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Himachal Pradesh High Court · body

2019 DIGILAW 1605 (HP)

United India Insurance Co. Ltd. v. Nagin Kumar

2019-10-24

SURESHWAR THAKUR

body2019
JUDGMENT : Sureshwar Thakur, J. The instant appeal, stands, directed by the aggrieved insurer, against, the award rendered, upon, MACP No. 91-N/II/2013/2012, by, the learned Motor Accident Claims Tribunal-II, Kangra at Dhrmshala, where through, vis-a-vis, disabled claimant, compensation amount, borne in a sum of Rs. 9,94,145/-, stood assessed, and, thereon interest, at the rate of 8% per annum, hence stood levied, (i) and, was ordered, to, commence from the date of filing the petition, till its deposit or realization, (ii) and, the apposite intemnificatory liability, stood fastened, upon, the insurer-appellant herein. Also, the disabled claimant becoming hence aggrieved by the compensation, assessed qua him, hence also through, Cross- Objections No. 94 of 2018, seeks enhancement, of, the compensation amount, assessed, vis-a-vis, him. 2. The learned counsel, appearing for the aggrieved insurer, does not contest, the validity, of, returning, of, affirmative findings, upon, issue No.1, and, appertaining, to, the relevant mishap, being a sequel of rash, and, negligent manner, of, driving, of, the offending vehicle, by respondent No.1. The learned counsel, appearing for the aggrieved insurer, also, does not contest, the, validity of findings, returned, upon, issue No.4, and, appertaining, to, respondent No.1, holding, at the relevant time, a valid, and, effective driving license, for, hence driving, the, offending vehicle. However, he contends, that, with RW-2, in his deposition, comprised in his cross-examination, (i) making a deposition, vis-a-vis, the route permit, assigned, vis-a-vis, the offending bus, rather by the authority concerned, rendering it plyable, from, Jawali, to, Jasur, and, also from Jasur, to, Jawali, and, back, (ii) yet, with his also thereafter, making, a, deposition, vis-a-vis, the route, whereon at the relevant time, the, offending bus become plied, rather not falling within the ambit, of, the afore assigned route permit, vis-a-vis, the offending bus, rather by the authority concerned, thereupon, he contends that the mandate, as, borne in Clause (c), of, Section 149 (2)(a)(i)(c), of, the Motor Vehicles Act, mandate whereof, is, extracted hereinafter:- ?xxx for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport vehicle or xxx becoming breached, (iii) and, also he contends, that, with the afore being, a, fundamental breach, vis-a-vis, the terms, and, conditions, of, the contract, of, insurance, thereupon, the, saddling, of, the apposite indeminificatory liability, upon, the insurer, becoming grossly inapt. 3. 3. However, for the reasons, to be assigned hereinafter, the afore submissions, cannot be accepted, by this Court, as, the deepest, and, the most incisive reading of the apt Clause (c), of, Section 149 (2)(a)(i)(c), of, the Motor Vehicles Act, (i) makes, hence clear, and, apparent up surging, vis-a-vis, (ii) upon a route permit becoming assigned, vis-a-vis, a transport vehicle, by the authority concerned, though not with explicity, and, with specificity, excluding, the, plying of the vehicle concerned, hence outside, the, area/zone, qua wherewith, the apt route permit becomes assigned, (iii) rather, the conspicuous phraseology, of, the apt clause-(c), wherefrom, the apt gathering, vis-a-vis, the espoused fundamental breach becoming occasioned, and, becoming sparked, rather, upon, a, vehicle traveling beyond the area/zone, of, the apt route permit, is, borne, in, ?for a purpose not allowed by the permit? (iv) and, the latter being enjoined, to be, combinedly read, along with, the, necessity, of, the afore permit, being statutorily assignable, only, vis-a-vis, a, ?transport vehicle?. The afore manner(s), of, readings thereof, brings forth, inferences qua, the bringing's of, a transport vehicle, for, legally forbidden purpose, hence obviously becoming an ?unlawful purpose?, or, a purpose falling outside, the, apt category, qua wherewith, an apt registration, is, assigned, by the authority concerned, (v) and, bearing in mind, the, afore connotation being assignable, vis-a-vis, the afore conspicuous phraseology, as, is embodied in Clause (c), of, Section 149 (2)(a)(i)(c) of the Motor Vehicles Act, (vi) thereupon with no evidence becoming adduced, vis-a-vis, at the relevant time, the vehicle being plied, for, an unlawful purpose, or, for, any statutorily interdicted purpose, (vii) rather, with the offending vehicle being used, by its driver, for traveling, to, the house, of, his relative, (viii) and, when the afore traveling, does not constitute, any, unlawful purpose, (ix) thereupon when, at, the relevant stage, hence a mishap involving, the, offending vehicle, rather occurred, at, the relevant site, plyings whereof, theeon's is, though beyond the domain, of, the route permit, assigned qua therewith, by, the authority concerned, would not per-se invite, the, requisite statutory embargo, as, finds encapsulation, in, Section 149 (2)(a)(i) (c), of, the Motor Vehicles Act. 4. 