Rajasthan High Court - Jodhpur
United India Insurance Co. Ltd vs Ravaram And Ors on 2 September, 2024
Author: Nupur Bhati
Bench: Nupur Bhati
[2024:RJ-JD:35304]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 2729/2016
United India Insurance Co. Ltd., Station Road Barmer Through
Its Authorized Signatory, United India Insurance Co. Ltd, 2Nd
Floor, 74-A, Bhati N-Plaza, Main Pal Road, Jodhpur Raj.
----Appellant
Versus
1. Samaaram S/o Chimnaram, Village Dindava, Tehsil
Chouthan, District Barmer.
2. Tulcha Ram S/o Ramlal, Sadram Ki Beri, Tehsil And Police
Station Sedwa, District Barmer.
3. Omprakash S/o Purshotumdass, Barmer
----Respondents
Connected With
S.B. Civil Misc. Appeal No. 2692/2016
United India Insurance Company Limited, Station Road Barmer
Through Its Authorized Signatory, United India Insurance Co.
Ltd, 2Nd Floor, 74-A, Bhati N-Plaza, Main Pal Road, Jodhpur Raj
----Appellant
Versus
1. Hukmaram S/o Khumaram, Tehsil- Sanchore District-
Jalore
2. Tulcha Ram S/o Ramlal, Sadram Ki Beri Tehsil And Police
Station Sedwa, District- Barmer
3. Omprakash S/o Purshotumdass, Barmer
----Respondents
S.B. Civil Misc. Appeal No. 2693/2016
United India Insurance Company Limited, Station Road Barmer
Through Its Authorized Signatory, United India Insurance Co.
Ltd, 2Nd Floor, 74-A, Bhati N-Plaza, Main Pal Road, Jodhpur Raj
----Appellant
Versus
1. Hukmaram S/o Khumaram, Village- Aarva Tehsil- Sanhore
District- Jalore
2. Chainaram S/o Khumaram, Village- Aarva Tehsil- Sanhore
District- Jalore
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3. Bheraram S/o Khumaram, Village- Aarva Tehsil- Sanhore
District- Jalore
4. Jaharam S/o Khumaram, Village- Aarva Tehsil- Sanhore
District- Jalore
5. Tulcha Ram S/o Ramlal, Sadram Ki Beri Tehsil And Police
Station Sedwa, District- Barmer
6. Omprakash S/o Purshotumdass, Barmer
----Respondents
S.B. Civil Misc. Appeal No. 2698/2016
United India Insurance Co. Ltd., Station Road Barmer Through
Its Authorized Signatory, United India Insurance Co. Ltd, 2Nd
Floor, 74-A, Bhati N-Plaza, Main Pal Road, Jodhpur Raj.
----Appellant
Versus
1. Kewlaram S/o Alaram, Dindava Tehsil Chouthan, District
Barmer
2. Tulcha Ram S/o Ramlal, Sadram Ki Beri, Tehsil And Police
Station Sedwa, District Barmer.
3. Omprakash S/o Purshotumdass, Barmer
----Respondents
S.B. Civil Misc. Appeal No. 2701/2016
United India Insurance Co., Ltd., Station Road Barmer Through
Its Authorized Signatory, United India Insurance Co. Ltd, 2Nd
Floor, 74-A, Bhati N-Plaza, Main Pal Road, Jodhpur Raj.
----Appellant
Versus
1. Ravaram S/o Chimnaram, Village Dindava, Tehsil
Chouthan, District Barmer.
2. Tulcha Ram S/o Ramlal, Sadram Ki Beri, Tehsil And Police
Station Sedwa, District Barmer.
3. Omprakash S/o Purshotumdass, Barmer
----Respondents
S.B. Civil Misc. Appeal No. 2735/2016
United India Insurance Co., Ltd., Station Road Barmer Through
Its Authorized Signatory, United India Insurance Co. Ltd, 2Nd
Floor, 74-A, Bhati N-Plaza, Main Pal Road, Jodhpur Raj.
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[2024:RJ-JD:35304] (3 of 23) [CMA-2729/2016]
----Appellant
Versus
1. Phooli W/o Chimnaram, Kolio Ki Basti, Dindava, Tehsil
Chouthan District Barmer
2. Samaram S/o Chimnaram, Kolio Ki Basti, Dindava, Tehsil
Chouthan District Barmer
3. Mani W/o Samaram, Kolio Ki Basti, Dindava, Tehsil
Chouthan District Barmer
4. Tulcha Ram S/o Ramlal, Sadram Ki Beri, Tehsil And Police
Station Sedwa, District Barmer.
