Punjab-Haryana High Court
Swaran Singh vs Satish Chand & Another on 23 May, 2012
Author: Jitendra Chauhan
Bench: Jitendra Chauhan
FAO No.5208 of 2011 -1 -
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
FAO No.5208 of 2011
In MACT Case No.280 of 2009
Date of decision: 23.5.2012
Swaran Singh ...Appellant
Versus
Satish Chand & another .....Respondents
CORAM:HON'BLE MR. JUSTICE JITENDRA CHAUHAN
Present: Mr. Gaurav Kathuria Advocate,
for the appellant.
Mr. Subhash Goyal, Advocate
for respondent No.2.
JITENDRA CHAUHAN, J. (ORAL)
The appellant (driver and registered owner of the offending vehicle) has preferred this appeal against the impugned award dated 19.10.2010, passed by the learned Motor Accident Claims Tribunal, Faridabad, whereby the learned Tribunal has given right to recover 70% of the amount of compensation from the appellant-driver and registered owner of the offending vehicle.
Brief facts of the case are that on 4.2.2009, Satish Chand along with Satish Kumar was going from village Majhawali to Noida to join his duty on a motorcycle bearing No. HR-29-S- 5808. When they reached near Pulia at village Cheersi, District Faridabad, in the meantime, offending dumper bearing FAO No.5208 of 2011 -2 - registration No. HR-38-0027 being driven by the appellant came from the side of village Cheersi and struck against the motorcycle of Satish Chand. As a result thereof Satish Chand received multiple injuries including fracture in his right leg, both knees and also head injury.
Claimants preferred claim petition bearing No.280 of 2009 before the Motor Accidents Claims Tribunal Faridabad on account of injuries sustained by Satish Chand in a motor vehicular accident that took place on 4.2.2009.
The Tribunal from the pleadings of the parties framed the following issues:-
1.Whether the accident in question took place due to rash and negligent driving of Dumper No. HR-38/P-0027 by Swaran Singh respondent No.1. OPP
2.If issue No.1. is proved to what amount of compensation petitioner is entitled to and from whom? OPP
3.Whether the petition is not maintainable in the present form? OPR
4.Whether the petitioner has no locus standi and cause of action to file the present petition? OPR
5.Whether the respondent No.1. was not holding a valid and effective driving license at the time of accident and the insured has also violated the other terms and conditions of the policy? If so to what effect? OPR
6.Relief.
The learned Tribunal after appreciating the evidence FAO No.5208 of 2011 -3 - produced on record accepted the claim petition and has given right to recover 70% of the amount of compensation from the appellant-driver and registered owner of the offending vehicle.
Feeling dissatisfied by the award, the appellant-driver and registered owner of the vehicle has preferred the present appeal for setting aside the impugned award.
Learned counsel for the appellant contends that the learned Tribunal has not appreciated the evidence produced on record by the appellant-driver and registered owner of the offending vehicle. He contends that the appellant was having valid route permit to ply the vehicle in question bearing registration No HR-38P-0027 being a transport vehicle in the State of Haryana at the time of the accident. The said route permit was valid upto 1.5.2012, therefore the learned Tribunal erred in fastening the liability to pay compensation upon the appellant, the registered owner of the vehicle whereas, the liability should have been fastened upon Insurance Company being insurer of the offending vehicle.
Learned counsel for the respondent contends that the appellant-registered owner of the vehicle was not having requisite route permit at the time of the accident. He contends that the appellant-owner of the offending vehicle violated the terms and conditions of the insurance policy therefore, the learned Tribunal has rightly fastened the liability upon the appellant to pay 70% compensation amount to the claimant.
I have heard the learned counsel for the parties and FAO No.5208 of 2011 -4 - perused the record.
Hon'ble the Supreme Court in Appeal Civil 6178 of 2004 National Insurance Corporation Ltd. Vs.. Chella Bharathamma & others observed as under:-
As was observed in the said case the statutory defences which are available to the insurer to contest the claim are confined to those provided in sub-section (2) of Section 149.High Court was of the view that since there was no permit, thequestion of violation of any condition thereof does not arise. Theview is clearly fallacious. A person without permit to ply a vehiclecannot be placed at a better pedestal vis-'-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 insurer. High Court was, therefore, not justified in holding the insurer liable.The residual question is what would be the appropriate direction.Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit.It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject FAO No.5208 of 2011 -5 - matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the offending vehicle shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executing Court shall take assistance of the concerned Regional Transport Authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e. The insured. In the instant case considering the quantum involved we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured. The appeals are disposed of with the above observation. There will be no order as to costs".
The Tribunal returned the finding against the appellant only on the ground that the appellant was not holding route permit on the date of the accident. Learned counsel for the appellant placed on record, photocopy of the route permit issued by the Secretary, District Transport Authority-cum-District Transport Officer, Faridabad containing verification from his office, which is taken on record as Mark-A. The Insurance company failed to controvert it. Thus, there is no breach or FAO No.5208 of 2011 -6 - violation of the terms and conditions of the insurance policy on the part of the appellant. Therefore, the respondent No.2. Insurance Company is to safisy the award in the same ratio as ordered by the learned Tribunal.
However, it is made clear that if the fact of having valid route permit is found to be wrong, then the Insurance Company will have a right to move this Court for review/recall of this judgment.
Keeping in view the above, the finding on issue No.2. recorded by the learned Tribunal is modified to the above extent.
FAO No.5208 of 2011 is allowed to the modification referred to above.
23.5.2012 (JITENDRA CHAUHAN) ritu/aarti JUDGE