Allahabad High Court
The Oriental Insurance ... vs Smt. Saroj And Ors. on 20 November, 2019
Author: Rakesh Srivastava
Bench: Rakesh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved AFR Case :- FIRST APPEAL FROM ORDER No. - 890 of 2017 Appellant :- The Oriental Insurance Co.Ltd.Lko.Through Senior Div.Manager Respondent :- Smt. Saroj And Ors. Counsel for Appellant :- Vashu Deo Mishra Counsel for Respondent :- Akhilesh Kumar Srivastava, Chandra Bhanu Singh, Hari Shanker Tewari, Mukesh Singh Hon'ble Rakesh Srivastava,J.
1. This first appeal from order has been filed by the Insurer under Section 173 of the Motor Vehicle Act, 1988 (for short 'the Act') against the judgment and award dated 23.08.2017 passed by the Motor Accident Claims Tribunal/ Additional District Judge, Court No. 2, Faizabad in MACP No. 252 of 2015, Smt. Saroj and others v. Laxman Prasad Verma and others.
2. On 03.08.2015, Vinod Kumar was returning to his village Doshpur from Faizabad on his bicycle. At about 9 pm, a bus bearing No. UP-36T-1103, which was being driven rashly and negligently, came from behind and hit his bicycle. As a result of the said collision Vinod Kumar suffered serious injuries in his head and body. He was taken to District Hospital, Faizabad from where he was referred to Trauma Centre, Lucknow. On 05.08.2015, he died while undergoing treatment at Lucknow. A First Information Report was lodged at police station Pura Kalandar, District Faizabad. Smt. Saroj, widow of late Vinod Kumar, along with her daughters Ruchi Verma and Kamimi Verma and son Anuj, filed a claim petition under Section 166 of the Act, claiming compensation of Rs. 16,35,000/- for the unfortunate death of Vinod Kumar in the road accident.
3. Laxman Prasad Verma, the owner of the offending vehicle, the respondent no. 5 herein, in his written statement admitted that he was the registered owner of the offending bus. However, he denied the accident and the involvement of the bus in question. He stated that Hemraj Verma, the driver of the bus, had a valid license. At the time of accident the offending bus was insured with the Appellant and was plying under an Agreement of Contract dated 04.06.2015 with the Uttar Pradesh State Road Transport Corporation (for short ''the Corporation'), a State transport undertaking. It was also stated that the bus was plying on the route as per the permit granted by the Regional Transport Officer in favour of the Corporation. The driver of the vehicle, respondent no. 2 herein, was proceeded against ex-parte since he remained absent despite service of notice upon him in the proceeding.
4. The Appellant also filed its written statement denying the averments made in the claim petition. A general defence was taken that at the time of the accident the driver of the bus did not have an effective driving license and that the bus in question was plying on the road without a valid permit and fitness, in violation of the terms of the policy and as such the Appellant was not liable to indemnify the owner.
5. The Regional Manager of the Corporation (respondent no. 4 herein), in his written statement, admitted the accident. However, he alleged negligence on the part of the deceased. It was admitted that the offending vehicle was running on contract with the Corporation for the period 04.06.2015 to 18.05.2025. It was, however, stated that as per the terms of the contract, if any accident took place during the subsistence of the contract, the responsibility to pay the compensation was that of the owner and the insurance company.
6. The Tribunal framed appropriate issues regarding negligence of the driver of the bus, violation of the terms of the policy, entitlement of the claimants to compensation and the quantum of compensation. The claimants examined Smt. Saroj as PW 1 and Ram Ashish Verma as PW 2. No oral evidence was led on behalf of the owner of the bus, the insurer and the Corporation. The contesting parties filed documentary evidence in support of their respective cases. The respondent no. 4 filed the registration certificate, insurance policy, permit dated 07.01.2009, office order dated 04.06.2015 and the letter dated 30.08.2015 of the Appellant.
7. On an appraisal of oral and documentary evidence on record, the Tribunal, through the impugned award, held that the accident took place due to rash and negligent driving on the part of driver of the bus Hem Raj, as a result of which the deceased suffered grievous injuries and died. The offending vehicle was insured with the Appellant. The Tribunal held that that there was no violation of the insurance policy. The Tribunal, thereafter, on the basis of the post mortem report assessed the age of the deceased between 46 to 50 years. In the absence of convincing evidence, the Tribunal assessed the annual income of the deceased at Rs. 54,000/- and applying the multiplier of 13, awarded the compensation of Rs. 4,91,122/- along with interest @ 7% from the date of application till the time of its actual payment.