5. Omprakash S/o Purshotumdass, Barmer
----Respondents
S.B. Civil Misc. Appeal No. 2738/2016
United India Insurance Company Limited, Station Road Barmer
Through Its Authorized Signatory, United India Insurance Co.
Ltd, 2Nd Floor, 74-A, Bhati N-Plaza, Main Pal Road, Jodhpur Raj
----Appellant
Versus
1. Jamna W/o Late Shri Dhannaram, Village- Madavav,
Tehsil-Chouthan, District- Barmer
2. Nimbaram S/o Late Shri Dhannaram, Village- Madavav,
Tehsil-Chouthan, District- Barmer
3. Poonmaram S/o Late Shri Dhannaram, Village- Madavav,
Tehsil-Chouthan, District- Barmer
4. Manglaram S/o Late Shri Dhannaram, Village- Madavav,
Tehsil-Chouthan, District- Barmer
5. Moolaram S/o Late Shri Dhannaram, Village- Madavav,
Tehsil-Chouthan, District- Barmer
6. Tulcha Ram S/o Ramlal, Sadram Ki Beri Tehsil And Police
Station Sedwa, District- Barmer
7. Omprakash S/o Purshotumdass, Barmer
----Respondents
S.B. Civil Misc. Appeal No. 2739/2016
United India Insurance Company Limited, Station Road Barmer
Through Its Authorized Signatory, United India Insurance Co.
Ltd, 2Nd Floor, 74-A, Bhati N-Plaza, Main Pal Road, Jodhpur Raj
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----Appellant
Versus
1. Paru W/o Late Sh. Kanjiram, Village- Tarla, Tehsil-
Chouthan, District- Barmer
2. Ramesh S/o Late Sh. Kanjiram, Village- Tarla, Tehsil-
Chouthan, District- Barmer
3. Pnchu W/o Ramesh, Village- Tarla, Tehsil- Chouthan,
District- Barmer
4. Tulcha Ram S/o Ramlal, Sadram Ki Beri Tehsil And Police
Station Sedwa, District- Barmer
5. Omprakash S/o Purshotumdass, Barmer
----Respondents
For Appellant(s) : Mr. Anil Bachhawat with
Mr. M.P. Goswami
For Respondent(s) : Mr. Sanjay Gupta for Owner and
Driver
HON'BLE DR. JUSTICE NUPUR BHATI
Judgment REPORTABLE Reserved on: 27/08/2024 Pronounced on: 02/09/2024
1. These appeals have been preferred by the Appellant/Insurance Company under Section 173 of the Motor Vehicles Act, 1988 (hereinafter as 'the Act') against the common judgment and award dated 11.08.2016(hereinafter as 'the impugned award') passed by learned MACT whereby the learned tribunal has partly allowed claims of the respective claimants in MAC Case no. 414/2015 (Injury matter), MAC Case No. 413/2015 (Injury matter), MAC Case No. 416/2015 (Death matter), MAC Case No. 417/2015 (Death matter), MAC Case No. 415/2015 (Injury matter), MAC Case No. 419/2015 (Death Matter), MAC Case No. 589/2015 (Death matter) and MAC Case No. 418/2015 (Downloaded on 03/09/2024 at 08:55:48 PM) [2024:RJ-JD:35304] (5 of 23) [CMA-2729/2016] (Death matter) and the Appellant/Insurance Company along with the Owner and driver of the offending vehicle has been held jointly and severally liable to pay the compensation. These appeals have been filed seeking quashing of the impugned award in respect of the above Claim petitions. As these appeals arise out of the same accident the facts of appeal no. S.B. C.M.A. No. 2729/2016 are being taken, illustratively.
2. Briefly stated, the facts of the case are that on 26.08.2012 the claimants, after getting Eye Surgery/Eye Treatment at an Eye Health Camp organized at Barmer Netra Jyoti Hospital, Barmer were returning to their respective destinations along with their relatives onboard the Mini Bus bearing registration no. RJ04 PA 0580(hereinafter as 'the offending vehicle') of Barmer Jan Seva Samiti, which was being driven negligently and at high speed by Tulcharam (hereinafter as 'Driver/Respondent No. 2') and at around 12:00PM - 12:30PM on 26.08.2012, the vehicle turned turtle as a result of burst of its rear tyre near Surat ki Beri on N.H.-15. As a result of the accident some of the passengers travelling in the vehicle died and others sustained injuries. On the written complaint of one- Ramesh who was also traveling in the vehicle, the police registered FIR No. 151/12 and after investigation submitted a Chargesheet against the Driver/Respondent No. 2. The claimants filed their respective claim petitions before the learned tribunal seeking compensation.
