Vehicles Act. The said provisions read thus:- "66. Necessity for permits (1). The said provisions read thus:- "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 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 conditions that may be specified in the permit, authorise 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, authorise 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 the drawing of any public 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-trailer. (2) The holder of a goods carriage permit may use the vehicle, for the drawing of any public 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-trailer. (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 cleaning, 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 purposes and in accordance with such conditions as the Central Government may, by notification in the Official Gazette, specify in this behalf; (h) omitted (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 place situated in that State or in any other State, 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) omitted (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), subsection (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. 149. Duty of insurers to satisfy judgments and awards against person insured in respect of third party risks. (1) xx xx xx (2) No sum shall be payable by an insurer under subsection (1) in respect of any judgment or award unless, before the commencement of the proceedings in which the judgment or award is given the insurer had notice through the Court or, as the case may be, the Claims Tribunal of the bringing of the proceedings, or in respect of such judgment or award so long as execution is stayed thereon pending an appeal; and an insurer to whom notice of the bringing of any such proceedings is so given shall be entitled to be made a party thereto and to defend the action on any of the following grounds, namely :- (a) that there has been a breach of a specified condition of the policy, being one of the following conditions, namely:- (i) a condition excluding the use of the vehicle- (a) for hire or reward, where the vehicle is on the date of the contract of insurance a vehicle not covered by a permit to ply for hire or reward, or (b) for organized racing and speed testing, or (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle, or (d) without side-car being attached where the vehicle is a motor cycle; or (ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or (iii) condition excluding liability for injury caused or contributed to by conditions of war, civil warrant or civil commotion; or (b) that the policy is void on the ground that it was obtained by the non-disclosure of a material fact or by a representation of fact which was false in some material particular." 12. In the decision in Challa Bharathamma's case (supra), three persons who were travelling in an auto-rickshaw met with an accident on 9.5.1992. In the decision in Challa Bharathamma's case (supra), three persons who were travelling in an auto-rickshaw met with an accident on 9.5.1992. Two of them lost their lives and the other one got seriously injured. The legal representatives of the deceased and also the injured filed separate claim petitions under Section 166 of the Motor Vehicles Act. The insurer resisted the claim on the ground that the insured owner of the said vehicle was not having permit to ply the vehicle and therefore, in terms of the policy of the insurance it got no liability to indemnify the insured owner of the said vehicle. The Motor Vehicle Accident Claims Tribunal, Krishna at Vijayawada accepted the plea. The judgment was called in question before the High Court of Andra Pradesh. A Division Bench of the High Court reversed the judgment of the Tribunal and held the insurer liable to indemnify the insured owner. Thereupon, the insurer took the matter in appeal. That is how the matter came up before the Hon'ble Apex Court. After considering the aforesaid provisions the Hon'ble Apex Court held that in terms of Section 149(2) of the Act, when a vehicle is plied without permit and involved in an accident in the course of its journey, it would be open to the insurer to resist the claim of the owner for indemnifying him in terms of defence available under Section 149(2) of the Motor Vehicles Act. The Apex Court held in paragraph 12 of the said decision as follows:- "High Court was of the view that since there was no permit, the question of violation of any condition thereof does not arise. The view is clearly fallacious. A person without permit to ply a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Plying of a vehicle without a permit is an infraction. Therefore, in terms of Section 149(2) defence is available to the insurer on that aspect. The acceptability of the stand is a matter of adjudication. The question of policy being operative had no relevance for the issue regarding liability of insurer. High Court was, therefore, not justified in holding the insurer liable." (emphasis added) 13. Therefore, in terms of Section 149(2) defence is available to the insurer on that aspect. The acceptability of the stand is a matter of adjudication. The question of policy being operative had no relevance for the issue regarding liability of insurer. High Court was, therefore, not justified in holding the insurer liable." (emphasis added) 13. In the light of the decision in Challa Bharathamma's case (supra) as also in the light of the provisions under Sections 66 and 149(2) of the Motor Vehicles Act as extracted above, we do not find any reason to hold that the Tribunal went wrong in holding that since the bus belonging to the second respondent/appellant involved in the accident met with the accident while plying without a permit, at the time of the accident, the third respondent insurer of the said vehicle is not liable to indemnify the second respondent/appellant. It is to be noted that in Challa Bharathamma's case (supra) also even after arriving at such a conclusion that in such situations the insurer is not liable to indemnify the insured owner who plied his vehicle without permit the Hon'ble Apex Court observed that it would be appropriate for the insurer to satisfy the award though in law it has no liability. Accordingly, liberty was granted to the insurer to recover the amount from the insured. In view of the factual position obtained in this case, it is evident that by plying the vehicle without permit there occurred a clear infraction so as to enable the insurer to take up the defence available in terms of Section 149(2) of the M.V. Act. In such circumstances, in this case also, as per the impugned award, the Tribunal had only issued a direction to the third respondent to pay the amount to the petitioner viz., the first respondent herein and then granted liberty to the third respondent insurance company to recover the said amount paid to satisfy the award from respondents 1 and 2 viz., the second respondent and the appellant herein. We do not find any reason to hold that the impugned award passed by the Tribunal is infected with any illegality or the conclusion arrived at thereunder is against the weight of the evidence, warranting an appellate interference. 14. In the light of the discussion as above, the appeal has to fail and consequently, it is dismissed.