8. Feeling aggrieved, the Appellant has filed this appeal. During the hearing of this appeal, Sri Vasudeo Mishra, learned counsel for the Appellant has made only two submissions:
(a) That the permit dated 07.01.2009 related to only 100 buses of Corporation for the route Sultanpur-Kurebhar-Khajurahat-Bikhapur-Faizabad but it did not contain the registration number of the bus in question and as such it could not be established that the offending bus was one of the 100 buses authorized to ply under the said permit; and
(b) That the insurer had attached his bus with the Corporation in violation of the insurance policy and as such the Appellant was absolved of his liability to indemnify the insured.
9. No one has appeared on behalf of the respondent no. 5 and 6, though the name of Sri Hari Shanker Tewari is printed in the cause list. Sri Mukesh Singh, the learned counsel for the respondent nos. 1 to 4 has supported the impugned award. Sri Akhilesh Kumar Srivastava, learned counsel for the respondent no. 7 has submitted that there is no statutory requirement of mentioning the bus numbers in the permit issued to the Corporation under Section 103 of the Act. He has further submitted that under sub-section (1A) of Section 103 of the Act, as applicable in the State of Uttar Pradesh, the Corporation is empowered to hire any vehicle to ply on the route for which permit has been obtained by it from the Transport Authority.
10. Section 66 of the Act emphasizes the necessity for permits. As per Section 66 of the Act a vehicle defined under Section 2(28) of the Act can only be used as a "transport vehicle" as defined under Section 2(47) of the Act, only if it has a "permit" as defined under Section 2(31) of the Act. Sub-section (3) of Section 66 of the Act carves out certain exceptions to sub-section (1). Relevant portion of Section 66 of the Act 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 authorising him the use of the vehicle in that place in the manner in which the vehicle is being used."
11. The provision for grant of permit to the State Transport undertakings, in pursuance of an approved Scheme is provided in Section 103 of the Act. Sub-section (1) of Section 103 of the Act being relevant is reproduced as under:-
"103. Issue of permits to State transport undertakings.-- (1) Where, in pursuance of an approved scheme, any State transport undertaking applies in such manner as may be prescribed by the State Government in this behalf for a stage carriage permit or a goods carriage permit or a contract carriage permit in respect of a notified area or notified route, the State Transport Authority in any case where the said area or route lies in more than one region and the Regional Transport Authority in any other case shall issue such permit to the State transport undertaking, notwithstanding anything to the contrary contained in Chapter V."
12. It appears that the State of Uttar Pradesh approved a Scheme No. 763टीo/XXX708टीo/1950 dated 12.02.1951 under Section 100 of the Act for Sultanpur-Kurebhar-Khajurahat-Bikapur-Faizabad route. After the scheme was approved, the Corporation got the right, to the exclusion of all other persons, to run and operate road transport services on the said route.
13. The Regional Transport Authority, Faizabad under Section 103 of the Act, issued a permit no. 04/फ़ैज़ाo/09 dated 07.01.2009 in favour of the Corporation for running 100 buses of the Corporation till the subsistence of the scheme. The said permit does not contain the bus numbers.
14. In The Oriental Insurance Co. Ltd. v. U.P.S.R.T.C. and others, 2015 (33) LCD 2814, a Division Bench of this Court considered the question as to whether there was any statutory requirement of mentioning the bus numbers in a permit issued under section 103 of the Act to the State Transport Undertaking by the State Transport Authority or the Regional Transport Authority as the case may be. This Court after taking into account the relevant provisions of the Act and the Rules, along with the U.P. State Road Transport Services (Development) Rules, 1974 answered the said question in the negative. Paragraph 9 (relevant portion), 10, 11, 12 and 13 of the said report are extracted below:
"9. The only point which has been put forward by Sri B.C. Pandey, learned counsel for the Insurance Company is that the permit filed before the Tribunal was a photostat copy and the same was not got proved by anybody and the same does not contain any number of bus. The aforesaid argument has to be considered in the light of provision contained under the Act. Section 103 of the Act is as under:
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10. The procedure provided under Rule 10 of the Rules of 1974 is very clear and explicit, which says that as and when an application under Sub-Rule (1) is made, the State Transport Authorities or Regional Transport Authorities, as the case may be, may issue a permit to the State Transport Undertaking for the notified route or notified area accordingly.
11. Counsel for UPSRTC has laid emphasis on the words ''notified route or notified area' are the only requirement as contemplated under the Act and to substantiate his case, he has further drawn the attention of the Court towards Form IV Part A of the permit. Form IV part A goes to indicate that notified route or notified area is the only requirement and nothing more than that. And the requirement is also to the same effect that the State Transport Authorities or Regional Transport Authorities are required to issue permit to the State Transport Undertaking indicating notified route or notified area.
12. Once the requirement for issuance of permit for notified route or notified area has been made, the argument of learned counsel for the appellant that bus number must be mentioned on the permit cannot be accepted and neither termed to be statutory requirement as contemplated under the Act or Rules. The further argument of learned counsel for the appellant is that the said permit has not been proved. It is to be noted that photostat copy of the permit was filed by UPSRTC. The UPSRTC happens to be a public body. The custodian of the original record is the said public body and, therefore, attested photostat copy of the same has been filed by UPSRTC before the Tribunal, therefore, it cannot be said that it is not a correct document and the same cannot be considered."