3. It was averred in the claim petitions by the claimants that Omprakash (Respondent no. 3/Owner) and Driver/Respondent No. 2 are the owner and driver of the vehicle respectively and the (Downloaded on 03/09/2024 at 08:55:48 PM) [2024:RJ-JD:35304] (6 of 23) [CMA-2729/2016] vehicle was insured with the appellant/insurance company therefore, they all are jointly and severally liable to pay the compensation.
4. It was contended by the Respondent no. 3/owner and Respondent no. 2/driver in their common reply to the claim petition before the learned tribunal that the accident did not happen due to the negligent driving. They further contended that the vehicle was under the control and ownership of Barmer Jan Seva Samiti, Barmer (A NGO which operates Shelter Homes and Netra Jyoti Hospital, where economically weak eye-patients are provided eye treatment/surgeries free of cost). They further averred in their reply that in alternative if the learned tribunal finds any negligence on the part of the driver/respondent no. 2 then the appellant/insurance company should be held liable as the vehicle was insured with it.
5. It was contended by the appellant/insurance company in its reply to the claim petition before the learned tribunal that around 45-40 passengers were travelling in the vehicle at the time of the accident however, as per the registration certificate of the vehicle its seating capacity is only of 20 passengers. It was further alleged by the appellant/insurance company that the vehicle did not have any permit and fitness at the time of the accident which is a clear violation of the insurance policy hence, the appellant/insurance company is not liable to pay.
6. As per the pleadings of the parties, the learned tribunal framed four issues which are being reproduced as follows: (Downloaded on 03/09/2024 at 08:55:48 PM)
[2024:RJ-JD:35304] (7 of 23) [CMA-2729/2016] "(1) आया दिनांक 26.08.2012 को दिन के करीब 12.30 बजे धन्नाराम मिनी बस वाहन संख्या आर.जे.04-0580 से धोरीमन्ना होकर अपने गांव जा रहा था तब एन०एच० 15 पर सुरते की बेरी के पास विप्रार्थी संख्या 1 ने बस को तेजगति व लापरवाहीपूर्वक चलाते हुए बस का पिछला टायर फटने से बस पलट गई, जिससे बस में सवार धन्नाराम, के वलाराम, हुकमाराम, खुमाराम, सामाराम, कानजीराम, चिमनाराम व रवाराम के गंभीर चोटें आई तथा धन्नाराम, के वलाराम, खुमाराम, कान्जीराम व चिमनाराम की दौराने इलाज मृत्यु हुई ? (2) क्या क्लेम प्रार्थना पत्र में वर्णितानुसार प्रार्थीगण वांछित प्रतिकर राशि बतौर क्षतिपूर्ति अप्रार्थीगण से संयुक्ततः एवं पृथक-पृथक रूप से प्राप्त करने का अधिकारी है? (3) विप्रार्थी संख्या 3 द्वारा अपने जवाब की विशेष आपत्तियों में उठाई गई प्रतिरक्षा का क्लेम के प्रार्थना पत्र पर क्या प्रभाव पडेगा ? (4) अनुतोष ?"
7. The claimants examined 8 witnesses and exhibited 59 documents(Ex. 1 to 59). On the other hand, the appellant/insurance company examined Khemchand ('NAW1' - manager of the appellant/insurance company) and exhibited 4 documents(Ex. A1 to A4). And the respondent no. 3/owner examined Omprakash ('NAW2' -President of Barmer Jan Seva Samiti) and exhibited 1 document(A-5).
8. After hearing the parties, the learned tribunal vide the impugned award dated 11.08.2016 partly allowed the respective claim petitions filed by the claimants and held the appellant/insurance company, respondent no. 3/owner and respondent no. 2/driver jointly and severally liable.
9. Aggrieved by the impugned award, the appellant/insurance company has preferred these appeals.
10. It is submitted by the learned counsel appearing on behalf of the appellant/insurance company that approximately 40 persons were travelling in mini-bus (hereinafter as 'the vehicle') when it met with the accident on 26.08.2012 however, the Registration (Downloaded on 03/09/2024 at 08:55:48 PM) [2024:RJ-JD:35304] (8 of 23) [CMA-2729/2016] Certificate (Ex.-4) clearly mentions the siting capacity of the vehicle as only 21 including the driver. Thus, the vehicle was clearly overloaded.
