Himachal Pradesh High Court
J.B. Pipes vs Madan Lal And Ors. on 3 October, 2007
Equivalent citations: 2008ACJ574
JUDGMENT V.K. Gupta, C.J.
1. Respondent No. 2 absent despite service and having appeared earlier through an advocate; hence, set ex parte.
2. Reply filed by the respondent No. 3 has been perused. Heard. Cause shown is sufficient. Delay in filing the appeal is condoned. The appeal shall be treated to have been filed in time. The application is disposed of.
F.A.O. No. 395 of 2007:
3. The appeal is taken up for admission today. Heard. The vehicle involved in the accident was a truck bearing registration No. PB 08-V 6775. The contention of the claimant was that while the claimant was going on a bicycle, this truck being driven by respondent No. 1 in a rash and negligent manner hit against the claimant causing injuries to him.
4. The following five issues were framed:
(1) Whether the respondent No. 1, Jag-tar Singh was driving vehicle truck No. PB 08-V 6775 in a rash and negligent manner on Una-Hoshiarpur Road near Jhalera at about 2.30 p.m. on 3.4.2000 and while driving so, struck the truck with Madan Lal, who was going on his bicycle on the road side at that time and thereby said Madan Lal sustained injuries to his person, as alleged? OPP (2) If issue No. 1 is proved in the affirmative whether the petitioner is entitled for compensation as claimed, if so, to what extent and from whom? OPP (3) Whether the respondent No. 1 being driver was not in possession of the valid driving licence as alleged? OPR-3 (4) Whether the truck was being plied in violation of the terms and conditions of the fitness certificate and route permit, as alleged? OPR-3 (5) Relief.
5. It is with respect to finding on issue No. 4, which finding has been challenged by the appellant in this appeal that the learned Tribunal held that because the truck was being plied in an area not covered by the route permit, this being a breach of a policy condition in terms of Section 149 (2) of Motor Vehicles Act, 1988, the owner-insured-appellant was liable to pay the award amount even though in the first instance this amount was to be paid by insurer, respondent No. 3, A photocopy of the route permit was exhibited as Exh. RW3A. It was the admitted case of the appellant in the Tribunal and no contrary or different stand has been taken before this Court that as on the date of accident, the route permit did not cover any part of the State of Himachal Pradesh and yet the vehicle had entered Himachal Pradesh and it is in this State that accident had occurred. An attempt was made by the appellant to raise a plea that some entry slip had been issued but no slip of any kind was produced in evidence. No witness also stated any fact about this aspect.
6. Learned Counsel appearing for the appellant submits that plying a vehicle in an area not covered by route permit does not amount to a fundamental breach of a policy condition.
7. In support of this contention, he has referred to a judgment of the Supreme Court in the case of State of Maharashtra v. Nanded-Parbhani Z.LB.M.V. Operator Sangh am afraid, this judgment is of no help whatsoever to the appellant because in this case, the Supreme Court was dealing with the applicability and violation of Section 207 of the Motor Vehicles Act, 1988, with respect to a fact situation where action was being taken against the luxury buses for carrying passengers excess in number to that allowed by the route permit. This was not a case where the violation alleged related to the plying of the vehicle without the route permit. Apart from this, applicability of Section 207 is quite distinct than the applicability of Section 149 (2) with respect to a defence available to an insurer in a claim petition filed under Section 166 of the Motor Vehicles Act, 1988. Both sections operate in different fields.
Section 149(2) is very clear on the subject. It clearly lays down that it is open to an insurer to defend a claim on the ground of the breach of a policy condition excluding the use of vehicle for hire or reward where the vehicle is not covered by a permit to ply for hire or reward. The expression, "where the vehicle is not covered by a permit to ply for hire or reward", includes a situation where the vehicle is being plied in an area which is outside the coverage of the route permit.
8. Apex Court in the case of National Insurance Co. Ltd. v. Challa Bharathamma , has clearly held and taken a definite view that a person without a 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. The following observations are apposite and I quote:
(12) High Court was of the view that since there was no permit, the question of violation of any condition thereof does not arise. The view is clearly fallacious. 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. 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. The acceptability of the stand is a matter of adjudication. The question of policy being operative had no relevance for the issue regarding liability of the insurer. High Court was, therefore, not justified in holding the insurer liable.
9. The learned Tribunal was absolutely correct in its view with respect to issue No. 4 that the appellant had violated the aforesaid policy condition and, therefore, in the ultimate analysis, the appellant was liable to pay the award amount. No interference is called for. The appeal is dismissed in limine.