Madhya Pradesh High Court
The New India Insurance Co. Ltd. vs Sunil Minor Through His Natural ... on 25 July, 2024
Author: Hirdesh
Bench: Hirdesh
1 CR-443-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 25th OF JULY, 2024
CIVIL REVISION No. 433 of 2023
THE NEW INDIA ASSURANCE CO. LTD.
Versus
VIKAS S/O KAILASH (MINOR) THROUGH HIS NATURAL
GUARDIAN AND NEXT FRIEND FATHER KAILASH AND OTHERS
Appearance:
Shri Pradip Kumar Gupta and Shri Bhashkar Agrawal, learned counsel
for the petitioner.
Shri Vishal Sharma, learned counsel for the respondent no.3.
WITH
CIVIL REVISION No. 432 of 2023
THE NEW INDIA ASSURANCE CO. LTD.
Versus
AVINASH @ SUJAL S/O RAJESH CHOUHAN (MINOR) THROUGH
HIS NATURAL GUARDIAN AND NEXT FRIEND FATHER RAJES
AND OTHERS
Appearance:
Shri Pradip Kumar Gupta and Shri Bhashkar Agrawal, learned
counsel for the petitioner.
Shri Vishal Sharma, learned counsel for the respondent no.3.
CIVIL REVISION No. 434 of 2023
THE NEW INDIA INSURANCE CO. LTD.
Versus
SACHIN S/O HARI CHOUHAN MINOR THORUGH HIS NATURAL
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 26-07-2024
11:08:31
2 CR-443-2023
GUARDIAN AND NEXT FRIEND FATHER HARI AND OTHERS
Appearance:
Shri Pradip Kumar Gupta and Shri Bhashkar Agrawal, learned
counsel for the petitioner.
Shri Vishal Sharma, learned counsel for the respondent no.3.
CIVIL REVISION No. 435 of 2023
THE NEW INDIA INSURANCE CO. LTD.
Versus
LOKESH MINOR THROUGH HIS NATURAL GUARDIAN AND NEXT
FRIEND FATHER JITENDRA AND OTHERS
Appearance:
Shri Pradip Kumar Gupta and Shri Bhashkar Agrawal, learned
counsel for the petitioner.
Shri Vishal Sharma, learned counsel for the respondent no.3.
CIVIL REVISION No. 436 of 2023
THE NEW INDIA ASSURANCE CO. LTD
Versus
RITIKA D/O SHRI RAJESH CHOUHAN (MINOR) THROUGH HIS
NATURAL GUARDIAN AND NEXT FRIEND FATHER RAJESH AND
OTHERS
Appearance:
Shri Pradip Kumar Gupta and Shri Bhashkar Agrawal, learned
counsel for the petitioner.
Shri Vishal Sharma, learned counsel for the respondent no.3.
CIVIL REVISION No. 437 of 2023
THE NEW INDIA INSURANCE CO. LTD.
Versus
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 26-07-2024
11:08:31
3 CR-443-2023
RAJ S/O AJAY CHOUHAN MINOR THROUGH NATURAL GUARDIAN
AND NEXT FRIEND FATHER AJAY AND OTHERS
Appearance:
Shri Pradip Kumar Gupta and Shri Bhashkar Agrawal, learned
counsel for the petitioner.
Shri Vishal Sharma, learned counsel for the respondent no.3.
CIVIL REVISION No. 438 of 2023
THE NEW INDIA ASSURANCE CO. LTD.
Versus
ROHIT S/O SHRI AJAY CHOUHAN (MINOR) THROUGH HIS
NATURAL GUARDIAN AND NEXT FRIEND FATHER AJAY AND
OTHERS
Appearance:
Shri Pradip Kumar Gupta and Shri Bhashkar Agrawal, learned
counsel for the petitioner.
Shri Vishal Sharma, learned counsel for the respondent no.3.
CIVIL REVISION No. 439 of 2023
THE NEW INDIA INSURANCE CO. LTD.
Versus
KU. ROSHNI S/O BABU DAWARIYA MINOR THROUGH NATURAL
GUARDIAN AND NEXT FRIEND FATHER BABU AND OTHERS
Appearance:
Shri Pradip Kumar Gupta and Shri Bhashkar Agrawal, learned
counsel for the petitioner.
Shri Vishal Sharma, learned counsel for the respondent no.3.
CIVIL REVISION No. 440 of 2023
THE NEW INDIA INSURANCE CO. LTD.
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 26-07-2024
11:08:31
4 CR-443-2023
Versus
YOGESH MINOR THROUGH HIS NATURAL GUARDIAN AND NEXT
FRIEND FATHER MAHESH AND OTHERS
Appearance:
Shri Pradip Kumar Gupta and Shri Bhashkar Agrawal, learned
counsel for the petitioner.