11. It is further submitted by the learned counsel appearing on behalf of the appellant/insurance company that the insured vehicle had not obtained permit to ply the vehicle at route in rural area to transport any passenger and the same is contrary to Section 66 of the Act and also of the conditions of the insurance policy. Therefore, the learned tribunal erred in fastening the liability on the appellant/insurance company when the insurance policy was issued with a condition limiting its liability to the effect that the vehicle must have a valid permit.
12. It is further submitted by the learned counsel appearing on behalf of the appellant/insurance company that the vehicle was registered as a "Light Commercial Vehicle" in the name of Barmer Jan Seva Samiti, Barmer and was insured with the appellant/insurance company at the time of accident and the Insurance Policy(Ex.-A1) was a "Passenger Carrying Commercial Vehicle Liability Only Policy". He further submits that an ambulance is registered under Section 41(4) of the Act as a type of vehicle mentioned in point no. (xiv) in table given in the Appendix X of the Central Motor Vehicles Rules, 1989, thus, the vehicle in question was a light commercial vehicle and it was neither registered/endorsed as an ambulance by the registering authority nor was insured as an ambulance by the appellant insurance company. He further submits that no exemption from tax under Rule 28 of the Rajasthan Motor Vehicles Taxation Rules, (Downloaded on 03/09/2024 at 08:55:48 PM) [2024:RJ-JD:35304] (9 of 23) [CMA-2729/2016] 1951 was ever sought or provided in the favour of the vehicle and the respondent no. 3/owner has not placed anything on record in this respect during his chief deposition as NAW-2. He further submits that the certificate issued by Collector(Ex.-A5) to Barmer Jan Seva Samiti does not in itself changes the nature of the vehicle from a Public service vehicle into an ambulance. He further submits that the design and construction of the vehicle in question shows that no emergency medical equipments or support instruments were installed in the vehicle for transporting any patient. On the contrary the vehicle was a passenger vehicle as evident from its 19 seats for the passengers. He further submits that NAW-1 in his cross examination has stated that the vehicle was a passenger vehicle. Therefore, in absence of any lawful document to show that the vehicle was an ambulance the learned tribunal has wrongly presumed the vehicle as an ambulance and extended the benefit of Section 66(3)(c) of the Act to it while ignoring the registration certificate of the vehicle.
13. It is further submitted by the learned counsel appearing on behalf of the appellant/insurance company that the indemnification by virtue of the contract can only be ordered when reciprocal promises within the policy are fulfilled. Therefore, the tribunal has erred in fastening the liability on the appellant/insurance company despite there being a violation of the condition of the insurance policy that the liability of the appellant/insurance company will only arise if the insured vehicle has valid permit under Section 66 of the Act.
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14. It is further submitted by the learned counsel appearing on behalf of the appellant/insurance company that the learned tribunal has erred in considering the vehicle as an ambulance while ignoring the legal obligation of the insured in respect of the change in use of the offending vehicle from the public service vehicle to ambulance without legal formalities. He further submits that mere contention that at the time of the accident the vehicle was transporting patients does not make it an ambulance so as to extend the benefit of Section 66(3)(c) of the Act.
15. The learned counsel appearing on behalf of the appellant/insurance company placed reliance on the judgment of the Supreme Court in National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517 to contend that the appellant/insurance company can avoid its liability under Section 149(2) of the Act, as in the present case there was absence of a permit and also the vehicle was transporting around 40 passengers which was more than its capacity of 19 passengers and the appellant/insurance company charged premium for risk of only 19 passengers.
16. Per contra, it is submitted by the learned counsel appearing on behalf of the Respondent no. 3/owner that Section 41(4) of the Act is applicable only when the vehicle is modified. He further submits that the vehicle was being used for transporting patients at the time of the accident and thus was being used as an ambulance, therefore, the permit was not required as per Section 66(3)(c) of the Act.
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17. It is further submitted by the learned counsel appearing on behalf of the Respondent no. 3/owner that the vehicle was being used by the Barmer Jan Seva Samiti for transporting patient. Thus, the use and purpose of the vehicle must be considered while identifying whether the vehicle transporting the patients at the time of the accident was an ambulance or not.
18. The learned counsel appearing on behalf of the Respondent no. 3/owner placed reliance on National Insurance Co. Ltd. Vs Swaran Singh and Ors.[(2004) 3 SCC 297] to contend that the liability is upon the appellant/insurance company to establish that the vehicle was being used for any other purposes than that of an ambulance.