(emphasis supplied)
15. The judgment in the case mentioned above has been followed by this Court in a number of subsequent cases. In First Appeal From Order No. 194 of 2011, The Oriental Insurance Co. Ltd. Lucknow Thru Manager a co-ordinate Bench of this Court, following the Division Bench decision mentioned in the preceding paragraph, has held as under:
"13. The learned counsel for the respondent no.3 has referred to a judgment of the Division Bench of this Court rendered in FAFO No. 1090 of 2011, decided on 23.7.2015. In this case also similar question was raised and the Division Bench held that once the requirement for issuance of permit for notified route or notified area has been made, the argument of learned counsel for the appellant that bus number must be mentioned on the permit, cannot be accepted. It was also held that no such statutory requirement is contemplated either under the Act or under the Rules. A Co-ordinate Bench of this Court also had an occasion to examine this aspect of the matter in FAFO No. 462 of 2016 and FAFO No. 504 of 2014. In both the cases the Co-ordinate Bench came to the conclusion that Section 103 of the Motor Vehicles Act envisages the procedure of issuance of permit in favour of U.P.S.R.T.C. The Honb'le Single Judge, while deciding the appeals considered the matter in detail and found that once a motor vehicle operated by U.P.S.R.T.C. is covered under Chapter VI of the Act, no permit as provided under Section 66 of the Act is required. It was also considered by the Court that Rule 130 of the U.P. Motor Vehicle Rules 1998 prescribes the procedure for issuance of permit in favour of U.P.S.R.T.C. The prescribed form for obtaining permit is Form No. S.R. 46. This form also clearly mentions the issuance of permit under Section 103 of the Act. The other vehicles which are operated privately or issued permit in form S.R. 29 are regulated by Section 66 of the Act.
14. So far as the validity of permit is concerned, the Rules clearly provide that the permit issued, shall remain valid till the scheme remains in force. Since the scheme of the U.P.S.R.T.C. to ply the buses on specified routes, is still in force therefore, there is no question of expiry of any permit. Although permit was granted under the old Act and the Rules but by the enactment new Act in the year 1998, the permit granted under the old Act remained uneffected. It was clearly provided, that the permits granted under the old Act will continue to remain valid in the new Act.
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18. Having heard learned counsel for the parties and having considered the various provisions of the Act as well as the law on the subject referred by the learned counsel for the parties, I find that the only requirement for the buses belonging to U.P.S.R.T.C. is that they should be used within the notified area on the specified routes mentioned in the permit. There is no requirement that the permit should be issued in respect of the each and every bus belonging to Corporation."
(emphasis supplied)
16. The law in this regard appears to be fairly well settled. In both the cases mentioned above, the appeal was filed by the Oriental Insurance Company, the Appellant herein. The judgment of the Division Bench of this Court was not assailed by the Appellant before the higher forum and has, thus, become final. The conduct of the Appellant in raising the same issue again and again in every case involving the Corporation cannot be countenanced. The first contention of the counsel for the Appellant is accordingly repelled.
17. The second contention of the counsel for the Appellant is also without substance.
18. By Uttar Pradesh Amendment Act 5 of 1993, sub-section (1A) was inserted after sub-section (1) of Section 103 of the Act w.e.f. 16.01.1993. Sub-section (1A) is extracted below:
"(1A) It shall be lawful for a State transport undertaking to operate on any route as stage carriage, under any permit issued therefor to such undertaking under sub-section (1), any vehicle placed at the disposal and under the control of such undertaking by the owner of such vehicle under any arrangement entered into between such owner and the undertaking for the use of the said vehicle by the undertaking."
19. Sub-section (1A) of Section 103 of the Act, empowers the Corporation to hire any vehicle which could be plied on any route for which permit had been issued by the Transport Authority in its favour.
20. In U.P.S.R.T.C. v. Kulsum, (2011) 8 SCC 142, the Apex Court considered the question as to whether in case of an accident of an insured vehicle (in the said case a mini bus) plying under an agreement of contract with the Corporation, on the route as per permit granted in favour of the Corporation, the Insurance Company would be liable to pay compensation or would it be the responsibility of the Corporation or the owner and held as under:
"23. A critical examination thereof would show that the appellant and the owner had specifically agreed that the vehicle will be insured and a driver would be provided by owner of the vehicle but overall control, not only on the vehicle but also on the driver, would be that of the Corporation. Thus, the vehicle was given on hire by the owner of the vehicle together with its existing and running insurance policy. In view of the aforesaid terms and conditions, the Insurance Company cannot escape its liability to pay the amount of compensation.