Shri Vishal Sharma, learned counsel for the respondent no.3.
CIVIL REVISION No. 441 of 2023
THE NEW INDIA INSURANCE CO. LTD.
Versus
RITESH S/O MITHUN MINOR THROUGH NATURAL GUARDIAN
AND NEXT FRIEND FATHER MITHUN AND OTHERS
Appearance:
Shri Pradip Kumar Gupta and Shri Bhashkar Agrawal, learned
counsel for the petitioner.
Shri Vishal Sharma, learned counsel for the respondent no.3.
CIVIL REVISION No. 443 of 2023
THE NEW INDIA INSURANCE CO. LTD.
Versus
SUNIL MINOR THROUGH HIS NATURAL GUARDIAN AND NEXT
FRIEND FATHER RUKHDIYA AND OTHERS
Appearance:
Shri Pradip Kumar Gupta and Shri Bhashkar Agrawal, learned
counsel for the petitioner.
Shri Vishal Sharma, learned counsel for the respondent no.3.
MISC. APPEAL No. 3690 of 2023
THE NEW INDIA INSURANCE CO. LTD.
Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 26-07-2024
11:08:31
5 CR-443-2023
Versus
MANOJ AND OTHERS
Appearance:
Shri Pradip Kumar Gupta and Shri Bhashkar Agrawal, learned
counsel for the petitioner.
Shri Vishal Sharma, learned counsel for the respondent no.3.
ORDER
The aforesaid Civil Revisions and Miscellaneous Appeal are being disposed of by this common order as they arise from the same award.
2. These civil revisions under Section 115 of the CPC and miscellaneous appeal under Section 173(1) of the Motor Vehicles Act have been filed by the Insurance Company against the award dated 28.01.2023 passed by Ist Additional Member MACT, Barwani in Claim Cases Nos.95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105 and 106 of 2021 on account of exonerating the it from the liability.
3. The brief facts of the case are that the claimants in all the cases filed claim petition for compensation under Section 166 of the Motor Vehicles Act against the petitioner and respondents no.2 and 3 and alleged that on 06.10.2020 respondent no.1 was travelling in a bus bearing registration no.GJ-17-UU-4477, at that juncture respondent no.2 drove the said vehicle rashly and negligently and dashed the same in a tree situated ahead of culvert at Rajpur Anjad Road, as a result of which respondent no.1 sustained grievous injuries in various parts of his body. The accident was reported to police station Anjad, district Barwani which after investigation filed charge sheet against the respondent no.2. The respondent no.3 is the Signature Not Verified Signed by: REENA JOSEPH Signing time: 26-07-2024 11:08:31 6 CR-443-2023 owner of the offending vehicle.
4. The driver and owner/respondents no.2 and 3 and appellant Insurance Company filed their written statement before the Tribunal. The Tribunal framed the issues and after taking the evidence of the parties, allowed the claim petition awarding compensation.
5. Being aggrieved by the impugned award, counsel for the Insurance Company filed these appeals on the ground that at the time of accident the offending vehicle was insured with the Insurance Company and was plying against the condition of the Insurance policy i.e. the accident took place on the route which was not permitted by the RTO.
6. The main question arises in these appeals is "whether the offending vehicle was not plying on the route for which the route permit was issued by the authority?"
7. Learned counsel for the Insurance Company submitted that he examined the RTO Mitu Shah (AW-2) who stated that the vehicle was plying against the condition of the insurance policy as the vehicle was granted permit on the date of accident for route Dahod-Pitol-Jhabua-Kundanpur- Ranapur-Jobat-Kukshi-Barwani-Palsamud-Sendhwa and then return to Dahot, but the accident occurred on Rajpur-Anjad road which is no covered in the route permit.
8. Learned counsel for the respondent submitted that accident occurred on Rapur-Anjad road and it was not mentioned in the route permit, but there is no alternate route for going to Palsamud, hence, this is not violation of the route permit.
Signature Not Verified Signed by: REENA JOSEPH Signing time: 26-07-2024 11:08:317 CR-443-2023
9. On perusal of the evidence of Mitu Shah (AW-2) it is clear that according to Ex.D-3 and Ex.D-4 route permit Rajpur-Anjad was not mentioned in the route permit and no suggestion was given to Mitu Shah (AW-2) that there is no alternate route for going to Palsamud. So, in the absence of this suggestion, it is clear that from the evidence of Mitu Shah (AW-2) Rajpur-Anjad was not in the route permit. It is clear cut violation of the route permit.