19. Heard learned counsel appearing on behalf of the parties and perused the material available on record and judgments cited at the Bar.
20. It is evident from Section 41 of the Act that the registering authority issues a Registration Certificate under Section 41(4) of the MV Act, prescribing the type of the motor vehicle, being a type which the Central Government may specify taking into account its design, construction and use of the motor vehicle, as per the specifications made in the Official Gazette. Section 41(4) of the MV Act reads as follows:
"41. Registration, how to be made.--
(4) In addition to the other particulars required to be included in the certificate of registration, it shall also specify the type of the motor vehicle, being a type as the Central Government may, having regard to the design, construction and use of the motor vehicle, by notification in the Official Gazette, specify."(Downloaded on 03/09/2024 at 08:55:48 PM)
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21. Moreover, this Court finds that it is only after the Registering Authority is satisfied that the particulars contained in the application for registration are true and that the vehicle for which registration certificate is applied for, complies with the requirements of this Act and the rules made thereunder, upon production of the said vehicle either before the Registering Authority itself or any such authority as the State Government may by order appoint, can proceed with the registration of the vehicle under Section 44 of the MV Act, 1988(as it stood before the Motor Vehicles (Amendment) Act, 2019). The relevant provision is reproduced as under:
"44. Production of vehicle at the time of registration.
--The registering authority shall before proceeding to register a motor vehicle or renew the certificate of registration in respect of a motor vehicle, other than a transport vehicle, require the person applying for registration of the vehicle or, as the case may be, for renewing the certificate of registration to produce the vehicle either before itself or such authority as the State Government may by order appoint in order that the registering authority may satisfy itself that the particulars contained in the application are true and that the vehicle complies with the requirements of this Act and of the rules made thereunder."
21. Thus, this Court finds that only after the Registering Authority had been satisfied with the compliance made under the Act as well as the rules made thereunder, a Registration Certificate (Ex.4) was issued in favour of the offending vehicle (RJ-04-P-580) registering the vehicle in the name of Barmer Jan Seva Samiti while recognizing the offending vehicle as 'Light Commercial (Downloaded on 03/09/2024 at 08:55:48 PM) [2024:RJ-JD:35304] (13 of 23) [CMA-2729/2016] Vehicle' with Body Type mentioned in the Registration Certificate as "Mini-Bus" and not as an Ambulance. Therefore, it cannot be presumed that the offending vehicle was an Ambulance in the absence of clear stipulation made in the Registration Certificate of the offending vehicle which requires the Registering Authority to specify the body type of vehicle under Section 41(4) of the Act.
22. This Court also takes into consideration that the Central Government in exercise of its powers conferred by sub-section (4) of Section 41 of the Motor Vehicles Act, 1988, vide S.O. 1248 (E), dated 5th November, 2004, published in the Gazette of India, Extra., Pt. II, Sec. 3(ii), dated 5th November, 2004, has specified the types of motor vehicles as mentioned in columns 1 and 2 of the table therein for the purpose of Section 41(4) of the Act and the ambulance has been mentioned in point no. (xiv) of column no. 1(i.e., Transport Vehicle) of the table. Also the definition of 'Ambulance' as provided therein means a vehicle that is specially designed or constructed or modified and equipped and intended to be used for emergency transportation of persons who are sick, injured, wounded or otherwise incapacitated. The relevant provision is reproduced as under:
"(a) "Ambulance" means vehicle specially designed, constructed or modified and equipped and intended to be used for emergency transportation of persons who are sick, injured, wounded or otherwise incapacitated."