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26. Thus, in the light of the aforesaid, it is clear that the Insurance Company is trying to evade its liability on flimsy grounds or under misconception of law.
27. On account of the aforesaid discussions, it is crystal clear that actual possession of the vehicle was with the Corporation. The vehicle, driver and the conductor were under the direct control and supervision of the Corporation.
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30. Thus, for all practical purposes, for the relevant period, the Corporation had become the owner of the vehicle for the specific period. If the Corporation had become the owner even for the specific period and the vehicle having been insured at the instance of original owner, it will be deemed that the vehicle was transferred along with the insurance policy in existence to the Corporation and thus the Insurance Company would not be able to escape its liability to pay the amount of compensation.
31. The liability to pay compensation is based on a statutory provision. Compulsory insurance of the vehicle is meant for the benefit of the third parties. The liability of the owner to have compulsory insurance is only in regard to third party and not to the property. Once the vehicle is insured, the owner as well as any other person can use the vehicle with the consent of the owner. Section 146 of the Act does not provide that any person who uses the vehicle independently, a separate insurance policy should be taken. The purpose of compulsory insurance in the Act has been enacted with an object to advance social justice."
(emphasis supplied)
21. In Oriental Insurance Co. Ltd. v. Smt. Asha Devi And Ors, First Appeal From Order No. 310 of 2016, a co-ordinate Bench of this Court, relying upon the case of Kulsum (supra), has held that in case of an accident of a private bus plying under a contract with the Corporation, the liability to pay the compensation would be that of the insurance company. Paragraph 2 and 3 of the said report are extracted below:
"2. The appellant Oriental Insurance Company Ltd. has questioned the validity of the award dated 6.2.2016, passed by the Motor Accident Claims Tribunal, Barabanki in Motor Accident Claim Case No. 8/2013 on the ground that the Bus No. U.P. 41 T/2122 was a private bus and there was no permit as required under Section 66 of the Motor Vehicles Act. The appellant is therefore not liable for payment of compensation because the use of vehicle without valid permit would amount to violation of policy condition. The learned Tribunal has wrongly fixed the liability upon the appellant.
3. The learned counsel for the respondents have on the other hand submitted that it is an admitted fact that when the accident took place, the bus was being used under agreement with U.P.S.R.T.C. It has been held by the Hon'ble Supreme Court in the case of Kulsoom and others reported in 2011 (29) LCD Page 1648 that if the accident is caused by an insured bus plying under the contract attached with U.P.S.R.T.C., the liability to pay compensation to third party would be of the Insurance Company and the Insurance Company cannot escape its liability for payment of compensation. It has further been held that when the vehicle was under the contract of U.P. S.R.T.C., the question of violation of any condition by the owner does not arise. Moreover the requirement to obtain permit under Section 66 of the Act is only for the private owner to ply their transport vehicles on the route but once the vehicle comes under the contract of U.P.S.R.T.C., the Corporation is free to use the bus on notified route on notified area as obtained by it under Section 103 of the Act."
(emphasis supplied)
22. In the present case, it is not in dispute that at the relevant time the offending bus was insured with the Appellant and the policy was very much in force and in existence. It has also not been contended on behalf of the Appellant that the driver was not entitled to drive the said vehicle and in view of the decision of the Apex Court in the case of Kulsum (supra) the Appellant cannot be heard to contend that by attaching his bus with the Corporation, the insured has violated the terms and conditions of the policy and as such the Appellant was absolved of his liability to indemnify the insured.
23. That apart, the Appellant had not raised this contention before the Court below. The record reveals that the insured had entered into a contract with the Corporation only after getting a ''no objection' from the Appellant. The letter dated 30.08.2015 of the Appellant is extracted below:
Þvksfj,.Vy ba';ksjsal dEiuh fyfeVsM fpugV] y[kuÅ lsok esa] {ks=h; izcU/kd m0 iz0 ifjogu fuxe QStkckn ifjogu fuxe ls feuh cl la0 UP 36 T 1103 dks vuqcU/k djus esa chek dEiuh dks dksbZ vkiRrh ugha gS rFkk chek dEiuh }kjk chfer cl ls vuqcU/k vof/k esa dkfjr nq?kZVuk ds QyLo:i ns; izfrdj dk nkf;Ro chek dEiuh dk gksxkA fn vksfj,.V ba';ksjsal dEiuh fyfeVsM fpugV y[kuÅß (emphasis supplied)
24. In the circumstances, in any case, the Appellant is now estopped from contending that by attaching his bus with the Corporation, the insured has violated the terms and conditions of the policy and it was not liable to indemnify the insured.
25. In view of the aforesaid discussion, it is apparent that the appeal is absolutely misconceived and is devoid of merit and is accordingly dismissed.
26. No order as to cost.
Order Date :- 20.11.2019 Pradeep-Anupam/-