10. Now the question arises is that what is the impact of this.
11. Learned counsel for the respondent has argued that as far as the first issue is concerned, with regard to liability of the Insurance Company, the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. v. Nicolletta Rohtati : 2002 ACJ 1950 (SC) has elaborately dealt with the scope of Section 149 (2) of the Motor Vehicle Act. It has categorically held that the Insurance Company cannot avoid its liability on any other ground except those mentioned in sub-Section (2) of Section 149 of 1988 Act.
12. On the other hand, learned counsel for the Insurance Company argued that as per the law laid down by this Court in the case of Ram Sujan Tiwari v. Sita Gupta & Others as reported in 2009 ACJ 437 and the law laid down in the case of Pradeep Son of Sujanmal Jain v. Mangilal W/o Balu Bhil & Others as reported in 2009 (II) MPJR 163 since the route permit was not available, therefore, the Insurance Company has been rightly exonerated from its liabilities.
13. After hearing the learned counsel for the parties on perusal of the record and the ratio of judgment in the case of National Insurance Co. Ltd. v.
Signature Not Verified Signed by: REENA JOSEPH Signing time: 26-07-2024 11:08:318 CR-443-2023 Challa Bharathamma & Others as reported in 2004 ACJ 2094 is that the High Court erred in holding that since the offending vehicle was not having any permit, therefore, the question of violation of any condition thereof does not arise. In this backdrop, the Hon'ble Supreme Court held the view of the High Court fallacious and further held that 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. It has, in continuation, mentioned that 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. When this complete decision is taken into consideration in terms of the provisions contained in Section 149 (2) (a) (i) (a), then the requirement is that the defence available to the Insurance Company is non-availability of a permit to ply for hire or reward. When this is read with Section 2 (31) of the Motor Vehicles Act, 1988, which defines permit means a permit issued by a State or Regional Transport Authority or an Authority prescribed in this behalf under this Act authorizing the use of a motor vehicle as a transport vehicle, then it is apparent that the purpose of permit is to authorize a vehicle to be used either as a transport vehicle or as a goods vehicle. Route permit has not been defined in the Motor Vehicle Act. There is no mention of words 'route permit' in Section 149 (2), therefore, in the light of the law laid down by the Hon'ble Supreme Court in the case of National Insurance Co. Ltd. v. Nicolletta Rohtagi (supra) unless and until there is infraction of any of the conditions mentioned in Section 149 (2), defence is not available to the Insurance Company and, therefore, the Punjab and Haryana High Court in Signature Not Verified Signed by: REENA JOSEPH Signing time: 26-07-2024 11:08:31 9 CR-443-2023 the cases of Moti Ram v. ICICI Lombard & Others as reported in 2015 (1) TAC 618 (P&H), Mohinder Singh v. Lakhwinder Kaur & Others as reported in 2018 ACJ 118 so also Mani Ram Aggarwal (deceased) through his L.Rs. v. United Indian Insurance Co. Ltd. & Others as reported in 2017 ACJ 1082 has laid down the law that where there was no violation of the terms and conditions of the policy and merely the vehicle operated on a route different from the route permit, it will not constitute violation of the terms and conditions of the insurance policy.
14. But the fact of the matter is that as per the judicial discipline, the Division Bench decision passed by the Hon'ble Division Bench of this Court in the case of Ram Sujan Tiwari v. Sita Gupta & Others as reported in 2009 ACJ 437 is binding on this Court as a Single Judge Bench. Therefore, this Court in the terms of the said judicial discipline being bound by the ratio of the judgment laid down in the case of Ram Sujan Tiwari (supra), has to bow down to the ratio and accept the proposition that even in case of violation of route permit, the insurer shall be exonerated from its liability to jointly and severally satisfy the claim alongwith the owner.
15. However, in the light of the law laid down by the Hon'ble Supreme Court in the case of Pappu & Others v. Vinod Kumar Lamba & Another as reported in 2018 (1) TAC 360 (SC) , the award needs to be substituted to the extent that the Insurance Company shall satisfy the award and will be entitled to recover the same from the owner of the offending vehicle.
16. In view of the aforesaid discussion, the civil revisions and Signature Not Verified Signed by: REENA JOSEPH Signing time: 26-07-2024 11:08:31 10 CR-443-2023 miscellaneous appeal are allowed and Insurance Company shall be exonerated from the liability to jointly and severally and satisfy the claim along with the owner. The Insurance Company shall satisfy the award and will be entitled to recover the same from the owner of the offending vehicle.
(HIRDESH) JUDGE RJ Signature Not Verified Signed by: REENA JOSEPH Signing time: 26-07-2024 11:08:31