However, in the present case, the respondent no. 3/owner, who is the president of the 'Barmer Jan Seva Samiti, Barmer' has admitted in his deposition (as NAW-2) before the learned tribunal that the offending vehicle was regularly being used for (Downloaded on 03/09/2024 at 08:55:48 PM) [2024:RJ-JD:35304] (14 of 23) [CMA-2729/2016] transporting eye-patients to and from Eye Hospital which is run by the Barmer Jan Seva Samiti, Barmer and also for distributing free medicines. The relevant part of the deposition of respondent no. 3/owner is as under:
"1. बाड़मेर मुख्यालय पर "बाड़मेर जन सेवा समिति" के नाम से एक रजिस्टर्ड पंजिबद्ध संस्था कार्यरत है जिसका मैं अध्यक्ष हूँ। उक्त संस्था पिछले लगभग 40 वर्षों से एक स्वयं सेवी, समाज सेवी संस्था व धर्माथ ट्रस्ट के रुप में वर्ष 1976 से काम करती है तथा इसके अधीन रैन बसेरा व नैत्र ज्योति चिकित्सालय का संचालन किया जाता है जिसमें हजारों व्यक्तियों के आँखों का निःशुल्क ईलाज किया जाकर, आपरेशन किया जाता है और दवाईयों व चश्मे निःशुल्क उपलब्ध करवाये जाते हैं।
इस प्रकार इस संस्था द्वारा राष्ट्रीय अंधता निवारण कार्यक्रम में मुख्य भूमिका निभाते हुए पुनीत कार्य किया जाता है। जिला कलेक्टर, बाड़मेर व मुख्य चिकित्सा एवं स्वास्थ्य अधिकारी द्वारा राष्ट्रीय अंधता निवारण कार्यक्रम में संस्था द्वारा निभाई जा रही भूमिका के लिये जारी किया गया प्रमाण पत्र दिनांक 26.02.2009 पेश कर रहा हूँ जो प्रदर्श ए-5 है जिसकी फोटो प्रति पेश प्रदर्श ए- 5 ए है।
2. कि "बाड़मेर जन सेवा समिति" द्वारा संचालित नैत्र चिकित्सालय में आँखों के रोगियों को गांवों से लानें, ले जानें व उन्हें निःशुल्क दवाईयाँ वितरण करनें के संबंध में संस्था के स्वामित्व का एक मिनि बस वाहन सं० RJ-04-PA-580 का संचालन भी किया जाता था जिस वाहन का प्रयोग अनन्य रुप से रोगियों को बाद आपरेशन अपनें गांवों में पँहुचानें व लानें के लिये किया जाता था , जिसमें उनसे किसी प्रकार की किराये आदि की राशि वसूल नहीं की जाती थी और यह एक जन सेवा के कार्य के रुप में एम्बूलेन्स का कार्य करती थी। चूंकि यह वाहन अनन्य रुप से एक एम्बूलेन्स की तरह रोगियों को निःशुल्क लानें का ही कार्य करती है है इसलिये इसके परमिट की आवश्यकता नहीं रहती है।
3. कि दिनांक 26.08.2012 को तथाकथित दुर्घटना के दिन वाहन नैत्र रोगियों को बाद आपरेशन, उनके गांवों में भी हमारी पहुचाने के सरथा का कार्य में लिप्त था, किसी प्रकार के कोमर्शियल यूज में नहीं आ रहा था ने ही मरीजों से कोई किराया लिया गया था। वक्त दुर्घटना इस वाहन को ड्राईवर द्वारा तेज गति व लापरवाही से (Downloaded on 03/09/2024 at 08:55:48 PM) [2024:RJ-JD:35304] (15 of 23) [CMA-2729/2016] नहीं चलाया जा रहा था अपितु रास्ते में इस वाहन का पिछला टायर अचानक फट गया जिससे ड्राईवर का नियन्त्रण वाहन से हट गया और दुर्घटना कारित हो गई जिसमें इस वाहन के ड्राईवर की कोई लापरवाही नहीं थी और यह एक एक्ट ऑफ गॉड था, इसलिये प्रार्थीगण को क्षतिपूर्ती अदा करने की कोई जिम्मेवारी विप्रार्थीगण की नहीं बनती है।..."
Thus, it is an admitted fact that the offending vehicle was regularly being used to transport the patients who had already undergone an eye surgery at the Eye Treatment/Surgery Camp at Barmer Netra Jyoti Hospital, Barmer and at the time of accident the offending vehicle was not being used to transport the sick, injured, wounded or otherwise incapacitated in emergency but was transporting the patients, who have undergone eye surgery/treatment, to their respective destination in their village and also there was no complications after the surgery as is evident from the fact that the patients were being transported to their respective villages thus, the offending vehicle was not being used for emergency transportation of patients. Further, nothing has come on record to show that the offending vehicle was having any kind of medical instrument/equipment that are necessary for transportation of patients in a medical emergency. Therefore, the learned tribunal erred in coming to the conclusion that inasmuch as the vehicle was transporting the patients who had undergone eye surgery, thus, the vehicle is an Ambulance.
