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2024 DIGILAW 495 (CHH)

Managing Director, Chhattisgarh Rajya Beej Evam Krishi Vikas Nigam Limited v. Keshar Kumar Tandon, S/o Kedarnath Tandon

2024-07-11

SANJAY K.AGRAWAL

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JUDGMENT : 1. Since the present batch of two appeals and one revision filed by the Owner of the offending vehicle arises out of the same accident and grounds raised are also common, this Court for convenience sake is inclined to decide the same by this common judgment. 2. MAC No.844/2017 arises out Claim Case No.58/2015 (Keshar Kumar Tandon Vs. Shiv Kumar Yadav and Others), CR No.130/2017 arises out of Claim Case No.59/2015 (Parshottam Lal Koshley Vs. Shiv Kumar Yadav and Others) and MAC No.842/2017 has arisen from Claim Case No.60/2015 (Dharmendra Tandon Vs. Shiv Kumar Yadav and Others). 3. Learned Additional Motor Accidents Claims Tribunal, Bemetara, by impugned Awards dated 8.2.2017, in a proceeding under Section 166 of the Motor Vehicles Act, 1988 has awarded a compensation to the tune of Rs.62,928/- to the injured claimant Keshar Kumar Tandon in Claim Case No.58/2015, Rs.5,500/- to the injured claimant Parshottam Lal Koshley in Claim Case No.59/2015 and Rs.4,10,260/- to the injured claimant Dharmendra Tandon in Claim Case No.60/2015 along with interest thereon at the rate of 6% per annum from the date of filing of their respective claim application. While passing the impugned Awards, learned Claims Tribunal has fastened the liability for payment of compensation upon the Chhattisgarh Rajya Beej Evam Krishi Vikas Nigam Limited, owner of the offending vehicle i.e. Majda bearing Registration No. CG04-JC/0680 which met with an accident on 5.7.2014 resulting in injuries to the aforesaid three claimants, and exonerated the insurer of the said vehicle, i.e., Oriental Insurance Company Limited, from its liability to pay the amount of compensation holding that the offending vehicle was being driven by the driver, Shiv Kumar Yadav, in contravention to the policy conditions and therefore Chhattisgarh Rajya Beej Evam Krishi Vikas Nigam Limited being the owner of the offending vehicle was held liable to pay the amount of compensation, which led to filing of the present appeals and revision by the appellant/owner of the offending vehicle. 4. Mr. Vivek Shrivastava, learned Counsel appearing for the appellant/owner, would submit that learned Claims Tribunal has deeply erred in holding the appellant/owner of the offending vehicle liable for payment of compensation, as the appellant/owner comes under exception to Section 66 as provided in clause (b) of sub-section (3) to Section 66 of the Motor Vehicles Act and therefore there was no necessity for them to have the permit to use the vehicle. He would thus pray that the appellant/owner of the offending vehicle is liable to be exonerated from the liability fastened upon them to pay the amount of compensation and the appeals and revision be allowed accordingly. 5. Mr. Raj Awasthi, learned Counsel appearing for the Oriental Insurance Company Limited, i.e., the insurer of the offending vehicle, would submit that exception to necessity for permits under Section 66 of the Motor Vehicles Act was required to be pleaded and proved by the Owner of the offending vehicle, which has not been pleaded by the appellant/owner either before the Claims Tribunal or in the appeal/revision memo and therefore in light of the decision of the Supreme Court rendered in the matter of Amrit Paul Singh and Another v. TATA AIG General Insurance Co. Ltd. and Others, AIR 2018 SC 2662 , the impugned Awards holding the appellant/owner of the offending vehicle liable to pay the amount of compensation do not require any interference and the same deserve to be affirmed. 6. None appeared for the claimants. 7. I have heard learned Counsels appearing for the Owner as well as Insurer of the offending vehicle, considered their rival submissions made herein-above and also perused the record carefully and thoroughly. 8. Admittedly, the appellant/owner of the offending vehicle did not take a specific plea before the Claims Tribunal or in the appeal/revision memo that the offending vehicle was covered under the exception provided in clause (b) of sub-section (3) of Section 66 of the Motor Vehicles Act and therefore they were not required to have the permit to ply the vehicle. The appellant/owner of the offending vehicle, for the very first time, during the course of argument, has sought to take a plea that the they being the local authority for the purpose of clause (b) of sub-section (3) of Section 66 of the Motor Vehicles Act, even if they did not have the permit to use the vehicle as required under Section 66 of the Motor Vehicles Act, the liability should not have been fastened upon the Owner of the offending vehicle rather it ought to have been fastened upon the Insurer of the offending vehicle. 9. 9. The said issue is no longer res integra and stands authoritatively decided in the matter of Amrit Paul Singh and Another (supra) in which their Lordships of the Supreme Court have clearly held that exceptions to necessity for permits under Section 66 are to be pleaded and proved and the use of vehicle in public place without permit is fundamental statutory infraction and observed in paragraphs 23 & 24 as under:- “23. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh ( AIR 2004 SC 1531 ) (supra) and Lakhmi Chand ( AIR 2016 SC 315 ) )(supra) in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the “Tripitaka”, that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh (supra) and other cases pertaining to pay and recover principle. 24. In view of the aforesaid analysis, we do not perceive any merit in the appeal and, accordingly, the same stands dismissed without any order as to costs.” 10. In light of the aforesaid decision rendered in the matter of Amrit Paul Singh and Another (supra), in absence of any specific plea raised and in absence of any evidence led in this regard by the appellant/owner of the offending vehicle, this Court is of the opinion that learned Claims Tribunal is absolutely justified in holding the appellant/owner liable to pay the amount of compensation. 11. Now, so far as the question of exoneration of the Insurance Company from its liability to pay the amount of compensation is concerned, true it is that the finding of learned Claims Tribunal is that on the date of accident, the offending vehicle was being driven by driver, Shiv Kumar Yadav, in contraventions to the policy conditions and therefore due to breach of policy conditions, exonerating the Insurance Company of its liability to pay the amount of compensation, the liability has been fastened upon the appellant being the Owner of the offending vehicle. However, in light of the decision rendered by their Lordships of the Supreme Court in the matter of National Insurance Co. Ltd. v. Swaran Singh & Others, (2004) 3 SCC 297 followed in Amrit Paul Singh and Another (supra), this Court is of the opinion that the present is a fit case where the principle of “pay and recover” can be made applicable so far as the payment of compensation is concerned. 12. Ltd. v. Swaran Singh & Others, (2004) 3 SCC 297 followed in Amrit Paul Singh and Another (supra), this Court is of the opinion that the present is a fit case where the principle of “pay and recover” can be made applicable so far as the payment of compensation is concerned. 12. Accordingly, the finding of learned Claims Tribunal insofar exonerating the Insurance Company of its liability to pay the amount of compensation is concerned the same is hereby modified holding that the entire liability for payment of compensation shall be first upon the Insurance Company with a liberty to recover the amount thereafter from the Owner of the offending vehicle by initiating appropriate recovery proceeding. Rest of the Award shall remain intact. 13. The Insurance Company is directed to deposit the amount of compensation within a period of 30 days from the date of receipt of certified copy of this judgment. This Court is all the more inclined to apply the principle of 'pay and recover' considering the fact that it is a case where the impugned Award was passed more than 07 years ago and the Claimants have till date not received any compensation. 14. Resultantly, the present batch of two appeals and one revision filed on behalf of the Owner of the offending vehicle stand partly allowed to the extent indicated above. 15. There shall be no order as to cost(s).