4. Be that as it may, even if assumingly, the vehicle driven by respondent No.1, was plied beyond, the, area/zone, of, the route permit, issued qua therewith hence by the authority concerned, thereupon also, it, not per-se hence begetting attraction thereon, vis-a-vis, the apposite statutory embargo, (a) as the relevant accident evidently occurred, on, a National Highway, (b) and, when the route permit, assigned qua the offending vehicle, by, the authority concerned, does not fall within, the, domain, of, the National Highway, whereon(s) rather the ill-fated accident evidently occurred, (c) besides when no adduced evidence hence exists, qua the impermissible route(s), whereon, the offending vehicle became plied, rather not occurring, in, vicinity, of, the apt validly assigned route permit, (d) thereupon, it, would, be, befitting to conclude qua respondent No.1, taking his vehicle, to ply it, within the closest area/zone, qua wherewith, a valid route permit, stood assigned, qua the offending vehicle, by, the authority concerned, for, his thereafter plying, the, same within, the, vaildly assigned route. Pre-eminently, also with the offending vehicle, not, plying outside, the territory of Himachal Pradesh, (e) and, there along with, bearing in mind also, the afore factum, vis-a-vis, the, proven, and, unchallenged ascription, of, commission of =tort of negligence', by respondent No.1, and, hence involving, the, offending vehicle, though, happening outside, the, zone qua wherewith, a, route permit become assigned, visibly hence, not becoming demonstrated, by any adduced cogent evidence, to, hold a close nexus, vis-a-vis, the espoused breach, of, the, route permit, as, stood, validly assigned qua the offending vehicle, (f) and, evidence whereof, may be embodied, in, a condition existing in the relevant, insurance cover, rather completely forbidding, the, plying(s) thereof, on, the inapt route, besides, imperatively, the, validly assigned route being also made with application, of, mind rather by the assigning authority, vis-a-vis, given the fullest plyable condition, of, the assigned route hence necessitating its imparative plyings thereon(s), hence for obviating occurrence(s), of, accident(s), (g) contrarily, with the apt offending vehicle becoming driven, at the relevant stage, on, a National Highway, and, hence obviously, with, the National Highway, being concludable to be, in a more befitting plyable condition, vis-a-vis, the validly assigned route(s), hence also, constrains this Court, to, conclude, that, any minimal deviation, from, the route permit, even for, a, private purpose, of, respondent No.1, not inviting, the, statutory embargo, occurring, in, the apposite Clause (c), of, Section 149 (2)(a)(i)(c) of the Motor Vehicles Act, as, the afore nexus rather becomes unsatiated, and, thereupon, the, saddling, of, the indemnificatory liability, upon, the insurer, is, apt. 5. However, the disabled claimant, as echoed, by, his ensuring adducing, a, disability certificate, borne in Ext. PW-2/A, stood entailed, with, a, 25% disability, of, fracture half femur right with fracture tibia left with stiff knee, (i) and, with PW-2, during the course, of, his deposition, making echoings, vis-a-vis, the disabled injuries being, a, sequel, of, an ill-fated accident, (ii) and, further onwards, his, making, a, testification qua hence the disabled claimant, becoming, precluded, to, perform hard work, of, a mason, and, also with the disabled claimant, vis-a-vis, his possessing, the, requisite skill, in, masonry work, making a testification, qua, therewith, and, also placing on record, a, passport, wherein unveilings occurr qua his being granted, a, visa, to, travel, to, UAE, (iii) thereupon, his testification qua his rendering employment, as, a mason in UAE, obviously acquires both vigor and tenacity. Even though, the disabled claimant has testified, vis-a-vis, from his proven avocation, of, a skilled mason, his hence drawing a per mensem salary of Rs. 26,000/-, yet, the learned Tribunal, has, reduced his per month salary, to, Rs. 10,000/-, and, the afore deduction, is obviously both reasonable, and, tenable, (v) given the nature of, the, proven avocation, being performed by the disabled claimant, prior to his becoming entailed, with, the disabling injuries, moreso, when no adduced evidence hence exists, and, comprised, in, the, engagings, vis-a-vis, the, services, of, the disabled claimant, his becoming liquidated per mensem, wages, in, sums, lessor, than, as, stand, comprised, in the impugned award. 6. For the foregoing reasons, there is no merit, in, the appeal filed, by the insurer, and, is hence dismissed, and, the impugned award, is, maintained, and, affirmed. The cross-objections filed by the disabled claimant, also, stands dismissed. All pending applications also stand disposed of. Records be sent back forthwith.