23. Furthermore, this Court, after arriving at a finding that the offending vehicle is a Mini-Bus registered in the category of a "Light Commercial Vehicle" not an ambulance, finds that the exemption under Section 66(3)(c) of the Act cannot be extended (Downloaded on 03/09/2024 at 08:55:48 PM) [2024:RJ-JD:35304] (16 of 23) [CMA-2729/2016] to it as the same can be extended only to the vehicles solely being used for ambulance purposes. Section 66(3) 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:
Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise 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 use of the vehicle for the carriage of goods for or in connection with a trade or business carried on by him.
xxxx (3) The provisions of sub-section (1) shall not apply-- xxxx
(c) to any transport vehicle used solely for police, fire brigade or ambulance purposes;"
24. This Court observes that the word used in Section 66(3)(c) of the Act is "solely", which signifies that only when the vehicle is being used solely for ambulance purposes, the said sub-section would be applicable. Further, Section 66(3)(c) of the Act has to be read with the definition of 'Ambulance' as provided in the Central (Downloaded on 03/09/2024 at 08:55:48 PM) [2024:RJ-JD:35304] (17 of 23) [CMA-2729/2016] Motor Vehicles Rules, 1989 in the table under the heading "Types of Motor Vehicles at a Glance" which sufficiently shows that the ambulance is used for emergency transportation of persons who are sick, injured, wounded or otherwise incapacitated. However, it is clear from the material available on record that in the present case the offending vehicle was not being used for transporting the patients in case of medical emergency but was merely being used to transport the patients, who had undergone eye surgery/eye treatment at the health camp orgnized by the Barmer Jan Seva Samiti, from the Barmer Netra Jyoti Hospital to their respective villages, which cannot be said to be an a case of emergency transportation. Moreover, the offending vehicle was registered as "Light Commercial Vehicle" with body type mentioned as 'Mini-bus' and on the other hand it is admitted by the respondent no. 3/owner in his deposition as already discussed in the above paragraphs that the offending vehicle was regularly being used for transporting the patients, who had undergone eye-surgery/treatment, to their respective villages and also for distribution of free medicines. Further, the Certificate of Recognition(Ex. 5) that was issued by the collector merely recognizes the efforts of the Barmer Jan Seva Samiti, Barmer in organizing health camps to provide free cataract surgeries, which shows that the organization was regularly involved in organizing such camps and used the offending vehicle to transport patients to and from health camps and not for emergency transportation of patients. Thus, the use of the vehicle cannot be considered as solely for the ambulance purposes. Therefore, in the considered (Downloaded on 03/09/2024 at 08:55:48 PM) [2024:RJ-JD:35304] (18 of 23) [CMA-2729/2016] view of this Court, the exception of not having the permit under Section 66(3)(c) of the Act cannot be extended to the offending vehicle.
25. Further, in the present case, the respondent no. 3/owner, has admitted in his deposition (as NAW-2) before the learned tribunal that the offending vehicle did not require any permit as it was solely being used for transporting eye-patients to and from Eye Hospital run by the Barmer Jan Seva Samiti, Barmer and also for distributing free medicines.
26. Moreover, upon perusal of the record, it is seen that admittedly the offending vehicle was not having a valid permit and even after the legal notice dated 17.02.2014 (Ex. 2) was sent by the appellant/insurance company to the respondent no. 3/owner to produce the permit and fitness certificate of the offending vehicle, nothing was placed on record to demonstrate that the offending vehicle had a valid and effective permit as defined under Section 2(31) of the MV Act. Section 2(31) of the MV Act reads as follows:
"(31) "permit" means a permit issued by a State or Regional Transport Authority or an authority prescribed in this behalf under this Act authorising the use of a motor vehicle as a transport vehicle;"
Thus, the offending vehicle, being registered as a "Light Commercial Vehicle" ought to have a valid permit for authorising its use, which it did not have at the time of the accident. Also, as per the provision of Section 66(1) of the Act the owner is required to have a permit for using the vehicle as a transport vehicle in any (Downloaded on 03/09/2024 at 08:55:48 PM) [2024:RJ-JD:35304] (19 of 23) [CMA-2729/2016] public place and shall use it in accordance with the conditions of the permit granted by the authority.
27. This Court also takes into consideration the judgment passed by the Hon'ble Apex Court in the case of Amrit Paul Singh and Ors. Vs. TATA AIG General Insurance Co. Ltd. & Ors reported in MANU/SC/0582/2018 wherein it has been observed that in the absence of permit, coupled with the fact that the insured had failed in demonstrating by way of producing evidence of valid permit existing, the insurer cannot be held liable. The relevant paragraph is reproduced 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 (supra) and Lakhmi Chand (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 (Downloaded on 03/09/2024 at 08:55:48 PM) [2024:RJ-JD:35304] (20 of 23) [CMA-2729/2016] 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. The said directions are in consonance with the principles stated in Swaran Singh (supra) and Ors. cases pertaining to pay and recover principle."
Therefore, when admittedly, there was no valid permit existing in favour of the offending vehicle and nothing has come on the record with regard to the existence of a valid and effective permit, the appellant/Insurance Company cannot be held liable.
28. Thus, after coming to the conclusion that the vehicle did not have a valid and effective permit, this court is not required to examine as to how many passengers were being transported in the offending vehicle at the time of the accident.
29. This Court also finds that the submission of the counsel for the respondent that since the vehicle had been registered in the name of the organisation, the owner cannot be held liable, is baseless inasmuch as the organisation being a legal entity, would naturally require a person to work as a driver in order to ply the said vehicle. For the purpose of the same, this Court takes into consideration the judgment passed by the Coordinate Bench of this Court in the case of Manager, M/s JK Trust Gramin Vikar Yojana, Jodhpur v. ICICI Lombard General Insurance Company Ltd. & Anr. [S.B. Civil Misc Appeal No. 1757 of 2013 decided on 09.01.2014]. The relevant part of the judgment is reproduced as under:
(Downloaded on 03/09/2024 at 08:55:48 PM)
[2024:RJ-JD:35304] (21 of 23) [CMA-2729/2016] "Admittedly, in the present case the insured, owner of the vehicle is JK Trust Gramin Vikas Yojna, which is a charitable trust and the deceased was employee of the said trust. The observations made by the Tribunal that the Insurance Company has not charged any premium for the employee appears to be misplaced in the present case, inasmuch as, the vehicle is owned and insured in the name of public charitable trust and therefore, under the instructions of the said institution, it is the employee only, who would ride the said vehicle as the institution being a legal person cannot drive the said vehicle."
Thus, in the present appeals, too, even when the vehicle had been registered in the name of the organisation, Barmer Jan Seva Samiti as per the Registration Certificate (Ex.4), it would require a driver to drive the offending vehicle and also the respondent no.3/ owner was the president of the said organisation.
30. Thus, this Court finds that firstly, the offending vehicle, duly registered in accordance with Section 41(4) and 44 of the MV Act in the category of a Light Commercial Vehicle, with its body type specified as a "Mini-Bus" cannot be considered as an Ambulance merely on the basis of the fact that at the time of accident, it was being used to transport patients who had undergone eye-surgery; secondly, it was not the case of any medical emergency for the purpose of which the patients were being transported in the offending vehicle at the time of the accident in order to provide them medical aid, rather it was only after the eye-surgery was completed, that the patients were being transported from the Barmer Netra Jyoti Hospital to their respective places and therefore, the vehicle at the time of the accident was being merely used for the purpose as specified in the Registration Certificate (Downloaded on 03/09/2024 at 08:55:48 PM) [2024:RJ-JD:35304] (22 of 23) [CMA-2729/2016] (Ex.4), i.e. as a Light Commercial Vehicle and not that of an Ambulance; thirdly, it is an admitted fact that the offending vehicle at the time of accident was not holding an effective and valid permit and also there is nothing on record which demonstrates that a valid and effective permit was issued in favour of the offending vehicle and thus, the appellant-insurance company cannot be held liable for the breach of compliance on part of the respondent no. 3/owner for not having a valid permit for the offending vehicle; fourthly, inasmuch as the definition of "Ambulance" under the Appendix X("Types of Motor Vehicles at a Glance") of the Central Motor Vehicle Rules, 1989 is concerned, the offending vehicle was not an Ambulance and also was not being used for emergency transportation of the persons as mentioned in the definition, therefore, the exemption under Section 66(3)(c) of the MV Act, which exempts the vehicles being used solely for Ambulance purposes to have a permit, cannot be extended to the offending vehicle.
31. Thus, in view of above discussion, the instant misc. appeals preferred by the appellant-Insurance Company are partly allowed and the appellant/insurance company is exonerated from its liability to pay the compensation as determined by the learned Tribunal. The impugned award dated 11.08.2016 passed by the learned tribunal is modified accordingly.
32. If any amount has been disbursed to the respondents/claimants, the claimants shall refund back the said amount along with interest @ 6% p.a., however, the respondents/ claimants shall be entitled to get amount of compensation (Downloaded on 03/09/2024 at 08:55:48 PM) [2024:RJ-JD:35304] (23 of 23) [CMA-2729/2016] awarded by learned Tribunal from respondent No.2 and 3, Driver and Owner of the vehicle, respectively.
33. Record of the Tribunal be sent back forthwith.
(DR. NUPUR BHATI),J 360-367/devesh/-
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